United States v. Cruz

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,  No. 07-30384
Plaintiff-Appellee,
v.  D.C. No.
CR-07-00052-SEH
CHRISTOPHER PATRICK CRUZ,
OPINION
Defendant-Appellant.

Appeal from the United States District Court
for the District of Montana
Sam E. Haddon, District Judge, Presiding

Argued and Submitted
August 11, 2008—Billings, Montana

Filed February 10, 2009

Before: Alex Kozinski, Chief Judge, Stephen Reinhardt and
Sidney R. Thomas, Circuit Judges.

Opinion by Judge Reinhardt;
Dissent by Chief Judge Kozinski

1595
 UNITED STATES v. CRUZ 1597

COUNSEL

Ryan M. Archer, Assistant United States Attorney, United
States Attorney’s Office for the District of Montana, Helena,
Montana, for the plaintiff-appellee.
1598 UNITED STATES v. CRUZ
Joseph E. Thaggard, Assistant United States Attorney, United
States Attorney’s Office for the District of Montana, Helena,
Montana, for the plaintiff-appellee.

R. Henry Branom Jr., Assistant Federal Defender, Federal
Defender for the District of Montana, Great Falls, Montana,
for the defendant-appellant.

OPINION

REINHARDT, Circuit Judge:

At first glance, there appears to be something odd about a
court of law in a diverse nation such as ours deciding whether
a specific individual is or is not “an Indian.”1 Yet, given the
long and complex relationship between the government of the
United States and the sovereign tribal nations within its bor-
ders, the criminal jurisdiction of the federal government often
turns on precisely this question — whether a particular indi-
vidual “counts” as an Indian — and it is this question that we
address once again today.

As our court has noted before, the law governing “[t]he
exercise of criminal jurisdiction over Indians and Indian coun-
try [encompasses] a ‘complex patchwork of federal, state, and
tribal law,’ which is better explained by history than by
logic.” United States v. Bruce, 394 F.3d 1215, 1218 (9th Cir.
2005) (quoting Duro v. Reina, 495 U.S. 676, 680 n.1 (1990)).
From that history, and from various cases we have decided
over the years, our circuit has distilled a specific test for deter-
mining whether an individual can be prosecuted by the federal
government under 18 U.S.C. § 1153, a statute governing the
conduct of Indians in Indian Country. We announced that test
1
Although some prefer the term “Native American” or “American Indi-
an,” we use the term “Indian” throughout this opinion as that is the term
employed in the statutes at issue in this appeal.
 UNITED STATES v. CRUZ 1599
in United States v. Bruce, 394 F.3d 1215 (9th Cir. 2005), a
case that both parties agree controls our analysis today.
Because the evidence adduced during Christopher Cruz’s trial
does not satisfy any of the four factors outlined in the second
prong of the Bruce test, we hold that, even when viewed in
the light most favorable to the government, his conviction
cannot stand. The district court’s failure to grant Cruz’s
motion for judgment of acquittal was plain error, and accord-
ingly we reverse.

I.

Cruz was born in 1987 to Roger Cruz and Clara Clarice
Bird. His father is Hispanic and his mother is 29/64 Blackfeet
Indian and 32/64 Blood Indian. The Blackfeet are a federally
recognized tribe based in northern Montana; the Blood Indi-
ans are a Canadian tribe. Given his parents’ heritage, Cruz is
29/128 Blackfeet Indian and 32/128 Blood Indian.

For a period of three or four years during his childhood,
Cruz lived in the town of Browning, Montana on the Black-
feet Reservation. Between the age of seven and eight, he
moved off the reservation and spent the next ten years living
first with his father in Great Falls, Montana and subsequently
with his uncle in Delano, California. Neither Great Falls nor
Delano is located on an Indian reservation or otherwise
located in Indian country.2 In 2005, Cruz returned to Montana,
living for a period of time in the town of Cut Bank, which is
located just outside the boundaries of the Blackfeet Reserva-
tion. Shortly before the incident underlying this case, Cruz
2
“[T]he term ‘Indian country’ . . . means (a) all land within the limits
of any Indian reservation under the jurisdiction of the United States Gov-
ernment . . . (b) all dependent Indian communities within the borders of
the United States whether within the original or subsequently acquired ter-
ritory thereof . . . and (c) all Indian allotments, the Indian titles to which
have not been extinguished, including rights-of-way running through the
same.” 18 U.S.C. § 1151.
1600 UNITED STATES v. CRUZ
moved back to Browning, where he rented a room at the
Town Motel.

On December 21, 2006, Cruz and a group of friends spent
a part of the evening drinking in his room at the Town Motel.
While standing outside the motel talking on a cordless phone
to his girlfriend, Cruz was approached by Eudelma White
Grass, who had been drinking in a neighboring room and was
heavily intoxicated. An altercation took place in which White
Grass was severely injured.

Cruz was arrested and charged with “[a]ssault resulting in
serious bodily injury,” 18 U.S.C. § 113(a)(6), which is a fed-
eral offense when committed by an Indian on an Indian reser-
vation, 18 U.S.C. § 1153. He pled not guilty and went to trial,
where his Indian status was a contested issue. At the close of
the government’s case-in-chief, Cruz moved for judgment of
acquittal, contending that the government failed to establish
his Indian status by proof beyond a reasonable doubt.3 The
district court denied the motion. Cruz subsequently took the
stand in his own defense and was ultimately convicted. He
now appeals, arguing that there was insufficient evidence that
he is an Indian under § 1153 and that the district court com-
mitted reversible error when instructing the jury as to how to
determine his Indian status.

