[00:00:00] Speaker 02:
24-7030, United States v. Hebert.

[00:00:06] Speaker 04:
Good morning, Your Honors, and may it please the Court, Jared Gimmer, on behalf of the appellant, Dennis Hebert.

[00:00:13] Speaker 04:
Our appeal raises three issues, and I aim to address all three, if time allows.

[00:00:19] Speaker 04:
The government's evidence was insufficient to permit a rational jury to find that Mr. Hebert was a non-Indian person beyond a reasonable doubt.

[00:00:29] Speaker 04:
The government's evidence did not prove that Mr. Hebert lacks a degree of Indian blood, nor did it prove the absence of any recognition.

[00:00:39] Speaker 04:
The government presented four- It just had to prove one, right?

[00:00:43] Speaker 04:
They only have to prove the absence of one, Your Honor.

[00:00:45] Speaker 04:
That's correct.

[00:00:46] Speaker 04:
And the government's weak evidence on this, it presented four witnesses.

[00:00:50] Speaker 04:
Its weak evidence was further weakened by the failure to ask key questions of those witnesses and actually a fifth witness that the parties haven't significantly discussed in briefing.

[00:01:03] Speaker 04:
Starting with Mr. Hebert's stepdaughter, I think she's probably the star of the show for the government.

[00:01:10] Speaker 04:
The first thing she's asked is just from being his stepdaughter.

[00:01:15] Speaker 04:
does she know if he's a member of an Indian tribe?

[00:01:18] Speaker 04:
So the government, in asking that question, cabins both the basis of her knowledge to just by being his stepdaughter and also limits the question to membership.

[00:01:30] Speaker 04:
She says not that she knows of.

[00:01:32] Speaker 04:
The government then asks her, has he ever said he was an Indian?

[00:01:38] Speaker 04:
The government does not confirm with her that she actually understands what that means in a legal sense.

[00:01:43] Speaker 04:
The following question, she says that no, she has not heard him describe himself as an Indian, asks about his racial identity, how he's self-identified.

[00:01:53] Speaker 04:
She says part Mexican.

[00:01:54] Speaker 04:
I think that contextualizes the prior question.

[00:01:57] Speaker 04:
She understands Indian to be a racial concept in this moment because it's not asking, has he ever been associated with a tribe?

[00:02:05] Speaker 04:
Has he ever received benefits?

[00:02:07] Speaker 04:
Do you know if he has any blood at all from Indian ancestry?

[00:02:13] Speaker 04:
Then we can quickly turn to Investigator Grantham.

[00:02:18] Speaker 04:
Grantham says that Mr. Hebert identified himself as Hispanic Latino.

[00:02:26] Speaker 04:
Investigator Grantham also says he contacted the five major tribes.

[00:02:30] Speaker 04:
Notably, he never actually says they responded to his contact, never even says what he asked of them.

[00:02:38] Speaker 04:
Investigator Grantham also states that he had access to the Choctaw Nation's membership database, never actually says he used it to look up Mr. Hebert's status.

[00:02:51] Speaker 03:
Can I ask you a question?

[00:02:52] Speaker 03:
I don't want to interrupt your train of thought.

[00:02:55] Speaker 03:
Is there evidence in the record about where Mr. Hebert was born?

[00:03:03] Speaker 04:
I don't believe it came about at trial.

[00:03:06] Speaker 04:
I believe the PSR, and I'm not 100% certain of this.

[00:03:09] Speaker 03:
Well, sufficiency of the evidence, do we consider the PSR?

[00:03:13] Speaker 04:
For sufficiency of the evidence, no, Your Honor.

[00:03:15] Speaker 03:
All right.

[00:03:15] Speaker 03:
So if, and Dakota Grantham, or Mr. Dakota Grantham, was asking about the five tribes that are most prevalent in Oklahoma, if he was born in California, the five tribes that are most prevalent in California are completely different five tribes, right?

[00:03:33] Speaker 04:
Absolutely, Your Honor.

