UNITED STATES of America, Plaintiff-Appellee, v. Violet BRUCE, Defendant-Appellant, 394 F.3d 1215

BYBEE, Circuit Judge. 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 U.S.C. §§ 1152 and 113(a)(5).

The indictment stated, “That on or about March 25, 2002, at or near Wolf Point, in the State and District of Montana, and within the exteri- or boundaries of the Fort Peck Indian Reservation, being Indian country, the defendant, VIOLET BRUCE, did assault another, an Indian person who had not attained the age of 16 years ..., all -in violation of 18 U.S.C. §§ 1152 and 113(a)(5).” The indictment, thus, alleged that the victim was an Indian person, but said nothing about Bruce’s status. Bruce admitted that she choked Cylus but, on her attorney’s advice, she pled not guilty.

During the district court proceedings, Bruce repeatedly argued that she was Indian. Before trial, she moved to dismiss the indictment on the ground that it should have been brought under 18 U.S.C. § 1153, which applies to certain crimes by Indians, rather than § 1152, which excepts crimes by Indians against Indians. The court denied the motion. At trial, Bruce’s only defense was her claim of Indian status. At the close of the government’s case, Bruce again raised the argument in a motion for judgment of acquittal under Fed.R.Crim.P. 29, which the district court also denied.

At the close of all of the evidence, the court considered her Indian status defense at length.

Bruce introduced evidence that she is one-eighth Chippewa; that her mother is an enrolled member of the Turtle Mountain Tribe of Oklahoma; that she was born on an Indian Reservation; that she currently lives on the Fort Peck Indian Reservation; that two of her children are enrolled members of an Indian tribe; that she has been treated by Poplar Indian Health Services and the Spotted Bull Treatment Center; that whenever she was arrested it “had to have been [by] a tribal person”; and that she has been arrested by tribal authorities “all her life.” The district court concluded that, under § 1152, Bruce’s Indian status was an affirmative defense on which Bruce had the burden of production and that she had not borne this burden.

Accordingly, the court declined to submit the issue to the jury. A jury convicted Bruce of violating § 1152 and the district court sentenced her to three years’ probation. Following her conviction, Bruce unsuccessfully moved to arrest the judgment under Fed. R.Crim.P. 34 on the basis of her claimed Indian status. In support of her motion, Bruce introduced additional evidence showing that in 1991 she was treated as an Indian child by the Fort Peck Tribal Court, exercising jurisdiction pursuant to the Indian Child Welfare Act, 25 U.S.C. § 1901 (2004). After her motion was denied, Bruce took this appeal.

STANDARD OF REVIEW We review de novo the district court’s determination of Indian status under 18 U.S.C. § 1152 because it is a mixed question of law and fact. United States v. Eric B., 86 F.3d 869, 877 (9th Cir.1996); United States v. Keys, 103 F.3d 758, 761 (9th Cir.1996) (reviewing Indian status de novo). Mixed questions of law and fact are those in which “the historical facts are admitted or established, the rule of law is undisputed, and the issue is whether the facts satisfy the statutory standard.” Pullman-Standard v. Swint, 456 U.S. 273, 289 n. 19, 102 S.Ct. 1781, 72 L.Ed.2d 66 (1982). DISCUSSION A.

Federal Criminal Jurisdiction in Indian Country The exercise of criminal jurisdiction over Indians and Indian country is a “complex patchwork of federal, state, and tribal law,” which is better explained by history than by logic. Duro v. Reina, 495 U.S. 676, 680 n. 1, 110 S.Ct. 2053, 109 L.Ed.2d 693 (1990). The historical background of federal criminal jurisdiction in Indian country can be traced to colonial times, when Indian territory was entirely the province of the tribes and the tribes were understood to possess jurisdiction over all persons and subjects present on Indian lands. See WILLIAM C.

CANBY, JR., AMERICAN INDIAN LAW IN A NUTSHELL 133 (2004). This policy continued until shortly after the ratification of the Constitution, when Congress extended federal jurisdiction to non-Indians committing crimes against Indians in Indian territory. 1 Stat. 138 (1790); 1 Stat. 743 (1799); 2 Stat. 139 (1802). Congress further extended criminal jurisdiction in 1817 to cover crimes committed by Indians and non-Indians in Indian Country; notably, Congress excepted intra-Indian offenses, or crimes in which both the victim and perpetrator were Indian. 3 Stat. 383 (1817).

The 1817 Act served as the predecessor to 18 U.S.C. § 1152, which is sometimes called the Indian General Crimes Act (“IGCA”).

Section 1152 makes federal enclave criminal law — a concrete body of law governing areas within the sole and exclusive jurisdiction of the United States— generally applicable to crimes committed in “Indian country.” See 18 U.S.C. § 1151 (defining “Indian country”).

Section 1152 provides in full: Except as otherwise expressly provided by law, the general laws of the United States as to the punishment of offenses committed in any place within the sole and exclusive jurisdiction of the United States, except the District of Columbia, shall extend to the Indian country. This

section shall not extend to offenses committed by one Indian against the person or property of another Indian, nor to any Indian committing any offense in the Indian country who has been punished by the local law of the tribe, or to any case where, by treaty stipulations, the exclusive jurisdiction over such offenses is or may be secured to the Indian tribes respectively. In its original form, the IGCA ensured that federal criminal laws reached non-Indians committing crimes in Indian country, while at the same time preserving the right of the tribes to punish their own. See Oliphant v.

Suquamish Indian Tribe, 435 U.S. 191, 201, 98 S.Ct. 1011, 55 L.Ed.2d 209 (1978). The IGCA excepts from federal criminal jurisdiction three categories of offenses that might otherwise be thought to be within the jurisdiction of the tribes: “offenses committed by one Indian against the person or property of another Indian,” offenses committed by an Indian who has been punished by the tribe, and cases secured by treaty to the exclusive jurisdiction of a tribe. 18 U.S.C. § 1152. Although the “plain language” of § 1152 covers crimes in Indian country committed by non-Indians against non-Indians, Mull v.

