                 FOR PUBLICATION
 UNITED STATES COURT OF APPEALS
      FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,                  No. 03-30171
                Plaintiff-Appellee,
               v.                            D.C. No.
                                          CR-02-00089-SEH
VIOLET BRUCE,
                                             OPINION
             Defendant-Appellant.
                                      
       Appeal from the United States District Court
               for the District of Montana
        Sam E. Haddon, District Judge, Presiding

                 Argued and Submitted
           March 4, 2004—Seattle, Washington

                  Filed January 13, 2005

 Before: Diarmuid F. O’Scannlain, Pamela Ann Rymer, and
              Jay S. Bybee, Circuit Judges.

                 Opinion by Judge Bybee;
                 Dissent by Judge Rymer




                            513
516                UNITED STATES v. BRUCE


                        COUNSEL

John Rhodes and Anthony R. Gallagher, Federal Public
Defender’s Office, Missoula, Montana, Michael Donahoe,
Federal Defenders of Montana, Helena, Montana, for the
defendant-appellant.

Marcia Hurd, William W. Mercer and Klaus P. Richter,
United States Attorney’s Office, Billings, Montana, for the
plaintiff-appellee.


                         OPINION

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 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
                    UNITED STATES v. BRUCE                  517
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 dis-
miss on this ground. We conclude that Bruce presented suffi-
cient 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, Cylus, 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 indict-
ment stated, “That on or about March 25, 2002, at or near
Wolf Point, in the State and District of Montana, and within
the exterior 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 proceed-
ings, 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 sta-
tus. At the close of the government’s case, Bruce again raised
518                 UNITED STATES v. BRUCE
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 mem-
ber 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 Treat-
ment 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 judg-
ment 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,
                    UNITED STATES v. BRUCE                  519
and the issue is whether the facts satisfy the statutory stan-
dard.” Pullman-Standard v. Swint, 456 U.S. 273, 289 n.19
(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 (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 under-
stood to possess jurisdiction over all persons and subjects
present on Indian lands. See WILLIAM C. CANBY, JR., AMERI-
CAN INDIAN LAW IN A NUTSHELL 133 (2004). This policy con-
tinued 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 pro-
vides in full:

        Except as otherwise expressly provided by law,
     the general laws of the United States as to the pun-
520                  UNITED STATES v. BRUCE
      ishment 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 commit-
      ted 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 coun-
try, 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 (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 jurisdic-
tion of a tribe. 18 U.S.C. § 1152. Although the “plain lan-
guage” 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 (1962); New York ex rel. Ray v. Martin, 326 U.S. 496
(1946); Draper v. United States, 164 U.S. 240 (1896); United
States v. McBratney, 104 U.S. 621 (1881). Thus, under the
IGCA, the criminal laws of the United States apply to
offenses committed in Indian country by non-Indians against
                    UNITED STATES v. BRUCE                    521
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; see also 25 U.S.C. § 1302(2) (recog-
nizing “the inherent power of Indian tribes . . . to exercise
criminal jurisdiction over all Indians”). The Supreme Court
has interpreted the exception as manifesting a broad congres-
sional respect for tribal sovereignty in matters affecting only
Indians. See United States v. Quiver, 241 U.S. 602 (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 (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 pol-
icy. 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 (1979). As relevant for our pur-
poses, § 1153 provides:

    Any Indian who commits against the person or prop-
    erty of another Indian or other person any of the fol-
    lowing 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.
522                    UNITED STATES v. BRUCE
18 U.S.C. § 1153(a) (2004). Enacted in 1885, the Indian
Major Crimes Act (“IMCA”) guaranteed that Indians commit-
ting 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. The IMCA, the Court has recognized, is
a “ ‘carefully limited intrusion of federal power into the other-
wise exclusive jurisdiction of the Indian tribes to punish Indi-
ans for crimes committed on Indian land.’ ” United States v.
Antelope, 430 U.S. 641, 642-43 n.1 (1977) (quoting Keeble v.
United States, 412 U.S. 200, 209 (1973)).1 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 Indi-
ans and has no bearing on federal laws of nationwide applica-
bility 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 stat-
ute, 18 U.S.C. § 371—apply to Indians unless a treaty specifi-
cally exempts them. Id. at 499 (citing United States v. Burns,
529 F.2d 114, 117 (9th Cir. 1975)).
  1
   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) (uphold-
ing conviction on lesser and included offense); accord Felicia v. United
States, 495 F.2d 353 (8th Cir. 1974).
                    UNITED STATES v. BRUCE                     523
   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 com-
mitted by members of the tribe and may prosecute misdemea-
nors against Indians who are not members of that tribe. 25
U.S.C. § 1301(2); see also United States v. Lara, 124 S.Ct.
1628, 1636, 1639 (2004) (rejecting a challenge to the ICRA
Amendment and upholding the authority of Congress to “per-
mit tribes, as an exercise of their inherent tribal authority, to
prosecute nonmember 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 fed-
eral delegation, successive prosecution by a tribe and the fed-
eral government does not run afoul of the Double Jeopardy
Clause, as the two are dual sovereigns. Id. at 1639. Nonethe-
less, Congress has statutorily forbidden a successive prosecu-
tion 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 stat-
utes in which Congress has “unambiguously confer[red] juris-
diction on the State over major offenses committed by or
against Indians on Indian reservations.” Negonsott v. Samuels,
507 U.S. 99, 110 (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 juris-
diction in Indian country as follows:

    1. Crimes in which both the perpetrator and victim
    are Indian are subject to (a) federal jurisdiction under
524                    UNITED STATES v. BRUCE
      § 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 juris-
      diction, perhaps running concurrent with either fed-
      eral 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 vic-
      tim, is Indian are subject to (a) federal jurisdiction
      under § 1152 (except where the tribe has already
      imposed punishment or the tribe has exclusive juris-
      diction 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 applica-
      bility; (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 $5,000.2

      3. Crimes in which the victim, but not the perpetra-
      tor, is Indian are subject to (a) federal jurisdiction
      under § 1152, as well as pursuant to federal criminal
      laws of general applicability, and (b) state jurisdic-
      tion where authorized by Congress.

      4.   Crimes in which both the perpetrator and victim
  2
   Offenses committed by Indians against multiple victims, including
both Indians and others, would fall subject to competing, and perhaps con-
current, claims of federal, state and tribal jurisdiction, although presum-
ably a federal court could not impose punishment for an offense covered
by § 1152 after a tribal court had done so.
                       UNITED STATES v. BRUCE                        525
      are non-Indian are subject to state jurisdiction or fed-
      eral criminal laws of general applicability.3

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 (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 specifi-
cally 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 per-
son that is not listed in § 1153 is subject only to the jurisdic-
tion 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 punish-
ment for that offense. Thus, Indian status carries certain bene-
fits in the context of federal criminal adjudications.

  Indian status also bears significance independent of crimi-
  3
   Offenses committed by non-Indians against multiple victims, including
both Indians and others, would fall subject to competing, and perhaps con-
current, claims of federal and state court jurisdiction.
526                  UNITED STATES v. BRUCE
nal jurisdiction. The host of federal statutes and service pro-
grams designed to benefit Indians are rife with status-based
classifications used to designate the special position of a for-
merly sovereign people. See Antelope, 430 U.S. at 646; 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 Alco-
hol Substance Abuse Act, id. § 2403(3); and the Indian Child
Welfare Act, id. § 1901. See Morton v. Mancari, 417 U.S.
535, 552 (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 pur-
pose 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 sta-
tus has in a prosecution brought pursuant to § 1152.