[00:03:34] Speaker 03:
In most states that have a sizable Indian population, there are a variety of tribes that are most prevalent, right?

[00:03:41] Speaker 04:
Absolutely, Your Honor.

[00:03:42] Speaker 03:
All right.

[00:03:42] Speaker 03:
So, all right.

[00:03:45] Speaker 04:
You may proceed.

[00:03:46] Speaker 04:
And that dovetails nicely with one of my key points.

[00:03:50] Speaker 04:
The only evidence in the record of Mr. Hebert's connection to Oklahoma and in theory these five major tribes is the crime happened in Oklahoma.

[00:03:58] Speaker 04:
He prior to this crime lived in Texas.

[00:04:02] Speaker 04:
We hear that Ms.

[00:04:03] Speaker 04:
Byers testifies that he lived in Texas with her mother at the time.

[00:04:07] Speaker 04:
That was why he ended up in Oklahoma.

[00:04:09] Speaker 04:
There was a fight.

[00:04:11] Speaker 04:
So moving forward to Special Agent Sensor.

[00:04:15] Speaker 04:
Special Agent Sensor never actually testifies that Mr. Hebert identified as any particular race.

[00:04:20] Speaker 04:
He was simply asked, did Mr. Hebert spontaneously declare himself to be Indian or Native American?

[00:04:26] Speaker 04:
The answer was no.

[00:04:28] Speaker 04:
Paul Spark is similar to Investigator Grantham.

[00:04:31] Speaker 04:
He did contact the five tribes, but again, he never actually testifies that any of those tribes responded.

[00:04:39] Speaker 04:
And to give an example of this, I've contacted a particular BOP official to set up an attorney-client phone call.

[00:04:46] Speaker 04:
I've never gotten a response from that official.

[00:04:48] Speaker 04:
I've had to email multiple times with no response.

[00:04:51] Speaker 04:
It could be that the government did not ask about if he received a response and what that response was.

[00:04:57] Speaker 04:
because that might have triggered a hearsay objection.

[00:05:01] Speaker 04:
But there is now no evidence that he actually got a response.

[00:05:05] Speaker 04:
The fifth witness that neither parties significantly discussed in briefing said nothing about Mr. Hebert at all.

[00:05:12] Speaker 04:
That is Erica Tomlinson, and her testimony is at Volume 3, pages 286 through 290.

[00:05:21] Speaker 04:
She's employed by the Choctaw Nation in the Tribal Membership Department.

[00:05:26] Speaker 04:
Her purpose was to testify about KD's membership in the Choctaw Nation and his degree of Indian blood.

[00:05:35] Speaker 04:
She confirms that he has both.

[00:05:38] Speaker 04:
She has never asked if Mr. Hebert is a member of the tribe, even though she has access to that database, and the crime allegedly occurred within the Choctaw Nation's boundaries.

[00:05:50] Speaker 04:
On cross-examination, counsel for Mr. Hebert specifically asked

[00:05:54] Speaker 04:
Can you confirm if a person is not a member of the Choctaw Nation?

[00:05:59] Speaker 04:
Erica Tomlinson says, yes.

[00:06:01] Speaker 04:
No further questions from the defense.

[00:06:03] Speaker 04:
The government then chooses to not redirect, even though that softball was tossed up in the air.

[00:06:10] Speaker 04:
So we have these five witnesses who say nothing about his recognition in a tribe and

[00:06:20] Speaker 04:
We have five witnesses who, in some degree or another, speak about his claim of racial identity.

[00:06:28] Speaker 04:
And that brings us to, I think, what is really this underlying problem.

[00:06:33] Speaker 01:
Could I just ask you, now that you've gone through the government's evidence, was any of the government's evidence controverted?

[00:06:46] Speaker 04:
I suppose that depends on how we define controverted, Your Honor.

[00:06:49] Speaker 04:
Mr. Hebert did not present his own evidence.

[00:06:53] Speaker 04:
He is not obligated to do so.