United States, 402 F.2d 571, 573 (9th Cir.1968), the Supreme Court has held that states retain exclusive jurisdiction over general crimes committed by non-Indians against non-Indians in Indian country. Organized Vill. of Kake v. Egan, 369 U.S. 60, 68, 82 S.Ct. 562, 7 L.Ed.2d 573 (1962); New York ex rel. Ray v. Martin, 326 U.S. 496, 66 S.Ct. 307, 90 L.Ed. 261 (1946); Draper v. United States, 164 U.S. 240, 17 S.Ct. 107, 41 L.Ed. 419 (1896); United States v. McBratney, 104 U.S. 621, 26 L.Ed. 869 (1881).

Thus, under the IGCA, the criminal laws of the United States apply to offenses committed in Indian country by non-Indians against Indians and by Indians against non-Indians; “[section] 1152 establishes federal jurisdiction over interracial crimes only.” United States v. Prentiss, 256 F.3d 971, 974 (10th Cir.2001) (per curiam) (en banc). The exception in the IGCA preserves the right of tribal courts to try offenses committed in Indian country by Indians against Indians, while recognizing that Indian tribes generally do not have jurisdiction over non-Indians.

See Oliphant, 435 U.S. at 195-206 & n. 8, 98 S.Ct. 1011; see also 25 U.S.C. § 1302(2)(recognizing “the inherent. power of Indian tribes ... to exercise criminal jurisdiction over all Indians”). The Supreme Court has interpreted the exception as manifesting a broad congressional respect for tribal sovereignty in matters affecting only Indians. See United States v. Quiver, 241 U.S. 602, 36 S.Ct. 699, 60 L.Ed. 1196 (1916) (broadly interpreting the intra-Indian offense exception to extend to adultery involving an Indian participant).

Following the Supreme Court’s decision in Ex Parte Crow Dog, 109 U.S. 556, 3 S.Ct. 396, 27 L.Ed. 1030 (1883), which held that neither federal nor tribal courts had jurisdiction to try an Indian for the murder of another Indian on a reservation, Congress revisited this policy. Congressional displeasure with the Crow Dog decision led to the passage of a second statute, 18 U.S.C. § 1153, designed to establish as federal crimes, fourteen named offenses committed by Indians in Indian country. See United States v.

Broncheau, 597 F.2d 1260, 1265 (9th Cir.1979), cert. denied, 444 U.S. 859, 100 S.Ct. 123, 62 L.Ed.2d 80 (1979). As relevant for our purposes, § 1153 provides: Any Indian who commits against the person or property of another Indian or other person any of the following offenses, namely ... an assault against an individual who has not attained the age of 16 years ... shall be subject to the same law and penalties as all other persons committing any of the above offenses, within the exclusive jurisdiction of the United States. 18 U.S.C. § 1153(a) (2004).

Enacted in 1885, the Indian Major Crimes Act (“IMCA”) guaranteed that Indians committing major crimes against other Indians would be treated with the same rigor as non-Indian offenders. See Oliphant, 435 U.S. at 203 & n. 4, 98 S.Ct. 1011. The IMCA, the Court has recognized, is a “ ‘carefully limited intrusion of federal power into the otherwise exclusive jurisdiction of the Indian tribes to punish Indians for crimes committed on Indian land.’ ” United States v. Antelope, 430 U.S. 641, 642-43 n. 1, 97 S.Ct. 1395, 51 L.Ed.2d 701 (1977) (quoting Keeble v.

United States, 412 U.S. 205, 209, 93 S.Ct. 1993, 36 L.Ed.2d 844 (1973)). Assault against an individual who has not attained the age of 16 years is one of the enumerated crimes that the IMCA covers. We have recognized that the “limited intrusion” on Indian sovereignty in the IMCA is itself confined to federal enclave law. In United States v.

Begay, 42 F.3d 486, 498(9th Cir.1994), we rejected the claim “that Indians may not be charged for any criminal conduct beyond those crimes enumerated in [the Indian Major Crimes Act].” We concluded that the IMCA only concerns “the application of federal enclave law to Indians and has no bearing on federal laws of nationwide applicability that make actions criminal wherever committed.” Id. (citing United States v. Top Sky, 547 F.2d 483, 484(9th Cir.1976)).

Thus, we held that federal criminal laws of general, nationwide applicability- — such as the federal conspiracy statute, 18 U.S.C. § 371 — apply to Indians unless a treaty specifically exempts them. Id. at 499(citing United States v. Burns, 529 F.2d 114, 117 (9th Cir.1975)). Despite these intrusions, tribal courts retain jurisdiction to punish certain crimes occurring in Indian country. However, under the Indian Civil Rights Act, 25 U.S.C. § 1301 et al. (“ICRA”), tribal courts may not impose punishment greater than a year’s imprisonment or a $5,000 fine, or both. Id. § 1302(7).

Tribal courts may generally punish offenses committed by members of the tribe and may prosecute misdemeanors against Indians who are not members of that tribe. 25 U.S.C. § 1301(2); see also United States v.

Lara, 541 U.S. 193, 124 S.Ct. 1628, 1636, 1639, 158 L.Ed.2d 420 (2004) (rejecting a challenge to the ICRA Amendment and upholding the authority of Congress to “permit tribes, as an exercise of their inherent tribal authority, to prosecute non-member Indians,” but declining to reach the question of “whether the Constitution’s Due Process or Equal Protection Clauses prohibit tribes from prosecuting a non-member citizen of the United States.”).

Because the tribe’s jurisdiction stems from its inherent authority, rather than federal delegation, successive prosecution by a tribe and the federal government does not run afoul of the Double Jeopardy Clause, as the two are dual sovereigns. Id. at 1689. Nonetheless, Congress has statutorily forbidden a successive prosecution in federal court brought pursuant to § 1152 after the tribe has imposed punishment for the offense. 18 U.S.C. § 1152.