  [1] 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
                    UNITED STATES v. BRUCE                   527
issue.” Id. at 1043. Rather, “[o]nce 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)). Sec-
tion 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 affir-
mative defense. To satisfy her burden, Bruce must come for-
ward 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 (1994)—that the exception she claims is
inapplicable. See Martin v. Ohio, 480 U.S. 228, 237 (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 rea-
sonable doubt”) (emphasis in original) (citing In re Winship,
397 U.S. 358 (1970)); Patterson v. New York, 432 U.S. 197,
207-09 & nn. 10-11 (1977) (noting that “the trend over the
years appears to have been to require the prosecution to dis-
prove 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 sub-
mit the issue of her Indian status to the jury because she pre-
sented 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
528                     UNITED STATES v. BRUCE
under § 1152 was harmless because her conduct was equally
illegal under § 1153.

C.    Determining Who Is an “Indian”

   [2] The term “Indian” is not statutorily defined, but courts
have “judicially explicated” its meaning. Broncheau, 597 F.2d
at 1263. The generally accepted test for Indian status consid-
ers “ ‘(1) the degree of Indian blood; and (2) tribal or govern-
ment 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 (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).4 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 Chip-
pewa 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
  4
    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).
                      UNITED STATES v. BRUCE                        529
person was slightly less than one-quarter Cherokee Indian);
Makah Indian Tribe v. Clallam County, 440 P.2d 442 (Wash.
1968) (1/4 Makah blood sufficient to satisfy Indian blood
requirement).

   [3] The second prong of the test—tribal or federal govern-
ment recognition as an Indian—“probes whether the Native
American has a sufficient non-racial link to a formerly sover-
eign people.” St. Cloud, 702 F. Supp. at 1461. When analyz-
ing 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 evi-
dence 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.5 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 determin-
ing Indian status, concluded that Bruce had provided evidence
to establish the first prong, her Indian blood. Her status, there-
fore, turned on whether a tribe or the federal government had
  5
    The presentence report, perhaps accepting her vouching uncritically,
listed her race as “American Indian.”
530                 UNITED STATES v. BRUCE
recognized her as an Indian. The district court cited the fact
that she was not enrolled in a tribe and failed to present evi-
dence 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.

   [4] We disagree. Tribal enrollment is “the common eviden-
tiary 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
(“[E]nrollment 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 sta-
tus.”) (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 recogni-
tion. Rather, we have emphasized that there must be some
evidence of government or tribal recognition. See Keys, 103
F.3d at 761 (concluding 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, 55 P.3d
875, 878 (Idaho Ct. App. 2001). This stems from the recogni-
tion 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 (1978);
United States v. Wheeler, 435 U.S. 313, 322 n.18 (1978);
Cherokee Intermarriage Cases, 203 U.S. 76 (1906); Roff v.
Burney, 168 U.S. 218 (1897).
                       UNITED STATES v. BRUCE                         531
   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 multi-
faceted “recognition” guidelines into a single question:
whether the individual is enrolled or eligible for enrollment in
a federally recognized tribe. From a purely conceptual stand-
point, we agree that eligibility for enrollment provides a sim-
pler framework within which we might judge Indian status as
a political affiliation with a formerly sovereign people. None-
theless, 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.6
   6
     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 exam-
ple, The Native American Programs Act of 1974, creating the Administra-
tion 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 pro-
mulgated 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 “In-
dian” 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”).
532                    UNITED STATES v. BRUCE
   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 761.7

  [5] 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 per-
mit her defense to be heard by the jury. We conclude that she
did.

  [6] Bruce produced evidence that she had participated in
sacred tribal rituals, including at least one sweat lodge ritual;
   7
     See also United States v. Dodge, 538 F.2d 770, 787 (8th Cir. 1976)
(concluding that defendant, Manuel M. Alvarado, was an Indian for pur-
poses of § 1153, based merely on evidence that he possessed one-fourth
Yurok Indian blood and, at one time, he filed an application to be recog-
nized 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 (con-
cluding 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 lon-
ger enrolled or eligible for enrollment in any federally recognized tribe).
                    UNITED STATES v. BRUCE                  533
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 Cen-
ter. 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?
534                    UNITED STATES v. BRUCE
      A.   Yes.

      Q.   By the tribe?

      A.   Yes.8

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.

