On Judge Kozinski’s Dissent in U.S. v. Cruz

United States v. Cruz (our post here, with briefs) has been getting a fair bit of attention these days in the news (LA Times; How Appealing here and here; Indianz collects articles), probably because Judge Kozinski dissented so strongly.

It is very interesting to see the Ninth Circuit struggle over who is an Indian for purposes of federal criminal jurisdiction, esp. given how Indian tribes struggle over it. But, unfortunately, cases like this will give United States Attorney’s Offices with Indian Country jurisdiction all the more reason to decline to prosecute Indian Country crimes.

The majority’s opinion, in sort of a backwards way, is heading in the right direction. Eventually, I suspect, the federal courts will abandon the common law free-for-all and adopt a bright-line rule based on tribal citizenship, a standard more in line with the political status test used in Morton v. Mancari.

Right now, in the Ninth Circuit, the test is, according to the Cruz majority:

The Bruce test requires that the Government prove two things: that the defendant has a sufficient “degree of Indian blood,” and has “tribal or federal government recognition as an Indian.” Id. at 1223, 1224 (quoting United States v. Keys, 103 F.3d 758, 761 (9th Cir. 1996)).

The first part, “sufficient degree of Indian blood” apparently can be something less than 25 percent (in Cruz, it was about 22 percent). Some tribes have minimal Indian blood quantum requirements, resorting to lineal descendancy (e.g., Cherokee Nation of Oklahoma, Sault Ste. Marie Tribe of Chippewa Indians).

It’s the second part where the Cruz majority and Judge Kozinski parted. Judge Kozinski’s dissent is a defense of the second prong (but more so a dramatic attack on the majority’s reasoning). He’s right in many respects. Cruz should be considered an Indian and definitely is, at least by his tribal community. But just because his community subjectively views him as one their own, that’s sufficient to invoke the awesome power of the federal criminal laws? The majority wants something more. And what the majority should do — and perhaps the Ninth Circuit will eventually do — is adopt a bright-line rule on what “tribal or federal government recognition as an Indian means.”

In other words, citizenship in a federally recognized tribe should be the rule. It’s simple and easy, and objective. It’s consistent with the political status test of Mancari, and seems less like an arbitrary application of a race-based law. Plus, if A.U.S.A.’s only have to provide evidence that a criminal defendant is a tribal citizen, there is less effort expended in proving the factual predicates to federal criminal jurisdiction.

Ironically, Judge Kozinski’s dissent defending the broader application of the Bruce test is both a defense of a balancing test he decries, and a defense of a race-based standard. It’s ironic because Judge Kozinski once predicted the end of race-based rules in federal Indian law in Williams v. Babbitt, in which he wrote for a majority that struck down laws designed to protect the Alaskan Native reindeer industry on the grounds that they were race-based.

One might argue that there’s a pretty good reason for the definition of Indian to include persons who aren’t members of federally recognized members of Indian tribes, but who are plainly Indian. I’d like to be persuaded that there are good reasons.