Who Is an Indian? History Creates a Legal Labyrinth and Defense Opportunities

Federal jurisdiction over Indian country crimes is statutorily circumscribed, including a requirement that either the defendant and/or the victim be an “Indian.” In years past, the government could easily establish the defendant’s status as an Indian by simply proving that the defendant was an enrolled member of a federally recognized Indian tribe. However, tribal membership is no longer the sole determinative factor. Who is an Indian? The issue is complex and controversial. For the practitioner, its fact intensity demands a close working relationship with the client and record development. For the courts, this remains a perplexing issue and at least one circuit conflict must be resolved.