   [7] 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 authori-
ties. 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 evi-
dence 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 produc-
tion burden. When combined with the testimony as to her
one-eighth Chippewa blood line, the cumulative effect of the
  8
    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 (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 investi-
gator sat with counsel for the government during the entire trial, quietly
watching Bruce attempt to bring forward evidence of her tribal recogni-
tion, without disclosing that the defendant had been twice treated as an
Indian in an Indian Tribal Court.
                       UNITED STATES v. BRUCE                         535
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.

   [8] Accordingly, we hold that Bruce brought forward suffi-
cient evidence that, if believed, would permit a jury rationally
to conclude that Bruce was Indian.9

D.    Harmless Error

   [9] 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 con-
duct violated § 1153, rather than § 1152. Effectively, the gov-
ernment 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 exam-
ining 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 gov-
ernment actually prosecuted the case under § 1153, the error
was harmless. In Henry, the indictment listed § 1152 but
  9
   Bruce also presented evidence in a post-trial motion for arrest of judg-
ment brought pursuant to FED. R. CRIM. 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 bur-
den of production, we need not decide whether the additional evidence
that Bruce presented in her post-trial motions merits consideration.
536                     UNITED STATES v. BRUCE
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 reason-
able 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 termi-
nation 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.10
Importantly, however, in neither Henry nor Heath was the
question of Indian status contested at trial.
  10
     In addition, we note that harmless error analysis may find greater jus-
tification 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 sta-
tus to the defendant.
                     UNITED STATES v. BRUCE                    537
   While other circuits have reached the same conclusion
under similar circumstances, only one case involved an objec-
tion 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 erro-
neous because “[b]etween 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 defen-
dant 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 dis-
pute 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 dis-
trict 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 fol-
lows: “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 preju-
538                  UNITED STATES v. BRUCE
diced 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 (1946); see
also Brecht v. Abramson, 507 U.S. 619, 637-38 (1993) (reaf-
firming 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 Kot-
teakos). 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 recon-
viction and decide according to how the speculation comes
out. . . . Those judgments are exclusively for the jury.” Kot-
teakos, 328 U.S. at 763 (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. The Court emphasized that whether “conviction
would, or might probably, have resulted in properly con-
ducted 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
(emphasis added).
                    UNITED STATES v. BRUCE                  539
   [10] 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.

   [11] 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 defen-
dant’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 gov-
ernment 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.
540                 UNITED STATES v. BRUCE
   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 govern-
ment to charge under either statute, calculating that one of the
provisions is likely to apply. This is not without conse-
quences. 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 evi-
dence of Indian status to the defendant.

   [12] Furthermore, as we have discussed, Bruce’s status as
an Indian vel non has consequences for any future prosecu-
tions, 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 per-
son 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.

   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 pre-
ponderance, whereas the burden of proof required for the gov-
ernment to both disprove Indian status under § 1152 and to
                        UNITED STATES v. BRUCE                           541
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 dif-
ferent 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 collat-
eral consequences outside the criminal context, and improp-
erly shifts the burden of proof otherwise applicable to the
parties within the criminal arena.

   In addition, where indictment is required, judicial correc-
tion of this sort serves to usurp the uniquely protective role of
the grand jury.11 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] . . .
protect[ing] . . . citizens against unfounded criminal prosecu-
tions.” United States v. Calandra, 414 U.S. 338, 343 (1974).
The grand jury is part of the prosecutorial process, Butz v.
Economou, 438 U.S. 478, 510 (1978), and we may not direct
its activities. See United States v. Dionisio, 410 U.S. 1, 17
  11
    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 one 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 protec-
tive role of the grand jury, it does demonstrate that the error in the indict-
ment was easily correctable. Once her Indian status was established, Bruce
could have been recharged by Bill of Information, without undue burden
on the prosecution.
542                 UNITED STATES v. BRUCE
(1973). Accordingly, we may not presume to correct the deci-
sions 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 (1992); United States v. Nixon,
418 U.S. 683, 693 (1974); Confiscation Cases, 74 U.S. (7
Wall.) 454, 457 (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 (1994). Subject to constitutional limitations not impli-
cated here, Congress—not a federal appellate court—is autho-
rized to define the elements of a federal criminal offense.
Whalen v. United States, 445 U.S. 684, 689 & n.3 (1980). It
is likewise up to Congress to correct any awkwardness in the
interrelation of the acts it promulgates.