II.

The standard of review to be applied on appeal is contested
by the parties. We begin by observing that, even though the
question “of Indian status operates as a jurisdictional element
under § 1153,” Bruce, 394 F.3d at 1228, de novo review is not
appropriate given the posture of this case. Although jurisdic-
tional questions are ordinarily reviewed de novo, when a
defendant brings a motion for acquittal in order to challenge
3
As Cruz’s Indian status is the central issue on appeal, we discuss the
evidence introduced regarding this question in the text below.
 UNITED STATES v. CRUZ 1601
the sufficiency of the evidence underlying a jurisdictional ele-
ment, we owe deference to the jury’s ultimate factual finding.4
See United States v. Gomez, 87 F.3d 1093, 1097 n.3 (9th Cir.
1996) (citing United States v. Vasquez-Velasco, 15 F.3d 833,
838-39 (9th Cir. 1994)). Accordingly, if such a challenge is
properly made, we review the district court’s decision under
the standard applied to sufficiency-of-the-evidence chal-
lenges: “whether, after viewing the evidence in the light most
favorable to the prosecution, any rational trier of fact could
have found the essential elements of the crime beyond a rea-
sonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319 (1979)
(emphasis omitted); see United States v. Vizcarra-Martinez,
66 F.3d 1006, 1009-10 (9th Cir. 1995); see also United States
v. Morgan, 238 F.3d 1180, 1185-86 (9th Cir. 2001) (noting
applicability of this standard to jurisdictional elements).

Here, however, Cruz’s sufficiency-of-the-evidence chal-
lenge made at the close of the prosecution’s case-in-chief was
not preserved because no new challenge was made following
submission of all of the evidence. “The proper way . . . to
4
This is not the case when the defendant moves for acquittal at the close
of the government’s case-in-chief and the district court defers ruling on
that motion until it has reviewed all of the evidence. In that situation, we
review “the motion on the basis of the evidence at the time the ruling was
reserved.” Fed. R. Crim. P. 29(b). However, where, as here, the district
judge does not defer ruling but instead rules immediately, “a defendant
waives his objection to the trial court’s denial of a motion for acquittal . . .
if he elects to present evidence on his own behalf.” United States v. Alex-
ander, 48 F.3d 1477, 1490 n.10 (9th Cir. 1995). Under such circum-
stances, “all the evidence — including the evidence presented by the
defendant — can be considered.” Id.
We note that the terms of art “motion for judgment of acquittal” and
“challenge to the sufficiency of the evidence” are functionally equivalent:
“Rule 29 motions for acquittal do not need to state the grounds upon
which they are based because ‘the very nature of such motions is to ques-
tion the sufficiency of the evidence to support a conviction.’ ” United
States v. Viayra, 365 F.3d 790, 793 (9th Cir. 2004) (quoting United States
v. Gjurashaj, 706 F.2d 395, 399 (2d Cir. 1983)). Accordingly, we use the
terms interchangeably.
1602 UNITED STATES v. CRUZ
challenge the sufficiency of the government’s evidence per-
taining to [a] jurisdictional element . . . is a motion for acquit-
tal under Rule 29, presented at the close of the government’s
case-in-chief.”5 Morgan, 238 F. 3d at 1186 (internal quotation
marks omitted) (quoting United States v. Nukida, 8 F.3d 665,
672-73 (9th Cir. 1993). But should such a motion be denied,
it must be renewed following submission of all the evidence
or it is deemed waived. United States v. Alvarez-Valenzuela,
231 F.3d 1198, 1200 (9th Cir. 2000). Cruz failed to renew his
motion. As a result, the standard of review in this case rises
to the at least theoretically more stringent “plain error” stan-
dard. Id. at 1200-01 We say “theoretically” because, while
plain-error review appears more stringent in theory, it is hard
to comprehend how a standard can be any more stringent in
actuality than that ordinarily applied to sufficiency-of-the-
evidence challenges. As we observed in Vizcarra-Martinez:

[U]nder our ordinary test — the standard applicable
when the defendant makes all the proper motions —
we cannot reverse unless there is a clear showing as
to insufficiency: we must affirm if any rational trier
of fact could have found the evidence sufficient.
Thus, it is difficult to imagine just what conse-
quences flow from our application of the [plain
error] standard[ ] or to envision a case in which the
result would be different because of the application
of one rather than the other of the standards.

66 F.3d at 1010. Our case law, however, has repeatedly
parsed the increasingly thin differences between standards of
review, slicing ever finer and finer distinctions whose practi-
cal consequences are seemingly minuscule, if not micro-
5
Alternatively, the defendant may forego the opportunity to move for
acquittal at the close of the government’s case-in-chief and may instead
make such a motion after presenting a defense, see Fed. R. Crim. P. 29(a),
although prudent counsel are unlikely to pass on the opportunity to make
the motion at both junctures.
 UNITED STATES v. CRUZ 1603
scopic. As a result of these exercises in abstraction, our
standards of review continue to multiply, the relationships
between them growing more obscure with each iteration. Still,
because an existing decision of this court has clearly held that
plain-error review applies when a jurisdictional element is the
subject of an unrenewed motion for acquittal, we dutifully
apply that standard in this case. See Morgan, 238 F.3d at
1186; see also United States v. Singh, 532 F.3d 1053, 1056-57
(9th Cir. 2008).

