10th Circuit wrestles with burden of proving Native status in tribal crimes

In a decision that could reshape federal jurisdiction over crimes on tribal lands, a 10th Circuit panel set aside two 2024 aggravated sexual-abuse convictions, ruling that prosecutors must establish beyond reasonable doubt that a defendant lacks Native American ancestry. The panel relied on the 2001 U.S. v. Prentiss ruling and overturned verdicts against Dennis Herbert in Oklahoma and Joel Ruiz on the Jicarilla Apache Reservation in New Mexico.

U.S. Attorney Paige Messec pressed the en banc court to reexamine a centuries-old exemption that barred the federal government from prosecuting crimes between Native Americans on reservations. Defense counsel contended that tribal status is an affirmative defense, while several judges questioned whether Congress intended the status issue to be a jurisdictional element. The case also featured an amicus brief from UC Berkeley law professor Kevin Washburn, warning against merging distinct statutes. The full court, comprising judges appointed by presidents from both parties, has not set a timetable for a final ruling.