  [13] Accordingly, the judgment of the district court is
REVERSED, and the case is REMANDED to the district
court for proceedings consistent with this decision.



RYMER, Circuit Judge, 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 mem-
ber of a tribe nor eligible for membership, nor entitled to
tribal or government benefits to which only Indians are enti-
tled; our law does not require us to allow Bruce to put her
legal status as an Indian into play — and thus to shift the bur-
den 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 recogni-
                       UNITED STATES v. BRUCE                         543
tion; and it makes no sense to do so, for the majority’s con-
trary 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:

      •   Bruce’s mother, who is enrolled in the Turtle
          Mountain Tribe, is Indian

      •   Bruce is one-eighth Chippewa

      •   Bruce currently lives on the reservation of the
          Fort Peck Tribe

      •   Bruce associates with Indian persons

      •   Bruce has three children, two of whom are Indian
          and are enrolled in a tribe

      •   Bruce engaged in one sweat lodge (a ceremony
          that has religious significance)

      •   Bruce was “arrested tribal all her life”1
  1
    This is the only evidence in the record about Bruce’s involvement with
tribal authorities. Bruce (quite properly) does not rely on anything else.
While the majority disclaims reliance on two arrests reported in the Pre-
sentence Investigation Report, it nevertheless uses these incidents (both
for disorderly conduct for which the disposition was “forfeit bail”) and an
argument made in a reply brief to bolster its position. Of course, neither
was in evidence before the district court when it found that Bruce had not
met her burden of production on the affirmative defense of her Indian sta-
tus, and should not be considered for any purpose on appeal. Even so,
these offenses show nothing pertinent because, for all we know, they are
not even Bruce’s and we have no way of knowing whether tribal jurisdic-
tion was contested or conceded.
544                   UNITED STATES v. BRUCE
There is no evidence:

      •   that Bruce is an enrolled member of any tribe

      •   that Bruce is recognized as a tribe member by
          any tribe or the federal government

      •   that Bruce enjoys any benefits of tribal affiliation

      •   that Bruce is eligible for tribal membership

      •   that Bruce has voted in tribal elections, that she
          has held tribal office, that she has served on tribal
          juries, that she has received payments or allot-
          ments made only to Indians, or that she is
          employed by a tribal organization.

I agree with the district court that, as a matter of law, this evi-
dence 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 country by
non-Indians against Indians, but its coverage does not extend
to offenses committed by one Indian against the person or
property of another Indian; § 1153, in turn, provides that an
Indian who commits certain major crimes against the person
or property of another Indian may be prosecuted under the
general laws of the United States. Neither section defines “In-
dian.” However, courts generally follow the Rogers test,2
which 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). We have held that
the defendant’s legal status as a non-Indian is not an element
or an essential jurisdictional fact that must be charged in an
indictment under § 1152. United States v. Hester, 719 F.2d
  2
   United States v. Rogers, 45 U.S. 567 (1846).
                        UNITED STATES v. BRUCE                           545
1041, 1043 (9th Cir. 1983). Rather, as we explained in adopt-
ing the burden-shifting framework that controls § 1152 prose-
cutions and this case,

      [i]t is far more manageable for the defendant to
      shoulder the burden of producing evidence that he is
      a member of a federally recognized tribe than it is
      for the Government to produce evidence that he is
      not a member of any one of the hundreds of such
      tribes. We accordingly hold that the Government
      need not allege the non-Indian status of the defen-
      dant in an indictment under section 1152, nor does
      it have the burden of going forward on that issue.
      Once the defendant properly raises the issue of his
      Indian status, then the ultimate burden of proof
      remains, of course, upon the Government.

Id. at 1043 (emphasis added).