In addition to federal and tribal jurisdiction, there are statutes in which Congress has “unambiguously confer[red] jurisdiction on the State ovér major offenses committed by or against Indians on Indian reservations.” Negonsott v. Samuels, 507 U.S. 99, 110, 113 S.Ct. 1119, 122 L.Ed.2d 457 (1993) (construing The Kansas Act, 18 U.S.C. § 3243). Aside from statutory grants, the effect of the Supreme Court’s decision in McBratney, 104 U.S. at 624, is to recognize state jurisdiction for crimes committed by non-Indians against non-Indians on Indian territory.

We can summarize these rules concerning criminal jurisdiction in Indian country as follows: 1.Crimes in which both the perpetrator and victim are Indian are subject to (

a) federal jurisdiction under § 1153 if the crime charged is one of the fourteen enumerated crimes (and conviction may extend to lesser included offenses), or if the federal statute is one of general applicability; (

b) state jurisdiction where authorized by Congress; and (

c) tribal jurisdiction, perhaps running concurrent with either federal or state jurisdiction, although punishment is limited to no more than one year and $5,000. 2. Crimes in which the perpetrator, but not the victim, is Indian are subject to (

a) federal jurisdiction under § 1152(ex-cept where the tribe has already imposed punishment or the tribe has exclusive jurisdiction through treaty), or § 1153(if the crime is one of the fourteen enumerated crimes, with' conviction perhaps extending, to lesser included offenses), and pursuant to federal criminal laws of general applicability; (

b) state jurisdiction where authorized by Congress; and (

c) tribal jurisdiction,, perhaps running concurrently with either federal or state jurisdiction, although punishment is limited to no more than one year and $5,000. 3. Crimes in which the victim, but not the perpetrator, is Indian are subject to (

a) federal jurisdiction under § 1152, as well as pursuant to federal criminal laws of general applicability, and (

b) state jurisdiction where authorized by Congress. 4. Crimes in which both the perpetrator and victim are non-Indian are subject to state jurisdiction or federal criminal laws of general applicability. See United States v. Johnson, 637 F.2d 1224, 1231 n. 11 (9th Cir.1980); JULIE WREND & CLAY SMITH, AMERICAN INDIAN LAW DESKBOOK 99-100 (1998). We note that the complex scheme established by Congress creates obvious gaps in federal jurisdiction to punish crimes in Indian country.

For example, a non-Indian may be charged under § 1152 when the victim is an Indian; if his victim is a non-Indian, he generally must be charged under state law. An Indian may be charged with a host of federal crimes under § 1152 if his victim is a non-Indian, but generally only with major crimes under § 1153 if his victim is an Indian. See Antelope, 430 U.S. at 646-47, 97 S.Ct. 1395(rejecting an Equal Protection challenge to § 1153). The one point that emerges with clarity from this otherwise bewildering maze of rules is that the question of who is an Indian bears significant legal consequences.

Importantly, from a defendant’s perspective, unless state jurisdiction is specifically authorized by Congress, or he is charged pursuant to a generally applicable federal criminal statute, an Indian person charged with committing a crime against another Indian person that is not listed in § 1153 is subject only to the jurisdiction of the tribe; the offender may only be punished for up to one year or fined $5,000, or both. 25 U.S.C. § 1302(7). Once an Indian person is punished by a tribe for an offense covered by § 1152, federal courts may no longer impose any punishment for that offense.

Thus, Indian status carries certain benefits in the context of federal criminal adjudications. Indian status also bears significance independent of criminal jurisdiction. The host of federal statutes and service programs designed to benefit Indians are rife with status-based classifications used to designate the special position of a formerly sovereign people. See Antelope, 430 U.S. at 646, 97 S.Ct. 1395; FELIX COHEN, HANDBOOK OF FEDERAL INDIAN LAW 19(1982 ed.).

These include, to name a few, the Indian Civil Rights Act, 25 U.S.C. § 1301; the Indian Health Care Improvement Act, id. § 1601; the Indian Education Act, id. § 1001; the Indian Alcohol Substance Abuse Act, id. § 2403(3); and the Indian Child Welfare Act, id. § 1901. See Morton v. Mancari, 417 U.S. 535, 552, 94 S.Ct. 2474, 41 L.Ed.2d 290 (1974) (“Literally every piece of legislation dealing with Indian tribes and reservations ... single[s] out for special treatment a constituency of tribal Indians living on or near reservations.”).

Accordingly, some commentators have even gone so far as to characterize Indian status as a “property interest.” See GAIL K. SHEFFIELD, THE ARBITRARY INDIAN: THE INDIAN ARTS AND CRAFTS ACT OF 1990, at 138 (1997). Although the requirements may vary depending upon the purpose for which Indian status is claimed, courts cannot be ignorant of the collateral consequences their rulings might have in future proceedings.

It is against the backdrop of these formal and functional considerations that we must discern the precise relationship between §§ 1152 and 1153— the two bifurcated statutory remnants of a complicated jurisdictional history. B. Indian Status as a Defense to § 1152 Bruce contends that, because she and her victim are both Indians, her indictment should have been brought pursuant to § 1153, rather than § 1152. In order to resolve this contention, we must first determine what effect one’s claimed Indian status has in a prosecution brought pursuant to § 1152. In United States v.

Hester, 719 F.2d 1041(9th Cir.1983), we held that “the Government need not allege the non-Indian status of the defendant in an indictment under

section 1152, nor does it have the burden of going forward on that issue.” Id. at 1043. Rather, “[o]nee the defendant properly raises the issue of his Indian status, then the ultimate burden of proof remains ... upon the Government.” Id. (citing United States v. Guess, 629 F.2d 573, 577 n. 4 (9th Cir.1980)).

Section 1152 thus requires that Bruce not only raise her Indian status but also that she carry the burden of production for that issue; Indian status, after Hester, is in the nature of an affirmative defense. To satisfy her burden, Bruce must come forward with enough evidence of her Indian status to permit a fact-finder to decide the issue in her favor. No court has yet specified the quantum of evidence that must be offered in order to satisfy this production burden.