Under plain-error review, reversal is permitted only when
there is (1) error that is (2) plain, (3) affects substantial rights,
and (4) “seriously affects the fairness, integrity, or public rep-
utation of judicial proceedings.” Johnson v. United States,
520 U.S. 461, 467 (1997) (quoting United States v. Olano,
507 U.S. 725, 732 (1993)). When a conviction is predicated
on insufficient evidence, the last two prongs of the Olano test
will necessarily be satisfied: A defendant’s “substantial
rights,” as well as the “fairness” and “integrity” of the courts,
are seriously affected when someone is sent to jail for a crime
that, as a matter of law, he did not commit, or when the court,
as a matter of law, has no jurisdiction to try him for the
alleged offense. See United States v. Dominguez Benitez, 542
U.S. 74, 81 (2004) (quoting Kotteakos v. United States, 328
U.S. 750, 776 (1946)); see also United States v. Garcia-
Guizar, 160 F.3d 511, 517 (9th Cir. 1998) (noting that even
under plain error review, a court should not “affirm a convic-
tion and send a defendant to prison or his death if the record
clearly showed that the evidence was insufficient” (quoting
Vizcarra-Martinez, 66 F.3d at 1010)); cf. United States v.
Mize, 756 F.2d 353, 355 (5th Cir. 1985) (“[E]rroneous
instructions concerning the essential jurisdictional element of
the crime charged affect substantial rights of the defendant.”).
Therefore, the analysis in this case turns primarily on the first
two Olano prongs: Was the denial of Cruz’s motion for judg-
ment of acquittal error, and was it plainly so? Because Cruz
“elect[ed] to present evidence on his own behalf . . . all the
evidence — including the evidence presented by the defen-
1604 UNITED STATES v. CRUZ
dant — can be considered” in this analysis. United States v.
Alexander, 48 F.3d 1477, 1490 n.10 (9th Cir. 1995).

III.

[1] A “defendant’s Indian status is an essential element of
a § 1153 offense which the government must allege in the
indictment and prove beyond a reasonable doubt.” Bruce, 394
F.3d at 1229. We recently established the test for determining
an individual’s Indian status under 18 U.S.C. § 1152 in
United States v. Bruce, 394 F.3d 1215 (9th Cir. 2005), and the
same test applies to the determination of Indian status under
§ 1152’s companion statute, 18 U.S.C. § 1153. The Bruce test
requires that the Government prove two things: that the defen-
dant 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)).

[2] Cruz concedes that he meets the first prong of the test
since his blood quotient is twenty-two percent Blackfeet.
Only the second prong, therefore, is at issue here. In Bruce we
outlined four factors that govern the second prong; those four
factors are, “in declining order of importance, evidence of the
following: ‘1) tribal enrollment; 2) government recognition
formally and informally through receipt of assistance reserved
only to Indians; 3) enjoyment of the benefits of tribal affilia-
tion; and 4) social recognition as an Indian through residence
on a reservation and participation in Indian social life.” Id. at
1224 (quoting United States v. Lawrence, 51 F.3d 150, 152
(8th Cir. 1995)); accord. United States v. Ramirez, 537 F.3d
1075, 1082 (9th Cir. 2008).6
6
In United States v. Ramirez, the only issue apparently raised by the par-
ties was whether “the documents produced at trial” were sufficient to dem-
onstrate that the individuals in question were in fact enrolled members of
the relevant tribe and therefore whether the first Bruce factor was satisfied.
537 F.3d at 1082. Presumably, since no other issue was addressed, the par-
 UNITED STATES v. CRUZ 1605
Taken in the light most favorable to the government, the
record reveals the following facts related to Cruz’s Indian sta-
tus:

1. Cruz is not an enrolled member of the Blackfeet
Tribe of Indians or any other tribe.

2. Cruz has “descendant” status in the Blackfeet
Tribe as the son of an enrolled member (his
mother), which entitles him to use Indian Health
Services, to receive some educational grants,
and to fish and hunt on the reservation.

3. Cruz has never taken advantage of any of the
benefits or services to which he is entitled as a
descendant.

4. Cruz lived on the Blackfeet Reservation from
the time he was four years old until he was
seven or eight. He rented a room in a motel on
the reservation shortly before the time of the
offense.

ties in Ramirez did not dispute that the other evidence presented at trial,
when combined with a finding that the individuals were enrolled mem-
bers, “was sufficient to establish [their] status as ‘Indians’ within the
meaning of § 1152.” Id. at 1083. As Bruce itself makes clear, “[t]ribal
enrollment is ‘the common evidentiary means of establishing Indian sta-
tus, but it is not the only means nor is it necessarily determinative’ . . . .
[E]nrollment, and indeed, even eligibility therefor, is not dispositive of
Indian status.” 394 F.3d at 1224-25 (quoting United States v. Broncheau,
597 F.2d 1260, 1263 (9th Cir. 1979)). Although the parties in Ramirez
raised only a limited question, the opinion specifically acknowledges the
Bruce test and the four applicable factors that are determinative of its sec-
ond prong. See Ramirez, 537 F.3d at 1082. Because the dispute on appeal
related to the facts underlying only one of the factors, the court had no rea-
son to note the relative weight of the various other factors — specifically,
that they are to be considered “in declining order of importance.” Bruce,
394 F.3d at 1224. But cf. Dissenting Op. at 1615.
1606 UNITED STATES v. CRUZ
5. As a descendant, Cruz was subject to the crimi-
nal jurisdiction of the tribal court7 and was at
one time prosecuted in tribal court.