[00:06:55] Speaker 04:
Mr. Hebert's counsel did at least sometimes challenge these witnesses on either the basis of their knowledge or what knowledge they actually had.

[00:07:04] Speaker 04:
For example, as to investigator Grantham, the counsel asked, did you actually get any written documentation from these tribes?

[00:07:15] Speaker 04:
He says no.

[00:07:18] Speaker 04:
As to Paul Spark, there was really nothing to say.

[00:07:22] Speaker 04:
It was, I contacted five tribes.

[00:07:25] Speaker 04:
It was essentially the same as Dakota Grantham.

[00:07:28] Speaker 04:
Council did not challenge specifically Kara Byers' testimony, but I don't think Kara Byers really said anything significant.

[00:07:40] Speaker 04:
She said that to her knowledge, he had not claimed to be a member and she'd not heard him say he was an Indian.

[00:07:48] Speaker 04:
But again, this is all being viewed through the prism of race.

[00:07:51] Speaker 04:
The government's entire case is brought through the prism of race.

[00:07:55] Speaker 04:
They keep trying to bring in, he identified as white.

[00:07:58] Speaker 01:
Let me just ask you a question there, because you spent a lot of time in your briefing about this point.

[00:08:07] Speaker 01:
And so my question to you is whether

[00:08:14] Speaker 01:
Well, let me back up.

[00:08:16] Speaker 01:
As I understand your argument, racial identity is not the same thing as Indian status.

[00:08:22] Speaker 01:
But my question to you is, can it be relevant?

[00:08:26] Speaker 01:
Is it relevant evidence?

[00:08:29] Speaker 04:
Insofar as the question of admissibility goes, Your Honor, I think it has its role to play.

[00:08:35] Speaker 04:
And it has to be viewed through a broader prism.

[00:08:39] Speaker 04:
There wouldn't be a proper objection for it.

[00:08:41] Speaker 04:
That's irrelevant.

[00:08:42] Speaker 04:
It shouldn't even come in.

[00:08:43] Speaker 04:
I don't think that would be correct.

[00:08:45] Speaker 04:
But question of whether evidence is relevant and whether it's sufficient to sustain a conviction, there's a pretty wide gap there because the bar for relevance is, frankly, about as low as these carpet fibers sometimes.

[00:08:58] Speaker 01:
One reason I'm asking you this, something caught my eye in your brief where you cited a study stating that 18%

[00:09:07] Speaker 01:
of US Latinos have Native American ancestry.

[00:09:11] Speaker 01:
And so I was thinking when I read that, well, then it must have some relevance because you're actually citing the study.

[00:09:21] Speaker 04:
It has relevance in the sense that I'm trying to push a little bit back against this idea that

[00:09:27] Speaker 04:
I used it there to say, well, the government is claiming he says he's Latino.

[00:09:32] Speaker 04:
That means he's not Indian, just period.

[00:09:33] Speaker 04:
That just means he's not Indian.

[00:09:35] Speaker 04:
And my point in citing that study is actually him saying he's Latino indicates he probably has Indian blood.

[00:09:43] Speaker 04:
Now, that's obviously not in the record for sufficiency purposes, but the idea that him saying he's Latino, he's Hispanic, he's white categorically means he's not Indian is frankly, scientifically absurd.

[00:09:57] Speaker 02:
You went through all the things that the government could have done with the witnesses it had that would have bolstered its position.

[00:10:10] Speaker 02:
Let's say it had done all that and got favorable responses.

[00:10:14] Speaker 02:
You'd still be saying it's not enough.

[00:10:17] Speaker 02:
Of course, Your Honor.

[00:10:17] Speaker 02:
Yes.

[00:10:19] Speaker 02:
So I think you're making a very good case here for the Anbhaam Court to set aside our precedent saying the burden is on the government.

[00:10:27] Speaker 02:
It's outrageous.

