The case is United States v. Delacruz-Slavik (E.D. Mich.), and the court held that whether the defendant is an “Indian” is an element of the crime to be decided by a jury. An excerpt:

Defendant notes that he is not an enrolled tribal member and thus does not satisfy the first, and most important, of the Bruce factors. As noted above, this is not an absolute requirement. The government alleges that Defendant has received government recognition through receipt of assistance reserved only to Indians and has enjoyed benefits of tribal affiliation. Namely, Defendant took seven parenting classes at the Nimkee Memorial Wellness Center in 2008, and has had many Nimkee dental, medical and behavior health/mental health and substance abuse appointments between 1996 and 2009. Gov’t’s Response & Brief to Def.’s Mot. to Dismiss Indictment 5. These services allegedly are not available to non-Indians. Id. The government estimates that Defendant has had 100 or more tribal-related organization appointments. The government alleges that Defendants records identify Defendant as an “Indian” and “Native American,” as well as Defendant identifying himself as an “Indian” and “Native American.” Id. Defendant states that he only received some tribal services allowed to him as an immediate family member of a Tribal Member, but that he himself has never qualified for membership and is not a recognized member. Def.’s Mem. in Supp. of Mot. to Dismiss Indictment 2. There is also evidence that Defendant has social recognition as an Indian through residence on a reservation and participation in Indian social life.

Still seems to be an interesting constitutional question whether a jury empaneled in Detroit is really competent to decide beyond a reasonable doubt that a person with the above factors, and who is not an enrolled tribal member, is an “Indian.” Without much doubt, that Detroit jury will consist entirely of non-Indians (and any Detroit Indians will be excluded from the jury, to be sure).

Here are the materials:

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