6. Cruz attended a public school on the reservation
that is open to non-Indians and worked as a fire-
fighter for the federal Bureau of Indian Affairs,
a job that is also open to non-Indians.

7. Cruz has never participated in Indian religious
ceremonies or dance festivals, has never voted
in a Blackfeet tribal election, and does not have
a tribal identification card.

[3] Analyzing this evidence, it is clear that Cruz does not
satisfy any of the four Bruce factors. As to the first and most
important factor, it is undisputed that Cruz is not an enrolled
member of the Blackfeet Tribe or any other tribe. In fact,
Cruz is not even eligible to become an enrolled member of the
Blackfeet Tribe, as he has less than one quarter Blackfeet
blood, which is the minimum amount necessary for enrollment.8
7
The parties have not cited to us any Blackfeet ordinances or codes
establishing this point. As we explain infra pp.1611-12 & note 15, the fact
that charges were brought against Cruz in tribal court does not necessarily
mean the tribal court had jurisdiction over him. Our own reading of the
Blackfeet code suggests that perhaps the tribe’s criminal jurisdiction is
limited to enrolled members of the Blackfeet Tribe and other tribes. Cf.
BLACKFEET CODE § 1.1 (“The Blackfeet Tribal Court has jurisdiction over
all persons of Indian descent, who are members of the Blackfeet Tribe of
Montana and over all other American Indians unless its authority is
restricted by an Order of the Secretary of the Interior.”) (emphasis added).
It is undisputed that Cruz is not an enrolled member of the Blackfeet Tribe
or a member of any other American Indian tribe. However, because the
Director of Tribal Enrollment testified that Cruz was subject to the tribe’s
criminal jurisdiction by virtue of his descendant status, and because Cruz
did not contest this point below or on appeal, we assume for purposes of
our analysis that Cruz was subject to the tribal court’s jurisdiction.
8
We also note that BLACKFEET ORD. 14, which establishes “procedures
governing enrollment” and which was admitted into evidence at trial,
states that children born after August 30, 1962 must have “one-fourth
 UNITED STATES v. CRUZ 1607
See BLACKFEET CONST. art. II, amd. III, § 1(c). Our dissenting
colleague would hold that the government has “plainly” met
its burden under Bruce because it has established that Cruz
has “ ‘descendant’ status” and has therefore been “recog-
nized” by “the tribal authorities.” Dissenting Op. at 1614-15.
The government, however, has expressly waived any argu-
ment that Cruz satisfies the first Bruce factor, and does not
contend that his descendant status, in and of itself, is a factor
we should consider in performing the Bruce analysis.9 Rather,
the government’s argument is that “descendant status” is rele-
vant only insofar as it renders someone “eligible to receive
certain assistance reserved for Native Americans,” language
that directly tracks the second Bruce factor, except for substi-
tuting “eligible to receive” for actually receives. However, as
we explain below, mere eligibility for benefits is of no conse-
quence under Bruce. Given Bruce’s clear admonition that
“tribal enrollment,” and therefore a fortiori descendant status,
“is not dispositive of Indian status,” 394 F.3d at 1224-25, we
reject the dissent’s argument that mere descendant status with
the concomitant eligibility to receive benefits is effectively
sufficient to demonstrate “tribal recognition.” To do otherwise
would elevate tribal status to a “dispositive” determinant of

degree of Blackfeet Indian blood or more” in order to qualify for descen-
dant status as well. Id. § 2(d). Under this ordinance, Cruz would not
appear to qualify for any tribal status whatsoever. However, because the
Director of Tribal Enrollment testified that Cruz enjoys descendant status
— apparently despite the tribal regulations to the contrary — we treat him
as enjoying that status for purposes of our analysis. We note the incongru-
ity between his blood quotient and the tribal ordinance only to underscore
the error of the dissent’s placing near exclusive weight on Cruz’s descen-
dant status in concluding that Cruz is an Indian.
9
This concession reflects a sensible understanding of the law. If, for
example, a tribal authority declared that anyone with an ancestor who was
a member of the tribe, no matter how distant, counts as a “descendant,”
we would be hard pressed to consider such an individual subject to prose-
cution under § 1153, even though “tribal authorities [would clearly] recog-
nize [such a person] as an Indian” under our dissenting colleague’s
formulation. Dissenting Op. at 1615 (emphasis omitted).
1608 UNITED STATES v. CRUZ
Indian status, as Bruce explicitly forbids. Furthermore, given
the government’s explicit waiver of the argument, to hold as
the dissent suggests would violate our longstanding general
rule that we will not decide questions not raised by the parties
before us. See, e.g., Kimes v. Stone, 84 F.3d 1121, 1126 (9th
Cir. 1996); cf. United States v. Ziegler, 497 F.3d 890, 901 (9th
Cir. 2007) (Kozinski, J., dissenting from denial of rehearing
en banc) (“We apply [the waiver] rule with some vigor
against criminal defendants; we should be no less vigorous in
applying it against the government.” (internal citation omit-
ted)).