   While we have stated in different contexts that enrollment
is not the exclusive way to show that one is Indian,3 we have
  3
   See Keys, 103 F.3d at 761 (stating that lack of enrollment of two-year
old who had been treated as member of the tribe by the tribe and her par-
ents does not control determination of her Indian status); United States v.
Broncheau, 597 F.2d 1260, 1263 (9th Cir. 1979) (upholding § 1153 indict-
ment that charged defendant as an Indian against challenge that it was
deficient for failing also to charge that he was enrolled as enrollment is not
an “absolute requirement,” nor necessarily determinative, when the indict-
ment adequately put the defendant on notice of his classification as an
Indian); Robert N. Clinton, Criminal Jurisdiction Over Indian Lands: A
Journey Through a Jurisdictional Maze, 18 Ariz. L. Rev. 503, 516 (1976).
The Eighth Circuit, which considers the determination of Indian or non-
Indian status a conclusion of law, has broken the test into four factors
which are, in declining order of importance: “1) tribal enrollment; 2) gov-
ernment 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); see also United States v. Torres, 733 F.2d 449,
456 (7th Cir. 1984) (approving consideration of whether a person is recog-
nized as an Indian by an Indian tribe, or by the federal government, and
whether a person resides on an Indian reservation and holds himself out
as an Indian).
546                      UNITED STATES v. BRUCE
recognized that tribal membership is the common thread and
evidentiary means of establishing Indian status. See Bron-
cheau, 597 F.2d at 1263 (observing this, and noting that the
defendant admitted he was enrolled and never suggested he
did not understand the term “Indian” as it applied to him). So
far as I can tell, no court has ever held that an adult could
have Indian legal status who was neither enrolled or eligible
for enrollment, nor entitled to tribal or government benefits
due only to Indians.4 Indeed, enrollment — or at a minimum,
  4
    See, e.g., United States v. Antelope, 430 U.S. 641 (1977) (noting that
because § 1153 does not apply to many individuals who are racially to be
classified as Indians, the government offered proof that the defendants are
enrolled members of the Coeur d’Alene Tribe and thus not emancipated
from tribal relations; declining to reach question whether nonenrolled
Indians may ever be subject to § 1153); Lawrence, 51 F.3d at 152-54
(holding that alleged victim was non-Indian given that she was not an
enrolled member of the Oglala Sioux Tribe or any other tribe and wasn’t
eligible for enrollment because she had not completed the requirements for
tribal enrollment; the medical services she had received from the Indian
Health Service were not in her own right; the fact that the Oglala Sioux
Tribe had taken custody and placed the victim under the care of her grand-
mother (an enrolled member) was too insignificant an involvement to
show tribal recognition as the victim was not enrolled or eligible for
enrollment; and she did not attend pow-wows, Indian dances or other
Indian cultural events and lived off-reservation except for a brief period
before she was abused); United States v. James, 980 F.2d 1314, 1319 (9th
Cir. 1992) (holding that facts conclusively proved that the defendant and
victim were enrolled Indians within the meaning of § 1153); United States
v. Dodge, 538 F.2d 770, 786-87 (8th Cir. 1976) (holding that evidence of
having filed an application for enrollment in the Yurok Tribe and previous
entry on the Pawnee tribal roll, and the fact that defendants had held them-
selves out to be Indians within the meaning of § 1153, established Indian
status under § 1153); United States v. Heath, 509 F.2d 16, 19 (9th Cir.
1974) (refusing to uphold federal jurisdiction over an individual who was
anthropologically a Klamath Indian after the Termination Act ended his
tribal affiliation); United States v. Ives, 504 F.2d 935, 953 (9th Cir. 1974)
(stating, in dicta, that enrollment or lack of it is not determinative of status
as an Indian; the defendant had asked that his name be removed from the
rolls of the Colville Tribe but it was not done); Ex parte Pero, 99 F.2d 28,
30-32 (7th Cir. 1938) (holding on habeas review of a state court convic-
tion that petitioner was Indian even though the enrolling agent for the Bad
River Reservation had refused to enroll him because he belonged to the
                       UNITED STATES v. BRUCE                         547
eligibility for enrollment — may be constitutionally required
to avoid equal protection problems because otherwise,
enforcement of federal criminal laws would arguably be based
on an impermissible racial classification. See Antelope, 430
U.S. at 646 (holding that there was no constitutional problem
because defendants were not subjected to federal criminal
jurisdiction under § 1153 on account of their Indian race, but
because they are enrolled members of the Coeur d’Alene
Tribe); Keys, 103 F.3d at 761 (noting that Antelope had
upheld prosecution on equal protection grounds because “the
term ‘Indian’ describes a political group or membership, not
a racial group”).