Nonetheless, once she meets this burden, the government retains the ultimate burden of persuasion — -or “the obligation to persuade the trier of fact of the truth of [the] proposition,” Dir., Office of Workers’ Comp. Programs, Dep’t of Labor v. Greenwich Collieries, 512 U.S. 267, 268, 114 S.Ct. 2251, 129 L.Ed.2d 221 (1994) — that the exception she claims is inapplicable. See Martin v.

Ohio, 480 U.S. 228, 237, 107 S.Ct. 1098, 94 L.Ed.2d 267 (1987) (Powell, J., dissenting) (noting that “when an affirmative defense does negate an element of the crime ... the state [must] prove the nonexistence of the defense beyond a reasonable doubt”) (emphasis in original) (citing In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970)); Patterson v.

New York, 432 U.S. 197, 207-09 & nn. 10-11, 97 S.Ct. 2319, 53 L.Ed.2d 281 (1977) (noting that “the trend over the years appears to have been to require the prosecution to disprove affirmative defenses beyond a reasonable doubt”); Guess, 629 F.2d at 577 n. 4 (explaining the general rule that “once a criminal defendant satisfies his burden of production with respect to an affirmative defense, the prosecution must prove the inapplicability of this defense beyond a reasonable doubt”).

Bruce argues that the district court erred by refusing to submit the issue of her Indian status to the jury because she presented enough evidence to meet her burden of production. The government responds that Bruce did not meet her burden, or alternately, that, assuming Bruce is Indian, the prosecution under § 1152 was harmless because her conduct was equally illegal under § 1153. C. Determining Who Is an “Indian” The term “Indian” is not statutorily defined, but courts have ■ “judicially explicated” its meaning. Broncheau, 597 E.2d at 1263.

The generally accepted test for Indian status considers “ ‘(1) the degree of Indian blood; and (2) tribal or government recognition as an Indian.’ ” United States v. Keys, 103 F.3d 758, 761 (9th Cir.1996) (quoting Broncheau, 597 F.2d at 1263); see also United States v. Rogers, 45 U.S. (4 How.) 567, 573, 11 L.Ed. 1105 (1846) (interpreting the meaning of “Indian” under the Trade and Intercourse Act of 1834, the precursor of the Major Crimes Act, not to apply to a white man who had been adopted into the Cherokee tribe). A person claiming Indian status must satisfy both prongs.

The first prong requires ancestry living in America before the Europeans arrived, but this fact is obviously rarely provable as such. See CANBY, supra, at 9. Because the general requirement is only of “some” blood, evidence of a parent, grandparent, or great-grandparent who is clearly identified as an Indian is generally sufficient to satisfy this prong. Id.; see also Vezina v. United States, 245 F. 411 (8th Cir.1917) (women 1/4 to 3/8 Chippewa Indian held to be Indian); Sully v. United States, 195 F. 113 (8th Cir.1912) (1/8 Indian blood held sufficient to be Indian); St. Cloud v.

United States, 702 F.Supp. 1456, 1460 (D.S.D.1988) (15/32 of Yankton Sioux blood sufficient to satisfy the first requirement of having a degree-of Indian blood); Goforth v. State, 644 P.2d 114, 116 (Okla-Crim.App.1982) (requirement of Indian blood satisfied by testimony that person was slightly less than one-quarter Cherokee Indian); Makah Indian Tribe v. Clallam County, 73 Wash.2d 677, 440 P.2d 442 (1968) (1/4 Makah blood sufficient to satisfy Indian blood requirement).

The second prong of the test — tribal or federal government recognition as an Indian — “probes whether the Native American has a sufficient non-racial link to a formerly sovereign people.” St. Cloud, 702 F.Supp. at 1461.

When analyzing this prong, courts have considered, in declining order of importance, evidence of the following: “1) tribal enrollment; 2) government recognition formally and informally through receipt of assistance reserved only to .Indians; 3) enjoyment of the benefits of tribal affiliation; and 4) social recognition as .an Indian through residence on a reservation and participation in Indian social life.” United States v. Lawrence, 51 F.3d 150, 152 (8th Cir.1995) (citing St. Cloud, 702 F.Supp. at 1461). Bruce presented evidence to establish both her Indian blood and recognition.

With respect to Indian blood, she offered evidence that she is. one-eighth Chippewa Indian and introduced a certificate of Indian blood confirming this fact. She also offered evidence that her mother is an enrolled .member of the Turtle Mountain Tribe of Oklahoma, and that two of Bruce’s children are enrolled members of an Indian tribe.

With respect to recognition, she presented evidence that she was born on an Indian reservation and currently lives on one; that she participates in Indian religious ceremonies; that she has, on several occasions, been treated at Indian hospitals; and that she was “arrested tribal” all her life. The district court, applying the two-part test for determining Indian status, concluded that Bruce had provided evidence to establish the first prong, her Indian blood. Her status, therefore, turned on whether a tribe or the federal government had recognized her as an Indian.

The district court cited the fact that she was not enrolled in a tribe and failed to present evidence that the federal government had recognized her to be an Indian. On the basis of this evidence, it found that Bruce had not met her burden on' this prong and concluded that she had not satisfied her burden of production as to the affirmative defense. We disagree.

Tribal enrollment is “the common evidentiary means of establishing Indian status, but it is not the only means nor is it necessarily determinative.” Broncheau, 597 F.2d at 1263; accord Antelope, 430 U.S. at 646 n. 7, 97 S.Ct. 1395 (“[E]n-rollment in an official tribe has not been held to be an absolute requirement for federal jurisdiction ....”) (citations omitted); Keys, 103 F.3d at 761 (‘While tribal enrollment is one means of establishing status as an ‘Indian’ under 18 U.S.C. § 1152, it is not the sole means of proving such status.”) (citation omitted); Ex parte Pero, 99 F.2d 28, 31 (7th Cir.1938) (“The lack of enrollment ... is not determinative of status.... [T]he refusal of the Department of Interior to enroll a certain Indian as a member of a certain tribe is not necessarily an administrative determination that the person is not an Indian.”); St.