[00:10:28] Speaker 02:
It just makes no sense to make the government prove that someone is an Indian when it... I think the other circuits who have addressed it have said the burden is on it, the Supreme Court precedent on who is the burden certainly suggests that the government

[00:10:45] Speaker 02:
Don't you agree there's no way to prove, to disprove, to prove a negative.

[00:10:51] Speaker 02:
And you would, every case, someone with your intelligence will make a very strong argument that the government didn't do it.

[00:10:59] Speaker 04:
I agree that these arguments will always come up, your honor.

[00:11:02] Speaker 04:
I don't necessarily think this is the case for en banc review.

[00:11:05] Speaker 04:
I understand your honor's concerns.

[00:11:07] Speaker 04:
Part of the challenge here is a case like Diaz.

[00:11:12] Speaker 04:
I agree, this is not Diaz.

[00:11:14] Speaker 04:
But Diaz really gives the government a blueprint, which is bring in a witness who actually knows.

[00:11:20] Speaker 03:
Well, yeah, but how often are you going to have

[00:11:25] Speaker 03:
a dad who has done hundreds of years of genealogical research.

[00:11:30] Speaker 03:
You know, I mean, you can do genealogical research in my family, do a lot, find anybody that has done what Mr. Diaz did.

[00:11:37] Speaker 03:
So that's quite an exceptional circumstance.

[00:11:43] Speaker 04:
Yes, Your Honor, I agree.

[00:11:45] Speaker 04:
Diaz

[00:11:45] Speaker 04:
We shouldn't put the bar up at Diaz.

[00:11:47] Speaker 04:
That's too high.

[00:11:49] Speaker 04:
But we do have a father who obviously is in one of the best positions anyone can be to speak to their own child's ancestry, even without the genealogical research.

[00:12:00] Speaker 03:
Well, we have a stepdaughter, too.

[00:12:01] Speaker 03:
So let me ask you a hypothetical question, if I might, about that.

[00:12:04] Speaker 03:
Let's say that I am a defendant of a crime that takes place on Indian country.

[00:12:12] Speaker 03:
The victim is Indian.

[00:12:15] Speaker 03:
And so the question is whether or not I am an Indian.

[00:12:18] Speaker 03:
And one of the witnesses is my wife, who's been married to me for 30 years.

[00:12:22] Speaker 03:
And the question to my wife is, has he ever said that he has any Indian blood?

[00:12:27] Speaker 03:
No.

[00:12:27] Speaker 03:
Has he ever been to a powwow?

[00:12:29] Speaker 03:
No.

[00:12:30] Speaker 03:
Has he ever done anything to indicate that he thinks he's part Indian?

[00:12:37] Speaker 03:
No.

[00:12:38] Speaker 03:
And now, would that be sufficient viewing of the evidence in the light most favorable to the government to find that I am not

[00:12:45] Speaker 03:
an Indian, at least, well, under either of the print of Stu Prox.

[00:12:51] Speaker 04:
I think a spouse is probably second best to either a parent or a sibling.

[00:12:57] Speaker 03:
And so how do we say, okay, a dad's good, a wife's good, stepdaughter not so good?

[00:13:07] Speaker 04:
I think the problem is the

[00:13:09] Speaker 04:
Stepchildren and stepparents have wildly varying relationships with each other, from one family to the next.

[00:13:17] Speaker 04:
Sometimes stepchildren are not particularly close.

[00:13:19] Speaker 04:
Sometimes they're friendly.

[00:13:20] Speaker 04:
Sometimes they are extremely close to the point of practically being adopted.

[00:13:26] Speaker 04:
We heard that Ms.

[00:13:28] Speaker 04:
Byers has known Mr. Hebert for a long time, and he was willing to send money to her to help with bills.

[00:13:35] Speaker 04:
She was willing to allow him to live with her for a short period of time when he was down on his luck.

[00:13:40] Speaker 04:
But that doesn't necessarily tell us that she knows a lot about his ancestry or his personal dealings, say, tribal affiliations.

