dissenting.
I respectfully dissent. The government and the district court were aware that White Horse is an Indian from the time the indictment was filed against him. At the pre-trial Daubert hearing, the district court referred to White Horse as a Native American, U.S. v. White Horse, 177 F.Supp.2d 973, 974 (D.S.D.2001), and questioned the validity of the psychological methodology used to assess him because it had not been sufficiently tested with regard to Native American subjects. The presentence investigation report indicates that White Horse’s race is American Indian, that he was raised on the Pine Ridge Indian Reservation, and that he practices Lakota traditions. While we have no way of confirming whether the government made a mistake by citing § 1152 rather than § 1153 in the indictment, there does not appear to be any other explanation for its failure to adequately identify White Horse’s race. For these reasons, I cannot agree with the majority’s determination that the government filed a constitutionally sufficient indictment.
The majority holds that White Horse’s first claim fails in two ways: (1) if Indian status is an element of the offense, he loses under the plain-error analysis because the government’s error did not result in prejudice; and (2) if Indian status is an affirmative defense to § 1152, White *777Horse loses again because he failed to raise the defense at the trial court level. Yet, both parties were aware that White Horse is an American Indian at trial, and the court was on notice of White Horse’s race throughout all proceedings. The government does not have the liberty of ignoring the proper way of filing an indictment, particularly where there is sufficient evidence to show that it knew before trial that White Horse is an American Indian. Consequently, plain error analysis is an unsuitable means of reviewing the district court’s decision. I therefore believe that we have no other alternative than to vacate White Horse’s conviction and remand the matter for a new trial under the appropriate statute.2
. As an aside, little or no progress has been made by the United States Department of Interior, the Tribe, or any of the applicable federal or state agencies to reduce the incidence of sexual abuse on poverty-stricken Indian reservations. All interested agencies should consider alternative programs that will reduce the prevalence of this crime on South Dakota Indian reservations.