[4] Nor is there any evidence that Cruz satisfies the second
most important factor, “government recognition . . . through
receipt of assistance reserved only to Indians.” Bruce, 394
F.3d at 1224 (emphasis added). To the contrary, the only evi-
dence in the record demonstrates that the opposite is true:
Cruz testified that he had never “received . . . any benefits
from the Blackfeet Tribe,” and the government did not present
any evidence to the contrary.10 Nor did Cruz enjoy any bene-
fits of tribal affiliation, as required by Bruce’s third most
important factor. There is no evidence that he hunted or fished
on the reservation, nor has it been suggested that his employ-
ment with the BIA was related to or contingent upon his tribal
heritage.11 The only evidence supporting any of the Bruce fac-
tors is that, for less than a quarter of his short life, Cruz lived
10
While Cruz did attend school on the reservation for a period of time,
the school was open to non-Indians.
11
Employment with the BIA is open to non-Indians. While it is true that
the BIA is permitted to give preference to Indians when making hiring
decisions, see 25 U.S.C. §§ 472, 472a; Morton v. Mancari, 417 U.S. 535
(1974); 25 C.F.R. § 5.1, there is no indication in the trial record that Cruz
ever received any preferential treatment on the basis of his ancestry. In
fact, Cruz would not have been eligible for preferential treatment under
the Indian Preference Laws, as he is not a member of a recognized tribe
and has less than “one-half or more Indian blood of tribes indigenous to
the United States.” 25 C.F.R. § 5.1.
 UNITED STATES v. CRUZ 1609
on the Blackfeet Reservation.12 But even this only partially
supports the government’s position under the fourth Bruce
factor, which also requires a showing of “participation in
Indian social life.” Id. Testimony both from Cruz and from a
government witness indicated that Cruz does not practice
Indian religion, has never “in any way participated in Native
religious ceremonies,” does not participate in Indian cultural
festivals or dance competitions, has never voted in a Blackfeet
election, and does not carry a tribal identification card. The
government did not present any evidence suggesting that Cruz
participated in any way in Indian social life.

[5] In sum, the evidence in this case, when taken in the
light most favorable to the government, demonstrates that
Cruz satisfies at best only a small part of the least important
of the four Bruce factors. He does not satisfy any of the fac-
tors in full, and there is not even a scintilla of evidence sug-
gesting that he satisfies a single one of the three most
important factors. Were we to hold that evidence satisfying
merely a portion of the least important Bruce factor is, in
itself, sufficient to support a § 1153 conviction, we would be
ignoring Bruce’s mandate in various respects, including its
requirement that the factors be considered “in declining order
of importance.”13 Id. The first three factors could not realisti-
12
Although we base our analysis on the evidence in the record and not
on the Pre-Sentencing Report, we note that the Report indicates that Cruz
“returned to [the reservation] shortly before the instant offense.” The evi-
dence at trial was that he lived on the reservation for three to four years
during his childhood and then moved back shortly before the instant
offense.
13
The dissent would have us excise this portion of Bruce’s holding from
that opinion by dismissing it as “a stray comment.” Dissenting Op. at
1615. This is a curious suggestion from our colleague, who, at one point,
was the most vigorous proponent of the proposition that “an[y] issue ger-
mane to the eventual resolution of the case, [that has been] resolve[d] after
reasoned consideration in a published opinion [is] the law of the circuit.”
United States v. Johnson, 256 F.3d 895, 914 (9th Cir. 2001) (en banc)
(Kozinski, J., concurring) (emphasis added); see also Miller v. Gammie,
1610 UNITED STATES v. CRUZ
cally be deemed more important than the fourth if a partial
satisfaction of the fourth could outweigh the complete failure
to satisfy any of the first three.

The government does not dispute our assessment of the
record. Rather, in light of the near total lack of evidence that
could satisfy the Bruce test as it is written, it urges us to
expand Bruce by holding that mere “eligibility for . . . assis-
tance” reserved to Indians is sufficient under the second
Bruce factor.14 But this is not what Bruce says. Bruce says
that the second factor requires a showing of “receipt of assis-
tance reserved only to Indians.” Id. (emphasis added). We are
not empowered to ignore such clear language in our circuit’s
precedent, see Miller v. Gammie, 335 F.3d 889, 899 (9th Cir.
2003) (en banc), especially when construing a statute that
creates a “carefully limited intrusion of federal power into the
otherwise exclusive jurisdiction of the Indian tribes,” Bruce,
394 F.3d at 1220 (emphasis added) (quoting United States v.
Antelope, 430 U.S. 641, 642-43 n.1 (1977).

