Is the Timing of Obtaining Tribal Membership Relevant to Jurisdiction?

Some prosecutors are objecting to dismissals based on McGirt if the Defendant was not a tribal member on the date of the alleged offense.  When determining who is an “Indian” under the relevant Federal law, is one born an Indian or does one only become an Indian when registering with the relevant tribe?  Prosecutors are asserting the latter and citing non-precedential authority from other jurisdictions.  No precedential authority has been discovered on this issue and therefore it is likely to be litigated. 

Best practice at this point, is to research the Tribe’s laws regarding membership to see if there is a provision for membership at birth, in addition to membership at enrollment.

  • United States v. Zepeda, 792 F3d 1103, 1113 (9th Cir. 2015).
    • “In a prosecution under the IMCA, the government must prove that the defendant was an Indian at the time of the offense with which the defendant is charged. If the relevant time for determining Indian status were earlier or later, a defendant could not “predict with certainty” the consequences of his crime at the time he commits it. Apprendi v. New Jersey, 530 U.S. 466, 478 (2000). Moreover, the government could never be sure that its jurisdiction, although proper at the time of the crime, would not later vanish because an astute defendant managed to disassociate himself from his tribe. This would, for both the defendant and the government, undermine the “notice function” we expect criminal laws to serve. United States v. Francisco, 536 F.2d 1293, 1296 (9th Cir.1976).”
  • State v. Perank, 858 P.2d 927, 932 (Utah 1992).
    • “Although Perank was not formally enrolled in the Ute Tribe at the time of his conviction, lack of enrollment does not determine Indian status for purposes of jurisdiction. See Ex parte Pero, 99 F.2d at 31; St. Cloud, 702 F. Supp. at 1461; LaPier, 790 P.2d at 987. Nevertheless, the Tribe formally recognized Perank as an Indian and as a member of the Tribe by his enrollment in the Tribe at a later date. Moreover, under the terms of the Ute Indian Tribe Constitution, it appears that Perank was a member of the Ute Tribe at the time of the offense. Article II, section 1(b) of the Constitution provided that a child born to a member of the Tribe living on the Reservation at the time of the birth is entitled to membership. That provision states:  Section 1. The membership of the Ute Indian Tribe of the Uintah and Ouray Reservation shall consist as follows:  . . .  (b) All children born to any member of the Ute Indian Tribe of the Uintah and Ouray Reservation who is a resident of the Reservation at the time of the birth of said children.”

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