   It is difficult to fathom what the “recognition” prong of
Rogers means if not enrollment or eligibility for enrollment in
a tribe, or receipt of tribal or federal benefits to which only
Indians are entitled. Indian ties cannot be enough, because
one can have ties without legal status. As the Supreme Court
observed in Duro v. Reina, “[m]any non-Indians reside on
reservations, and have close ties to tribes through marriage or

Lost Band of St. Croix Chippewas — an action which didn’t show that the
petitioner was not Indian but rather, was evidence that he was — and not-
ing that he was the child of a full-blooded Indian of the St. Croix Band
of Lake Superior Chippewas and a father who was a half-blood, had
always resided on a reservation that was set aside by treaty for the
LaPointe Band and other Indians who might settle with them, he main-
tained tribal relations with the Indians on the reservation and was recog-
nized as a Chippewa Indian by other Indians); Petition of Carmen, 165 F.
Supp. 942, 948 (N.D. Cal. 1958) (finding no doubt that petitioner is an
Indian subject to the Major Crimes Act as he is an Indian by blood and
enrolled as a member of the Mono tribe), aff’d sub nom. Dickson v. Car-
men, 270 F.2d 809 (9th Cir. 1959); see also Halbert v. United States, 283
U.S. 753, 762-63 (1931) (noting the general rule that the right of individ-
ual Indians to share in tribal property depends on tribal membership); Vez-
ina v. United States, 245 F. 411 (8th Cir. 1917) (holding that person who
was by blood of the Fond du Lac band of the Chippewas of Lake Superior
who moved to the reservation, was recognized, enrolled, and secured allot-
ments upon the reservation were members).
548                      UNITED STATES v. BRUCE
long employment. Indeed, the population of non-Indians on
reservations generally is greater than the population of all
Indians, . . .” 495 U.S. 676, 695 (1990).

   But if — as the majority holds — ties are enough for pur-
poses of § 1152, no reason of logic, linguistics, or grammar
suggests that ties should not also be enough for purposes of
§ 1153.5 Yet clearly they are not. To the contrary, we have
held for purposes of § 1153 that a terminated Klamath Indian
is no longer an Indian because she lost her Indian legal status
upon termination. United States v. Heath, 509 F.2d 16, 19
(9th Cir. 1974); Hester, 719 F.2d at 1043 n.2 (so noting). If
that is so, then it makes no sense for an Indian who has never
had tribal membership and is ineligible for it to have legal sta-
tus as an Indian. A court cannot rationally hold that both
things are true.

   United States v. Keys, 103 F.3d 758 (9th Cir. 1996), which
the majority points to as “instructive,” op. at 532, is different.
There, the question of Indian status arose with respect to a
two-year old girl who was not enrolled in the Tribe. However,
we decided that her lack of enrollment did not control the
determination of her Indian status because she could not have
enrolled herself, her mother was an enrolled member of the
Colorado River Indian Tribe, the girl had one-quarter Colo-
rado River Indian blood, the girl’s custody was litigated in the
Colorado River Indian Tribal Court which exercised jurisdic-
  5
   As we observed in United States v. Jackson, 600 F.2d 1283, 1285-86
(9th Cir. 1979):
      Section 1153 should be read in conjunction with § 1152, which
      extends “the general laws of the United States as to the punish-
      ment of offenses . . . to the Indian country” with certain excep-
      tions. . . . Thus, the general rule is that “except for the offenses
      enumerated in (section 1153), all crimes committed by enrolled
      Indians against other Indians within Indian country are subject to
      the jurisdiction of tribal courts.”
United States v. Antelope, 430 U.S. 641, 643 n.2 (1977).
                       UNITED STATES v. BRUCE                         549
tion over her and continued to do so at the time of the federal
action, and the allegations that formed the gravamen of the
federal prosecution were investigated by Colorado River
Indian police. Id. at 761. Bruce’s situation differs because she
is an adult who could have enrolled herself (if she were eligi-
ble), she has one-eighth Chippewa blood (which is not the
bloodline of the Ford Peck tribes), and she was not under the
jurisdiction of any tribal court at the time of the federal action.