[00:13:50] Speaker 04:
We know her son is Indian.

[00:13:53] Speaker 04:
There was never any testimony that she spoke about that subject with him.

[00:13:58] Speaker 04:
That could have been important testimony that might have helped make this a much more challenging question from my perspective.

[00:14:04] Speaker 04:
The idea that they had spoken about being Indians and maybe he had said, no, I don't have any tribal affiliation.

[00:14:12] Speaker 04:
I wish I did.

[00:14:13] Speaker 04:
Free health care then.

[00:14:15] Speaker 04:
So I see I'm very close to running out of time.

[00:14:18] Speaker 04:
I want to touch on the second issue very quickly and the third.

[00:14:21] Speaker 04:
As to the jury instructions, the instructions never told the jury what facts it has to follow.

[00:14:30] Speaker 01:
Can I just zero in on that one?

[00:14:32] Speaker 01:
Yes, sir.

[00:14:34] Speaker 01:
Let's assume that it was error not to have an instruction.

[00:14:40] Speaker 01:
Let's assume it was plain.

[00:14:44] Speaker 01:
Have you shown, could you show that on step three of plain error review, that it affected your client's substantial rights?

[00:14:53] Speaker 01:
And let me just add one other part to this.

[00:14:59] Speaker 01:
Is that showing different from your burden on sufficiency of the evidence?

[00:15:06] Speaker 01:
Have you thought about that?

[00:15:07] Speaker 01:
I have, your honor.

[00:15:08] Speaker 01:
Good, because I need some help from you on that.

[00:15:10] Speaker 01:
So what do you say?

[00:15:11] Speaker 04:
I think that even if the evidence is sufficient, that's actually a pretty low bar in a generalized sense when we're talking about this issue, because we view the evidence in the light most favorable to the government in any rational fact finder.

[00:15:28] Speaker 04:
If the evidence was sufficient, there was still a harm to Mr. Hebert's substantial rights because the entire

[00:15:40] Speaker 04:
prism through which this evidence was presented was racial in nature, and it invited the jury to make a finding based on racial classifications rather than the actual facts that it had to find, which was either the absence of blood, which

[00:16:01] Speaker 04:
we can generally understand is unlikely for an American citizen in this country that has more than a few generations of American ancestry.

[00:16:10] Speaker 04:
Or the absence of recognition.

[00:16:14] Speaker 04:
They were simply told, he's claimed to be Mexican, he's claimed to be white, his stepdaughters never heard him say he was an Indian.

[00:16:20] Speaker 04:
Oh, and by the way, he never spontaneously declared himself to be an Indian to two law enforcement officers, even though he'd been read his Miranda rights.

[00:16:31] Speaker 04:
I am out of time.

[00:16:35] Speaker 02:
I thought your third issue was the most interesting.

[00:16:49] Speaker 02:
Separately.

[00:16:52] Speaker 00:
May it please the court.

[00:16:53] Speaker 00:
My name is Linda Epperly.

[00:16:55] Speaker 00:
I represent the United States as we struggle once again with

[00:17:00] Speaker 00:
the requirements for proving non-Indian status under Section 1152.

[00:17:05] Speaker 00:
It's easy to develop a very limited view of looking at 1152 and how you do or do not prove the defendant's Indian status.

[00:17:18] Speaker 00:
However, it's helpful to look at the clear distinction that was drawn in the

[00:17:36] Speaker 00:
In the Whitehorse case in South Dakota by Judge Karen Shrier, who was sitting by designation with the Eighth Circuit, and she noted the complementary nature between 1152 and 1153.

[00:17:50] Speaker 00:
In that case, as here, there was no evidence controverting the facts of this assault.

[00:17:58] Speaker 00:
The only issue comes down to whether that defendant is Indian or not Indian, because the victim is Indian.

[00:18:05] Speaker 00:
And in that case, she said, the defendant is either an Indian or he is not.

[00:18:11] Speaker 00:
Between those two options, 1153 and 1152, that would apply to all defendants of either race.