Cloud, 702 F.Supp. at 1461 (“[A] person may still be an Indian though not enrolled with a recognized tribe.”). Nor have we required evidence of federal recognition. Rather, we have emphasized that there must be some evidence of government or tribal recognition. See Keys, 103 F.3d at 761(coneluding that where child was shown to have Indian blood and was treated by tribe as a member of the tribe, district court properly found that she was an Indian); accord Ex parte Pero, 99 F.2d at 31; Lewis v. State, 137 Idaho 882, 55 P.3d 875, 878 (Ct.App.2001).

This stems from the recognition that one of an Indian tribe’s most basic powers is the authority to determine questions of its own membership. See Santa Clara Pueblo v. Martinez, 436 U.S. 49, 72 n. 32, 98 S.Ct. 1670, 56 L.Ed.2d 106 (1978); United States v. Wheeler, 435 U.S. 313, 322 n. 18, 98 S.Ct. 1079, 55 L.Ed.2d 303 (1978); Cherokee Intermarriage Cases, 203 U.S. 76, 27 S.Ct. 29, 51 L.Ed. 96 (1906); Roff v. Burney, 168 U.S. 218, 18 S.Ct. 60, 42 L.Ed. 442 (1897).

Motivated in part by equal protection concerns, the dissent proposes a new test for determining Indian status; one that would conflate our two-pronged Rogers inquiry and multifaceted “recognition” guidelines into a single question: whether the individual is enrolled or eligible for enrollment in a federally recognized tribe. From a purely conceptual standpoint, we agree that eligibility for enrollment provides a simpler framework within which we might judge Indian status as a political affiliation with a formerly sovereign people.

Nonetheless, it is not the test that we have adopted, and until either Congress acts or the Supreme Court or an en banc panel of our court revises the “recognition” prong of the Rogers test, we are bound by our prior jurisprudence. In particular, we are bound by the body of case law which holds that enrollment, and, indeed, even eligibility therefor, is not dispositive of Indian status. Broncheau, 597 F.2d at 1263; Keys, 103 F.3d at 761. In sum, we are not permitted to hold that these cases do not mean what they say. Consequently, we find United States v. Keys, 103 F.3d 758, particularly instructive.

Keys, a non-Indian, was charged under § 1152 with assault of his daughter, who possessed one-fourth Indian blood. Keys argued that the government had failed to prove that his daughter, who was not enrolled, was an Indian (presumably on the theory that after McBratney, 104 U.S. at 624, assault committed by a non-Indian against a non-Indian victim could be charged under state law, but not under § 1152). The magistrate found that the tribal court had exercised jurisdiction over Keys’s daughter, and that she had been provided medical services by an Indian hospital.

The magistrate concluded “beyond a reasonable doubt” that, under such circumstances, she was a “de facto member” of the tribe. Id. at 760. Without considering whether she was eligible for enrollment, we concluded that her Indian status was “amply demonstrated.” Id. at 761. .... Because of the procedural posture of the case with which we are presented, we are not required to decide whether Bruce conclusively established that she was an Indian. Rather, we must merely determine whether she brought forward enough evidence of tribal recognition to permit her defense to be heard by the jury. We conclude that she did.

Bruce produced evidence that she had participated in sacred tribal rituals, including at least one sweat lodge ritual; that she was born on an Indian Reservation and continues to reside on one; that two of her children are enrolled members of an Indian tribe; and that she has been treated by Poplar Indian Health Services and the Spotted Bull Treatment Center. More significantly, her mother testified that whenever she was arrested it “had to have been [by] a tribal person” and that she has been arrested by tribal authorities “all her life.” The precise testimony was as follows: Q.

When Violet was young, did she have issues or problems with the tribal authorities? A. Not really. But she was arrested tribal all her life. Q. Well, that’s what I want to talk about. What does that mean that she was “arrested tribal”? A. She got out of hand and someone had to come and get her, arrest her. And it had to have been a tribal person. Q. And that would be drinking behavior and such? A. Yeah. Fighting with her sister. Q. Now, the tribal authorities would step in and take charge of the situation? A. Yes. Q. And did that involve dealing with the tribal authorities? A. Yes. Q.

And was Violet treated as an Indian person during those times? A. . Yes. Q. By the tribe? A: Yes. This testimony is significant because, as we have discussed, the tribe has no jurisdiction to punish anyone but an Indian. 25 U.S.C. § 1302(7); Oliphant, 435 U.S. at 191, 98 S.Ct. 1011. In sum, Bruce brought forward testimony to establish that she was “arrested tribal” her entire life and that whenever she had a brush with the law it had to be with tribal authorities.

Although not introduced as artfully by her counsel as it could have been, Bruce has put the question of tribal criminal jurisdiction on the table, and, in so doing, raised strong evidence of tribal recognition. The assumption and exercise of a tribe’s criminal jurisdiction, while not conclusive evidence of Indian status, significantly bolsters the argument that Bruce met her burden of producing sufficient evidence upon which a jury might rationally conclude that she was an Indian. We caution that Bruce was only required to meet a production burden.

When combined with the testimony as to her one-eighth Chippewa blood line, the cumulative effect of the additional evidence of tribal recognition does at least that. To decline to find sufficient evidence of Indian status on these facts is to shift the burden to the defense. Bruce’s burden is one of mere production. Accordingly, we hold that Bruce brought forward sufficient evidence that, if believed, would permit a jury rationally to conclude that Bruce was Indian. D.

Harmless Error Having determined that the court erred in declining to submit the issue of Bruce’s Indian status to the jury, we must now determine whether that error was harmless. See FED. R. CRIM. P. 52(a) (“Any error ... that does not affect substantial rights must be disregarded.”). The government argues that it makes no difference whether a jury could have concluded that Bruce was Indian because that would only mean that her conduct violated § 1153, rather than § 1152.