   In sum, the district court got the test right, correctly con-
strued the facts in the light most favorable to Bruce, and con-
cluded that, as a matter of law, the evidence adduced by
Bruce does not permit a reasonable inference that she has
Indian legal status. Applying the Rogers test, the district court
acknowledged evidence of some Indian blood possessed by
Bruce. This evidence shows that she is one-eighth Chippewa,
but there is no evidence that this meets the quantum of blood
requirement for recognition by that tribe. As Judge Canby
notes in his Nutshell, tribes have different blood requirements
for enrollment; many require one-fourth tribal blood, and at
least one requires five-eighths.6 William C. Canby, Jr., Ameri-
can Indian Law in a Nutshell 10 (4th ed. 2003). Regardless,
there is no evidence that Bruce is enrolled as a member of the
Turtle Mountain Tribe — where her mother is enrolled — or
of the Sioux or Assiniboine tribes which are the two tribes at
Ford Peck, where Bruce now lives, or of any Chippewa tribe.
There is no evidence that she is eligible for membership.
There is no evidence that Bruce holds herself out as Indian;
although she enrolled two of her three children, she has not
enrolled (or for all that appears, ever tried to enroll) herself.
  6
   One circuit court (functioning as a trial court) found based on evidence
of custom and prior enrollment that one-eighth blood was sufficient to be
enrolled as a member of a particular tribe that the persons involved (who
were of mixed Indian blood) had chosen to identify themselves with, and
to be entitled to tribal benefits. Sully v. United States, 195 F. 113
(C.C.D.S.D. 1912). Whether or not one-eighth blood is sufficient in some
cases, there is no evidence in this case that it would suffice for purposes
of membership in, or identification with, any relevant tribe.
550                 UNITED STATES v. BRUCE
This indicates that she either knows that she cannot be a tribal
member, or does not wish to identify herself as one. There is
no evidence that she has received benefits, payments, or allot-
ments to which only an Indian is entitled. Nor is there any
evidence that Bruce has taken part in tribal affairs by voting,
serving on juries, or holding office. There is no evidence that
Fort Peck has been involved in her life in a significant enough
way to constitute recognition; and conversely, visiting a sweat
lodge with her mother on one occasion does not manifest par-
ticipation in Indian life or heritage to any substantial extent.
The only evidence of Bruce’s legal status as an Indian comes
from the fact that her mother is an enrolled member of the
Turtle Mountain Tribe, Bruce was “arrested tribal,” was mar-
ried for a time to an Indian, has two enrolled children, lives
on the Fort Peck reservation (which is home to tribes with
which she has no blood relationship), and socializes with oth-
ers on the reservation because of her children. This could well
be true of a lot of people, for many non-Indians live on Indian
reservations, where they too get in trouble, socialize with
Indians, marry Indians, and have children who are recognized
as Indian. These facts alone do not raise an inference that
Bruce has been recognized by any tribe or the government.

   Accordingly, the district court correctly concluded that
Bruce failed to produce sufficient evidence to support a find-
ing that she has legal status as an Indian. I would not cut a
new path that allows someone to have the legal status of an
Indian, and not an Indian, on the same set of facts that does
not include enrollment, eligibility for enrollment, or entitle-
ment to Indian benefits as a common denominator. I therefore
dissent.
