Bird

MEMORANDUM **

Appellant Bird appeals from his conviction for burglary pursuant to 18 U.S.C. § 1153 and Montana Code Annotated § 45-6-204. He contends the Indian status of the victim is an essential element of a charge brought under section 1153, and therefore the district court erroneously denied his motion to dismiss his indictment for failure to allege this element.

However, the express language of section 1153(a) provides for federal jurisdiction where an Indian “commits against the person or property of another Indian or other person any of the following offenses, namely ... burglary.” 18 U.S.C. § 1153 (a) (emphasis added). Furthermore, we rejected Bird’s argument in denying his request to treat his interlocutory appeal as an application for a writ of mandamus. See United States v. Bird, 359 F.3d 1185, 1190 (9th Cir.2004) (“As conceded by [Bird] in [his] petition for rehearing and petition for rehearing en banc, in Henry v. United States, 432 F.2d 114 (9th *169 Cir.1970), we expressly held that an Indian can be prosecuted pursuant to § 1153 regardless of the race of the victim.”). We recently reaffirmed this aspect of Henry in United States v. Bruce, 394 F.3d 1215, 1221 (9th…