Effectively, the government argues that because her victim was an Indian, her crime must be chargeable under either § 1152 or § 1153, and Bruce’s Indian status is therefore irrelevant. Although the government’s argument finds some support in the cases examining this issue, we find these cases distinguishable and the argument unpersuasive. In Henry v. United States, 432 F.2d 114 (9th Cir.1970), modified, 434 F.2d 1283 (9th Cir.1971), we concluded that when an indictment charged a violation of § 1152 but the government actually prosecuted the case under § 1153, the error was harmless.

In Henry, the indictment listed § 1152 but alleged that the defendant was Indian. See Henry, 432 F.2d at 117-18. The court instructed the jury that the defendant’s Indian status was an element of the offense, and the jury found that the government had proven that the defendant was Indian beyond a reasonable doubt. See id. Although the indictment read § 1152, the defendant was in all other respects prosecuted under § 1153, and not § 1152. Thus, Henry dealt with little more than a scrivener’s error. In United States v.

Heath, 509 F.2d 16 (9th Cir.1974), we concluded that an indictment under § 1153, alleging that both the victim and the defendant were Indian, was sufficient to support a conviction under § 1152. The. facts in Heath were quite unusual. Heath had initially stipulated that she was an Indian (which would have subjected her to § 1153); however, on appeal she argued that, by act of Congress,the Klamath tribe was dissolved, and she was no longer entitled to claim Indian status at the time of her offense. See 25 U.S.C. § 564q (2004).

We agreed that she was no longer an Indian, but held that the error in the indictment was harmless beyond a reasonable doubt. Id. at 20. In reaching this conclusion, considerable emphasis was placed on Heath’s pre-trial stipulation that she was an Indian, id. at 20 n. 4, as well as the indictment’s proper reference to the victim’s Indian status, which, given the termination of Heath’s Indian status, was a. pre-requisite for her conviction under § 1152. Id. at 20.

Moreover, as Heath clearly implies, a denial of Indian status operates as a jurisdictional element under § 1153, which is generally resolved by a judge, rather than an. affirmative defense, which must be submitted to the jury after the defendant carries his production burden. Importantly, however, in neither Henry nor Heath y?as the question of Indian status contested at trial. While other circuits have reached the same conclusion under similar circumstances, only one case involved an objection timely filed. In United States v.

White Horse, 316 F.3d 769 (8th Cir.2003), the Eighth Circuit held that a charge brought under § 1152 rather than § 1153 was not plainly erroneous because “[b]e-tween them, the statutes apply to all defendants whatever their race or ethnicity.” Id. at 772-73; see also id. at 772 (noting that objection was not raised at trial). The Tenth Circuit in Prentiss, 256 F.3d 971, concluded that, although the Indian/non-Indian status of the victim and defendant are essential elements of § 1152 crimes which must be alleged in the indictment,. the failure of the indictment to allege those elements was harmless error.

See also id. at 983 (reasoning that .the indictment should be construed liberally because the defendant’s challenge was belated). In United States v.

John, 587 F.2d 683, 688 (5th Cir.1979), the Fifth Circuit, without commenting on the timeliness of the motion, concluded that an indictment’s erroneous reliance on § 1153, rather than § 1152, was harmless where the applicable federal enclave law was also referenced such that it was “clear that the indictment asserted jurisdiction under § 1152 as an unstated premise.”- Close examination demonstrates that none of these cases involves a timely challenge to a prosecution both instituted and actually conducted pursuant to the wrong statute.

Yet, their reasoning is alluring because Bruce — who does not dispute that she committed the underlying act of choking her child — is guilty under either § 1152 or § 1153; either she is an Indian or she is not. See White Horse, 316 F.3d at 773. Given all of the evidence offered at trial, the conclusion that the district court reached the “correct result” despite its error seems almost inescapable. See, e.g., United States v.

Rubenstein, 151 F.2d 915, 920 (2d Cir.1945) (Frank, J., dissenting) (famously characterizing this approach to harmless error review as follows: “If we, sitting on a reviewing court, believe, from merely reading the record, that a defendant is guilty, then we ... hold that an error ... even if it may seriously have prejudiced the jury against the defendant, is to be regarded as ‘harmless.’ ”). Nonetheless, this logic belies harmless error scrutiny. In reviewing nonconstitutional error on direct appeal under Rule 52(a), we adhere to the analysis first provided by the Supreme Court in Kotteakos v.

United States, 328 U.S. 750, 66 S.Ct. 1239, 90 L.Ed. 1557 (1946); see also Brecht v. Abrahamson, 507 U.S. 619, 637-38, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993) (reaffirming the Kotteakos standard); United States v. Brooke, 4 F.3d 1480, 1488 (9th Cir.1993) (stating that the standard for nonconstitutional error on direct review is governed by Kotteakos).

In rejecting the premise underlying the “correct result” approach — namely, that a defendant has not been harmed by error if he should have been convicted in any event — Kotteakos reaffirmed a touchstone principle of appellate review: “[I]t is not the appellate court’s function to determine guilt or innocence. Nor is it to speculate upon probable reconviction and decide according to how the speculation comes out.... Those judgments are exclusively for the jury.” Kotteakos, 328 U.S. at 763, 66 S.Ct. 1239 (citations omitted).

Instead, Kotteakos offered the following standard: If, when all is said and done, the conviction is sure that the error did not influence the jury, or had but very slight effect, the verdict and the judgment should stand.... But if one cannot say, with fair assurance, after pondering all that happened without stripping the erroneous action from the whole, that the judgment was not substantially swayed by the error, it is impossible to conclude that substantial rights were not affected. Id. at 764-65, 66 S.Ct. 1239.

The Court emphasized that whether “conviction would, or might probably, have resulted in properly conducted trial is not the criterion”; rather, we are merely to inquire whether “the error had substantial and injurious effect or influence in determining the jury’s verdict.” Id. at 776, 66 S.Ct. 1239 (emphasis added). Using this framework, it is clear that our answer to the question of what would have happened without the error should not be based on our own satisfaction with the verdict, or even whether the evidence was sufficient for the jury to have reached the same verdict absent the error.