Even were we free to follow the government’s recom-

335 F.3d 889, 900-01 (9th Cir. 2003) (en banc) (Kozinski, J., concurring).
Here, the factors announced in Bruce and their relation to one another
were indisputably part of the reasoning employed by the court in reaching
its central holding. Accordingly, even under our dissenting colleague’s
more recent view on the due weight (or lack thereof) to be accorded to
dicta, the language in Bruce cannot be ignored as the dissent urges
because it is clearly not dicta. Cf. Espinosa v. United Student Aid Funds,
Inc., 545 F.3d 1113, 1119 n.3 (9th Cir. 2008) (Kozinski, J.) (“Anything [a
prior case] has to say as to matters not presented in that case is . . . dicta
and thus not binding on us.”). Unless and until some intervening higher
authority alters Bruce, we are bound by that decision. See Miller, 335 F.3d
at 899 (majority opinion).
14
As indicated above, the record demonstrates that descendants of
enrolled Blackfeet members are entitled to use Indian Health Services, are
eligible for certain scholarships, and are permitted to hunt and fish on the
reservation. The government does not dispute that Cruz never took advan-
tage of any of these benefits.
 UNITED STATES v. CRUZ 1611
mended course, we would not. The four factors that constitute
the second Bruce prong are designed to “probe[ ] whether the
Native American has a sufficient non-racial link to a formerly
sovereign people.” Bruce, 394 F.3d at 1224 (quoting St.
Cloud v. United States, 702 F. Supp. 1456, 1461 (D.S.D.
1988)). Bruce intentionally requires more than a simple blood
test to determine whether someone is legally deemed an
Indian. Given that many descendants of Indians are eligible
for tribal benefits based exclusively on their blood heritage,
the government’s argument would effectively render the sec-
ond Bruce factor a de facto nullity, and in most, if not all,
cases would transform the entire Bruce analysis into a
“blood” test. Cf. id. at 1223. For similar reasons, we cannot
accept our dissenting colleague’s argument that the sole test
under Bruce’s second prong “is whether the tribal authorities
recognize [someone] as an Indian, not whether he considers
himself one.” Dissenting op. at 1615 (second emphasis
added). Under Bruce, the extent to which an individual con-
siders himself an Indian — whether by deciding, for example,
to “reside[ ] on a reservation,” to “participat[e] in Indian
social life,” or to “recei[ve] assistance reserved only to Indi-
ans,” Bruce, 394 F.3d at 1224 — is most certainly relevant in
determining his Indian status. The dissent simply ignores the
fact that Bruce clearly requires an analysis from the perspec-
tive of both the tribe and the individual.

The government and our dissenting colleague also argue
that the fact that Cruz was prosecuted by the Blackfeet tribal
court demonstrates that he is an Indian because a “tribe has
no jurisdiction to punish anyone but an Indian.” Id. at 1227;
see Dissenting Op. at 1615. This argument is meritless for
multiple reasons. First and foremost, the record in this case is
incredibly thin with respect to Cruz’s contact with the tribal
justice system: all we know is that he has “been prosecuted.”
There is no evidence regarding the nature of that prosecution,
to what stage, if any, it proceeded, and certainly the record
does not indicate whether Cruz was ever determined for pur-
poses of that prosecution to be an Indian. Finally, the record
1612 UNITED STATES v. CRUZ
does not suggest that the prosecution resulted in a conviction.
Based on the evidence contained in the trial record, which is
all that we may consider, Cruz’s case may well have been dis-
missed for lack of jurisdiction after a finding that he is not an
Indian.15

[6] Furthermore, while the government makes much of the
fact that the court in Bruce considered the exercise of tribal
jurisdiction over the defendant throughout her entire lifetime
relevant, it fails to recognize the significantly different pos-
ture of that case. Bruce addressed a prosecution under § 1152.
However, under § 1152, the question of Indian status is an
affirmative defense. Id. at 1222-23 (citing United States v.
Hester, 719 F.2d 1041, 1043 (9th Cir. 1983)). Generally, “the
defendant must prove the elements of [an] affirmative defense
by a preponderance of the evidence,” unless some other stan-
dard is set by statute.16 United States v. Beasley, 346 F.3d 930,
15
Our dissenting colleague would equate the power to arrest with the
power to determine Indian status, thereby delegating to every tribal police
officer the determination of whether an individual may be prosecuted fed-
erally as an Indian. See Dissenting Op. at 1615 (“[T]ribal authorities rec-
ognize [Cruz] as an Indian . . . . That they do is confirmed by the fact that
. . . the tribal police took him before the tribal court rather than turning
him over to state or federal authorities. How that case was finally resolved
is irrelevant . . . .” (second emphasis added)). We reject the dissent’s
unusual approach: both the legitimate reach of federal authority under the
Constitution and the delicate question of whether an individual “counts”
as an Indian for purposes of a federal criminal prosecution that could lead
to his incarceration are issues too important to be decided on the basis of
a single arrest and in the absence of any true judicial consideration.
16
“[O]nce a defendant has satisfied his burden of production with
respect to an affirmative defense, the burden shifts to the government to
disprove the defense beyond a reasonable doubt.” Dominguez-Mestas, 929
F.2d at 1383. Of course, the beyond-a-reasonable-doubt standard “requires
more exacting proof” than the preponderance-of-the-evidence standard.
Jones v. United States, 527 U.S. 373, 377 (1999). Simply put, “more ‘facts
in evidence’ are needed . . . when the proponent is required to establish
[a claim] not merely by a preponderance of the evidence but . . . beyond
a reasonable doubt.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 253
(1986) (alteration and second omission in original) (quoting United States
v. Taylor, 464 F.2d 240, 242 (2d Cir. 1972).
 UNITED STATES v. CRUZ 1613
935 (9th Cir. 2003); see also United States v. Dominguez-
Mestas, 929 F.2d 1379, 1383 (9th Cir. 1991); cf. 18 U.S.C.
§ 17 (affirmative defense of insanity requires clear and con-
vincing evidence). By contrast, under § 1153 Indian status is
“an essential element of [the] offense which the government
must . . . prove beyond a reasonable doubt” in every case.
Bruce, 394 F.3d at 1229 (emphasis added). All that Bruce
held was that “[t]he assumption and exercise of a tribe’s crim-
inal jurisdiction . . . bolster[ed] the argument that Bruce met
her burden of producing sufficient evidence” for an affirma-
tive defense. Id. at 1227. The court explicitly “caution[ed] that
Bruce was only required to meet a production burden,” which
it later described as a “mere” burden of production. Id.
(emphasis added). The burden here, by contrast, is on the gov-
ernment to prove Cruz’s Indian status beyond a reasonable
doubt. In this context, a showing that a tribal court on one
occasion may have exercised jurisdiction over a defendant is
of little if any consequence in satisfying the status element in
a § 1153 prosecution.

