(So, just who is *an Indian*, it appears the court has struggled for some time to find a *fix*)
Federal courts try to decide who is legally Indian
Wednesday, August 24, 2005
When the U.S. Supreme Court in 1990 ruled that tribal governments lack the inherent authority to prosecute members of other tribes, Congress quickly reacted by passing the "Duro fix."
The issue has already been tested. In a case involving an ex-Bureau of Indian Affairs officer who embraced his Indian heritage but isn't enrolled in a tribe, a federal judge ruled that he isn't legally Indian and therefore not subject to the jurisdiction of the Spokane Tribe of Washington, which is part of the 9th Circuit.
"At that point, though, he says, 'Wait, I'm not Indian,'" said Bethany Berger, an assistant professor of law at Wayne State University, at a recent Indian law conference. "This seems unfair -- that a guy that's taken advantage of being Indian would now be able be able to legally disclaim it when it's not working out for him."
But Berger pointed out a flip-side to the debate in another 9th Circuit case, where the court reversed a Montana woman's conviction of child abuse because federal prosecutors charged her as a non-Indian. Although she isn't enrolled in a tribe, the court said she presented enough evidence to prove she was legally Indian.
"There might have been defenses" the woman could have raised were she charged as an Indian, Berger said at the Federal Bar Association conference in April 2005. "It might have changed things a little bit."
The decision means that courts will now have to decide who is and isn't Indian, a task that has often been left to the agencies of the executive branch. In the two cases mentioned, the 9th Circuit looked at whether the person is "perceived" as a member of a tribe, not at blood-quantum or actual enrollment.
As with the other cases, however, the 9th Circuit responded that the issue is not one of race. "The [Duro fix] subjects Means to Navajo criminal jurisdiction, not because of his race, but because of his political status as an enrolled member of an Indian tribe, even though it is a different tribe than the one that seeks to assert jurisdiction over him," the court wrote.
(are they settling on Indian means enrolled member of a tribe - I guess not)
Judge denies tribal jurisdiction over Indian descendant
Wednesday, December 8, 2004
Despite the U.S. Supreme Court's holding that tribes have sovereignty over all Indians, a federal judge has denied a Washington tribe criminal jurisdiction over a man who is Indian by blood but not enrolled in a tribe.