The issue, rather, is what the jury actually would have done without the error. See WAYNE R. LAFAVE, JEROLD H. ISRAEL & NANCY J. KING, CRIMINAL PROCEDURE § 27.6(b) (2d ed.1999). It is against this backdrop that we judge the harm caused to Bruce by the trial court’s erroneous decision to prevent Bruce from reaching the jury on the question of her Indian status. We note that Congress has set forth, in §§ 1152 and 1153, two different mechanisms for asserting federal criminal jurisdiction.

We have previously concluded that the defendant’s Indian status is an essential element of a § 1153 offense which the government must allege in the indictment and prove beyond a reasonable doubt. See United States v. James, 980 F.2d 1314, 1317-19 (9th Cir.1992) (concluding that where the defendant challenges the indictment before trial, the failure to allege Indian status is fatal to an indictment under § 1153); Broncheau, 597 F.2d at 1262 (implying that the defendant’s Indian status is one of the “necessary elements” to be proven by the government in a § 1153 prosecution).

Our conclusion that Bruce met her burden of production under § 1152 implies a finding that the jury could rationally acquit on the basis that the government failed to disprove her claimed Indian status. This does not equate to a finding that the government has proven beyond a reasonable doubt that Bruce is Indian, as required by § 1153. By prosecuting Bruce under § 1152, rather than § 1153, the government did not have to prove that Bruce was an Indian. In so doing, the government released itself of its obligation to prove an element of the offense beyond a reasonable doubt.

The trial court’s error was, thus, not anymore harmless than a failure to prove that the victim was indeed a child under the age of 16. Absent proof of Bruce’s Indian status, there is no federal crime under § 1153. Moreover, were we to find harmless error in this case- — where the defendant has objected from the outset that she could not be charged under § 1152 — we would have merged the two statutes into one. We would be inviting the government to charge under either statute, calculating that one of the provisions is likely to apply. This is not without consequences.

Because § 1152 requires proof of fewer elements, the government would always have an incentive to indict under that section, thereby shifting the costs of producing evidence of Indian status to the defendant. Furthermore, as we have discussed, Bruce’s status as an Indian vel non has consequences for any future prosecutions, and may also have collateral consequences in future non-criminal hearings where Indian status is at issue. To offer a single example, prior tribal punishment, as noted previously, is an affirmative’ defense to a prosecution instituted pursuant to § 1152.

See 18 U.S.C. § 1152 (stating that “[t]his

section shall not extend to ... any Indian committing any offense in the Indian country who has been punished by the local law of the tribe ... ”). Were we to find harmless error in this case, it is not clear on what basis this affirmative defense could ever be raised in a prosecution brought against an Indian person under § 1152, so long as the crime could have been charged under § 1153. In sum, we simply cannot conclude, based upon the record, that the district court’s error did not have a prejudicial effect on the outcome of the proceeding. See Kotteakos, 328 U.S. at 776, 66 S.Ct. 1239.

We note, however, that this statutory framework creates an obvious and troubling conundrum. It is entirely probable that the government may be simultaneously unable either to prove or disprove a claim of Indian status, effectively foreclosing conviction under either statute. This is especially likely given that the burden of proof required for a defendant to place Indian status at issue in a § 1152 case may be as low as a preponderance, whereas the burden of proof required for the government to both disprove Indian status under § 1152 and to prove Indian status under § 1153 is proof beyond a reasonable doubt.

We are also aware of the additional expenditure of government resources required to reindict Bruce under a different provision and to retry her with the same evidence, but we decline to challenge the government’s charging decision. See Prentiss, 256 F.3d at 986 n. 14. Judicial correction of indictments that erroneously misrepresent a defendant’s Indian status presents the possibility of future adverse collateral consequences outside the criminal context, and improperly shifts the burden of proof otherwise applicable to the parties within the criminal arena.

In addition, where indictment is required, judicial correction of this sort serves to usurp the uniquely protective role of the grand jury. The Fifth Amendment vests the grand jury with responsibility for determining “whether there is probable cause to believe a crime has been committed and[for] ... protecting] ... citizens against unfounded criminal prosecutions.” United States v. Calandra, 414 U.S. 338, 343, 94 S.Ct. 613, 38 L.Ed.2d 561 (1974). The grand jury is part of the prosecutorial process, Butz v. Economou, 438 U.S. 478, 510, 98 S.Ct. 2894, 57 L.Ed.2d 895 (1978), and we may not direct its activities.

See United States v. Dionisio, 410 U.S. 1, 17, 93 S.Ct. 764, 35 L.Ed.2d 67 (1973). Accordingly, we may not presume to correct the decisions of the grand jury by altering the sections charged under the United States Code, except through our judgments, any more than we can, except through our judgments, correct the prosecutorial decisions of the executive. See United States v. Williams, 504 U.S. 36, 47-50, 112 S.Ct. 1735, 118 L.Ed.2d 352 (1992); United States v. Nixon, 418 U.S. 683, 693, 94 S.Ct. 3090, 41 L.Ed.2d 1039 (1974); Confiscation Cases, 74 U.S. (7 Wall.) 454, 457, 19 L.Ed. 196 (1868).

While we are not ignorant of the troublesome nature of our judgment, we remain bound by the language and structure of these two statutes. The federal crimes at issue here “are solely creatures of statute,” Staples v. United States, 511 U.S. 600, 604, 114 S.Ct. 1793, 128 L.Ed.2d 608 (1994). Subject to constitutional limitations not implicated here, Congress — not a federal appellate court — is authorized to define the elements of a federal criminal offense. Whalen v. United States, 445 U.S. 684, 689 & n. 3, 100 S.Ct. 1432, 63 L.Ed.2d 715 (1980).