[7] Because the evidence viewed in the light most favorable
to the government does not demonstrate that Cruz is an Indian
or that he meets any of the Bruce factors, no rational trier of
fact could have found that the government proved the statu-
tory element of § 1153 beyond a reasonable doubt. Accord-
ingly, the district court’s denial of the motion for judgment of
acquittal was error. Where the government has failed to show
that any of the Bruce factors has been satisfied, we have no
trouble concluding that the error was “clear” and “obvious.”
Olano, 507 U.S. at 734. As described earlier, a conviction that
erroneously rests on insufficient evidence necessarily impli-
cates “substantial rights” and seriously affects the “fairness”
and “integrity” of the judicial process. Accordingly, the denial
of Cruz’s motion for acquittal was not only error, but was
plain error. We reverse the decision below and instruct the
district court to grant the motion for judgment of acquittal.17
17
Because we reverse the district court’s denial of Cruz’s motion for
judgment of acquittal, we need not reach his claim that the district court
1614 UNITED STATES v. CRUZ
IV.

For the reasons stated above, the decision below is
REVERSED and the judgment of conviction VACATED. The dis-
trict court is instructed to grant the motion for judgment of
acquittal.

KOZINSKI, Chief Judge, dissenting:

Because defendant has the requisite amount of Indian
blood, the only question is whether he has “tribal or govern-
ment recognition as an Indian.” United States v. Bruce, 394
F.3d 1215, 1223 (9th Cir. 2005) (quoting United States v.
Broncheau, 597 F.2d 1260, 1263 (9th Cir. 1979) for the “gen-
erally accepted test,” derived from United States v. Rogers, 45
U.S. (4 How.) 567, 573 (1846)). He plainly does. The record
discloses that the Blackfeet tribal authorities have accorded
Cruz “descendant” status, which entitles him to many of the

improperly instructed the jury with respect to the relative weight the four
Bruce factors are to receive. However, since this question could well arise
in other prosecutions, we take this opportunity to explain that the district
court’s instruction in this case was erroneous because it failed to inform
the jury that the Bruce factors must be considered “in declining order of
importance,” as stated in Bruce. 394 F.3d at 1224; cf. supra note 13. When
a district court omits this crucial language, the jury receives no instruction
regarding the factors’ relative importance and may erroneously give the
various factors equal or disproportionate weight. A jury so instructed,
including Cruz’s jury, might place undue weight on, for example, the
fourth factor, which in this case was partially satisfied, and as a result may
mistakenly “convict without finding all the elements of a crime beyond a
reasonable doubt.” United States v. Rubio-Villareal, 967 F.2d 294, 297
(9th Cir. 1992). To avoid this problem, the words “in declining order of
importance” should, as a matter of course, always be included in a Bruce
instruction. Despite our dissenting colleague’s fervent protestation of out-
rage, see Dissenting op. at 1617-18, we are aware of nothing novel about
informing a jury what matters it should consider, and in what manner,
when determining whether an element of an offense has been met.
 UNITED STATES v. CRUZ 1615
benefits of tribal membership, including medical treatment at
any Indian Health Service facility in the United States, certain
educational grants, housing assistance and hunting and fishing
privileges on the reservation.

That Cruz may not have taken advantage of these benefits
doesn’t matter because the test is whether the tribal authori-
ties recognize him as an Indian, not whether he considers
himself one. That they do is confirmed by the fact that, when
he was charged with an earlier crime on the reservation, the
tribal police took him before the tribal court rather than turn-
ing him over to state or federal authorities. How that case was
finally resolved is irrelevant; what matters is that the tribal
authorities protected him from a state or federal prosecution
by treating him as one of their own. Finally, Cruz was living
on the reservation when he was arrested, another piece of evi-
dence supporting the jury’s verdict.

