United States v. Violet Bruce

Violet Bruce appeals her conviction for simple assault on an Indian child less than 16 years of age on a reservation in violation of 18 U.S.C. §§ 1152 and 118(a)(5). In her sole claim of error, Bruce asserts that the case against her was brought under the wrong statute. The government charged Bruce under § 1152, which covers offenses committed in Indian country, but excepts crimes committed by an Indian against another Indian. Bruce contends that she is an Indian, and the government should have charged her under 18 U.S.C. § 1153 , which covers certain offenses committed by an Indian in Indian country. The district court denied her motion to dismiss on this ground. We conclude that Bruce presented sufficient evidence that, if believed, established her Indian status. We further hold that the court’s error was not harmless. We therefore reverse.

FACTS AND PROCEEDINGS

In March 2002, Bruce, a resident of the Fort Peck Indian Reservation in northeast Montana, choked her five-year-old son, Cy-lus, and in so doing, bruised his face and neck. On September 23, 2002, a grand jury indicted Bruce for assault on a child less than 16' years of age' on an Indian reservation, in violation of 18…

dissenting:

I part company because until now, no one has ever held that an adult may be an Indian (for purposes of legal status, not for purposes of ethnicity) when she is neither enrolled as a member of a tribe nor eligible for membership, nor entitled to tribal or government benefits to which only Indians are entitled; our law does not require us to allow Bruce to put her legal status as an Indian into play — and thus to shift the burden to the government to prove beyond a reasonable doubt that she is not an Indian — in the absence of any evidence that she is at least eligible for tribal membership or recognition; and it makes no sense to do so, for the majority’s contrary rule allows Bruce, on the same set of facts, to be both an Indian (who cannot be prosecuted under 18 U.S.C. § 1152 ) and not an Indian (who cannot be prosecuted under 18 U.S.C. § 1153 ).

The facts are undisputed. The evidence shows that:

There is no evidence:

I agree with the district court that, as a matter of law, this evidence does not permit a jury to find that Bruce has legal status as an Indian.

The Federal Enclave Act, 18 U.S.C. § 1152 , provides for the prosecution of crimes committed in Indian…

394 F.3d 1215 UNITED STATES of America, Plaintiff-Appellee, v. Violet BRUCE, Defendant-Appellant. No. 03-30171. United States Court of Appeals, Ninth Circuit. Argued and Submitted March 4, 2004. Filed January 13, 2005. COPYRIGHT MATERIAL OMITTED John Rhodes and Anthony R. Gallagher, Federal Public Defender's Office, Missoula, MT, Michael Donahoe, Federal Defenders of Montana, Helena, MT, for the defendant-appellant. Marcia Hurd, William W. Mercer and Klaus P. Richter, United States Attorney's Office, Billings, MT, for the plaintiff-appellee. Appeal from the United States District Court for the District of Montana, Sam E. Haddon, District Judge, Presiding. D.C. No. CR-02-00089-SEH. Before: O'SCANNLAIN, RYMER, and BYBEE, Circuit Judges. BYBEE, Circuit Judge. 1 Violet Bruce appeals her conviction for simple assault on an Indian child less than 16 years of age on a reservation in violation of 18 U.S.C. §§ 1152 and 113(a)(5). In her sole claim of error, Bruce asserts that the case against her was brought under the wrong statute. The government charged Bruce under § 1152, which covers offenses committed in Indian country, but excepts crimes committed by an Indian against…