It is likewise up to Congress to correct any awkwardness in the interrelation of the acts it promulgates. Accordingly, the judgment of the district court is REVERSED, and the case is REMANDED to the district court for proceedings consistent with this decision. . The scope of the statute was expanded significantly by the Supreme Court’s decision in Keeble, which held that an Indian charged pursuant to the IMCA was entitled to request and receive instructions as to lesser and included offenses if the evidence would permit the jury rationally to find him guilty of the lesser offense and acquit him of the greater.

Id. at 208-09; see also United States v. John, 587 F.2d 683 (5th Cir.1979) (upholding conviction on lesser and included offense); accord Felicia v. United States, 495 F.2d 353 (8th Cir.1974). . Offenses committed by Indians against multiple victims, including both Indians and others, would fall subject to competing, and perhaps concurrent, claims of federal, state and tribal jurisdiction, although presumably a federal court could not impose punishment for an offense covered by § 1152 after a tribal court had done so. .

Offenses Committed by non-Indians against multiple victims, including both Indians and others, would fall subject to competing, and perhaps concurrent, claims of federal and state court jurisdiction. . The Indian Civil Rights Act does not define "Indian" but begs the question by defining an Indian as "any person who would be subject to the jurisdiction of the United States as an Indian under

section 1153, title 18, [United States Code] if that person were to commit an offense listed in that

section in Indian country to which that

section applies.” 25 U.S.C. § 1301(4) (2004). . The presentence report, perhaps accepting her vouching uncritically, listed her race as "American Indian." . We note, in addition, that unenrolled Indians are eligible for a wide range of federal benefits directed to persons recognized by the Secretary of Interior as Indians without statutory reference to enrollment.

For example, The Native American Programs Act of 1974, creating the Administration for Native Americans, operates under regulations with a very broad definition of Indian: "any individual who claims to be an Indian and who is regarded as such by the Indian community in which he or she lives or by the Indian community of which he or she claims to be a part." 45 C.F.R. § 1336.1 (1989); see also Indian Health Care Improvement Act of 1976, 25 U.S.C. § 1603(c)(member of a tribe including those terminated and those recognized in the future; descendent in first or second degree of a member; and anyone "determined to be an Indian under regulations promulgated by the Secretary”); Indian Arts and Crafts Act of 1990, 18 U.S.C. § 1159(c)(1) (1994), 25 U.S.C. § 305e(d)(2) (1994) (defining “Indian” as "any individual who is a member of an Indian tribe; or for the purposes of this

section is certified as an Indian artisan by an Indian tribe”) (emphasis added); ROBERT N. CLINTON, ET AL., AMERICAN INDIAN LAW: CASES AND MATERIALS 84 (3d ed. 1991) ("Beginning with the Non-Intercourse Acts of the late 1700s and through enactment of the 1934 Indian Reorganization Act, federal law has treated 'Indians’ as a class without regard to proof of tribal enrollment”). . See also United States v. Dodge, 538 F.2d 770, 787 (8th Cir.1976) (concluding that defendant, Manuel M.

Alvarado, was an Indian for purposes of § 1153, based merely on evidence that he possessed one-fourth Yurok Indian blood and, at one time, he filed an application to be recognized as a member of the Yurok Tribe on the California State Judgment Rolls; the court stated; Alvarado possessed "Indian blood and [ ] held [himself] out to be [an] Indian[]”); St.

Cloud, 702 F.Supp. at 1460(concluding that because the defendant resided on a reservation, benefitted from tribal programs, and was socially recognized as an Indian, he met the Rogers test for Indian status, notwithstanding the fact that he was no longer enrolled or eligible for enrollment in any federally recognized tribe). . While we decline to rest our decision on information contained in the" presentence investigation report, we note that the report corroborates her mother's testimony by listing two adult convictions in the Fort Peck Tribal Court for disorderly conduct.

Additionally, a reply brief filed in support of her Rule 34 Motion to Arrest the Judgment charged that the government "failed [its obligations under Brady v. Maryland] to disclose during the discovery process that the defendant had been adjudicated in the Fort Peck Tribal Court as an Indian.” 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). Indeed, the record reflects that the government's case agent and BIA investigator was the Tribal Court judge who adjudicated Bruce as an Indian.

This very same investigator sat with counsel for the government during the entire trial, quietly watching Bruce attempt to bring forward evidence of her tribal recognition, without disclosing that the defendant had been twice treated as an Indian in an Indian Tribal Court. . Bruce also presented evidence in a post-trial motion for arrest of judgment brought pursuant to FED. R. C RIM. P. 34 that she was adjudicated as an Indian child by a tribal court exercising jurisdiction pursuant to the Indian Child Welfare Act, 25 U.S.C. § 1901 (2004).

Because we conclude that the evidence Bruce introduced at trial was sufficient to meet her burden of production, we need not decide whether the additional evidence that Bruce presented in her post-trial motions merits consideration. .

In addition, we note that harmless error analysis may find greater justification when the prosecution has already met the more difficult task of proving guilt beyond a reasonable doubt under § 1153, which requires proof of Indian status, rather than choosing to indict under § 1152, which effectively shifts the burden and cost of producing evidence of Indian status to the defendant. .

While the Fifth Amendment requires presentment or indictment by a grand jury in felony cases, assault on a child under the age of sixteen, the crime for which Bruce is charged, is a Class A misdemeanor punishable by cine year’s imprisonment and/or a $100,000 fine, and, thus, does not implicate this concern. We note, however, that of the remaining 13 crimes enumerated in § 1153, at least 10 require indictment by a grand jury unless waiver is obtained.

Where indictment is required, the concern for avoiding judicial usurpation by retroactively modifying indictments to conform to the evidence established at trial is directly implicated. In the present case, although Bruce did not have to be indicted by a grand jury, the government nonetheless opted to proceed by grand jury indictment. While the prosecution’s choice to indict — because it was merely optional — does not trigger our concern for safeguarding the protective role of the grand jury, it does demonstrate that the error in the indictment was easily correctable.

Once her Indian status was established, Bruce could have been recharged by Bill of Information, without undue burden on the prosecution.