"The Eighth Circuit’s decision that Matthew Stymiest is an “Indian” under 18 U.S.C. 1153(a) raises possible constitutional questions about due process and vagueness of a criminal statute, and it may be ripe for review by the Supreme Court as a circuit split.

Federal courts have adopted common law “tests” to determine whether a person charged under the statute is an Indian — they have to be in order to be convicted. The Eighth Circuit’s test lists a series of factors for a jury to consider in determining whether the defendant is an Indian.

Stymiest is a descendant of Leech Lake Band members, but he does not have the blood quantum to be eligible for membership himself. He often held himself out to be an Indian when it was to his advantage, such as when he was seeking Indian health clinic services, or in earlier criminal debacles where he probably thought it was to his advantage. But the local IHS people often asked him to produce some ID, which of course he never could. So is he an Indian? Hmmm.

And the wild thing about all of this is that under the statute, a jury of non-Indians (likely) will decide on these facts whether or not defendants like Stymiest are Indians beyond a reasonable doubt. As a matter of law, it is improbable that a jury can make a finding of “Indianness” under such a standard."

Get the Story:
Who is an Indian under the Major Crimes Act? (Turtle Talk 9/23)

8th Circuit Decision:
US v. Stymiest (September 22, 2009)

9th Circuit Decision:
US v. Cruz (February 10, 2009)

Related Stories:
9th Circuit reverses conviction in Indian status case (02/11)