The majority manages to work its way around all of this
evidence by taking a stray comment in Bruce to the effect that
certain factors have been considered in “declining order of
importance” and turning it into a four-part balancing test. But
Bruce was not announcing a rule of law; it was merely report-
ing what it thought other courts had done: “[C]ourts have con-
sidered, in declining order of importance, evidence of [four
factors].” 394 F.3d at 1224. Bruce did not adopt this as any
sort of standard, nor did it have any cause to do so, as nothing
in Bruce turned on the relative weight of the factors. The
majority strains hard to make this part of Bruce’s holding, but
a fair reading of the opinion discloses that it’s not even dicta
because it’s descriptive rather than prescriptive. We recog-
nized this the last time we applied the test by omitting any ref-
erence to the declining order of importance. See United States
v. Ramirez, 537 F.3d 1075, 1082 (9th Cir. 2008).

Bruce borrowed the “declining order of importance” lan-
guage from United States v. Lawrence, 51 F.3d 150, 152 (8th
Cir. 1995), and Lawrence itself was quoting the observation
1616 UNITED STATES v. CRUZ
of a district judge in an earlier case, St. Cloud v. United
States, 702 F.Supp. 1456, 1461-62 (D.S.D. 1988). The district
judge in St. Cloud did not cite most of the cases he relied on,
so it’s hard to tell whether his observation is correct, but he
did offer a note of caution that my colleagues overlook:
“These factors do not establish a precise formula for deter-
mining who is an Indian. Rather, they merely guide the analy-
sis of whether a person is recognized as an Indian.” Id. at
1461.

This is the opposite of what my colleagues do today: They
turn the four factors into a rigid multi-part balancing test, with
the various prongs reinforcing or offsetting each other,
depending on how they are analyzed. This is not what the
judge in St. Cloud had in mind, and certainly nothing like
what Bruce adopted as the law of our circuit. It is an invention
of the majority in our case, designed to take power away from
juries and district judges and give it to appellate judges. Noth-
ing in the law, dating back to the Supreme Court’s opinion in
Rogers, justifies this fine mincing of the evidence. The ques-
tion we must answer is whether there is enough evidence from
which a rational jury could have concluded beyond a reason-
able doubt that Cruz was recognized as an Indian. Clearly
there was, and that’s the end of our task.

The majority misreads Bruce and misrepresents my posi-
tion: “Given Bruce’s clear admonition that ‘tribal enrollment,’
and therefore a fortiori descendant status, ‘is not dispositive
of Indian status,’ we reject the dissent’s argument that mere
descendant status with the concomitant eligibility to receive
benefits is effectively sufficient to demonstrate ‘tribal recog-
nition.’ ” Maj. op. at 1607 (quoting Bruce, 394 F.3d at
1224-25). Bruce certainly doesn’t hold that tribal enrollment
is insufficient to support a finding of Indian status. Bruce
holds the converse: that the absence of tribal enrollment does
not preclude finding that defendant is an Indian—which was
the question presented here. To suggest, as does the majority,
that an individual who is enrolled as a member of a tribe
 UNITED STATES v. CRUZ 1617
might not be an Indian after all is not only preposterous, it’s
unnecessary, as no one claims that Cruz was enrolled.

Nor do I maintain, as the majority makes believe, that
Cruz’s descendant status is enough to make him an Indian.
Whether or not it is, there are additional facts here: Cruz’s
residence on the reservation and the fact that he was previ-
ously arrested and brought before the tribal court. The latter
is a fact that the Bruce majority held to be highly significant.
Bruce did not consider the disposition of prior tribal court
cases relevant and we are not free to disregard the arrest and
prosecution by tribal authorities on this spurious basis.

Worse still, after huffing and puffing for 11 hefty para-
graphs and 12 chubby footnotes trying to explain why the dis-
trict court erred at all, the majority concludes in a single
opaque sentence that the error is “plain.” Just how plain can
this error be when the majority has to struggle so long and
hard to find any error at all? After complaining bitterly about
pointyheaded judges who “slic[e] ever finer and finer distinc-
tions whose practical consequences are seemingly minuscule,
if not microscopic,” maj. op. at 1602-03, my colleagues pull
out a scalpel of their own and proceed to engage in the same
exercise, so that “our standards of review continue to multi-
ply, the relationships between them growing more obscure
with each iteration.” Id. at 1603. Before reading today’s opin-
ion, no one could have guessed its outcome and methodology.
Saying that the error is plain eviscerates the “plain” part of the
plain error standard. If this is plain error, no error isn’t.

Not satisfied with merely reversing the verdict, the majority
goes a bridge too far by converting its novel four-part test into
a jury instruction. This is wholly unnecessary, as Cruz cannot
be tried again for violating 18 U.S.C. § 1153 because of dou-
ble jeopardy. It is also wrong. We don’t instruct juries as to
how to weigh the evidence; that is their function, not ours.
Yet the majority now requires jurors to assign relative weight
to various pieces of evidence presented to them. I am aware
1618 UNITED STATES v. CRUZ
of no such instruction anywhere else in our jurisprudence and
the majority points to none. It is a bold step into uncharted
territory and, in my judgment, an unwise one.

* * *

The majority engages in vigorous verbal callisthenics to
reach a wholly counter-intuitive—and wrong—result. Along
the way, it mucks up several already complex areas of the law
and does grave injury to our plain error standard of review. I
hasten to run in the other direction.