[00:18:19] Speaker 00:
The difficulty, as this court has struggled with, is how to have a jury make that determination when those are actually two separate statutes.

[00:18:31] Speaker 03:
But there is an affirmative defense in the Eighth Circuit.

[00:18:34] Speaker 00:
Yeah, that's true.

[00:18:35] Speaker 00:
And I know that the arguments as to Antelope and whether or not being an Indian is a race-based classification versus a political classification, this court is well aware of those.

[00:18:50] Speaker 00:
During the Prentice litigation, the government argued, relying on Antelope, that Indian blood should not have been part of this test.

[00:18:58] Speaker 00:
It was rejected by this court back then.

[00:19:01] Speaker 00:
And I think there's a difference between saying someone is racially an Indian under this court's law and determining whether or not they have any Indian blood.

[00:19:16] Speaker 01:
Well, but here we are.

[00:19:19] Speaker 01:
Here we are.

[00:19:20] Speaker 01:
And once there's a charging decision,

[00:19:27] Speaker 01:
there was a charging decision made here.

[00:19:30] Speaker 01:
And I suppose in hindsight, one can say, well, questions should have been asked.

[00:19:36] Speaker 01:
Certain things maybe should have been done.

[00:19:38] Speaker 01:
The evidence either could have been stronger or maybe it even could have gone the other way.

[00:19:46] Speaker 01:
But once the case is charged, that doesn't stop further investigation.

[00:19:54] Speaker 01:
And so again, here we are.

[00:19:57] Speaker 01:
And we have this evidence.

[00:19:59] Speaker 01:
And under our sufficiency of the evidence standard of review, it's a very favorable standard to the government.

[00:20:07] Speaker 01:
But where I start to have some issues is the beyond a reasonable doubt part of it.

[00:20:15] Speaker 01:
And so I'm interested in how the stepdaughter's testimony or the contacting of the five major tribes

[00:20:26] Speaker 01:
How does that get you past the beyond a reasonable doubt?

[00:20:31] Speaker 01:
How does it permit an inference of non-Indian status beyond a reasonable doubt?

[00:20:38] Speaker 00:
Again, this court is limited by, as a jury is, trying to determine whether there is any reasonable doubt, not trying to figure out whether there is any doubt.

[00:20:54] Speaker 00:
When we look at family relationships, the court mentioned a father or the opposing counsel did.

[00:21:03] Speaker 00:
A father might have a good idea.

[00:21:04] Speaker 00:
Certainly the father did in the prior decision of this court.

[00:21:10] Speaker 00:
And there was some criticism from opposing counsel regarding the relationship that stepchildren may have with their parents and whether or not that would be sufficient.

[00:21:19] Speaker 00:
If this court attempts to

[00:21:22] Speaker 00:
state, you know, parents are OK, grandparents are OK, these are the only categories that qualify, that's going to create additional problems.

[00:21:31] Speaker 00:
Because we all know that there are parents who are estranged from their children.

[00:21:35] Speaker 00:
We have cases where there are defendants that are adopted who have no idea who their parents are.

[00:21:40] Speaker 00:
So we cannot rely on that.

[00:21:42] Speaker 00:
What instead we look to, or what this court has looked to in prior cases, is whether or not there is a reasonable

[00:21:52] Speaker 00:
basis to believe that the comment that was made by that relative is within their reasonable understanding of the circumstances, because we're looking at totality.

[00:22:08] Speaker 03:
To draw the reasonableness of the inference, don't we have to have a foundational basis for the witness, Kerry Byers, or my hypothetical, my wife, to know, either through genealogical research as

[00:22:22] Speaker 03:
that Diaz's father did or through some other testimony.

[00:22:26] Speaker 03:
You have to have that foundation, don't you?

[00:22:30] Speaker 00:
No, I believe it can be based on the reasonable knowledge of a family member.

[00:22:38] Speaker 03:
Okay, let's say that.

[00:22:41] Speaker 03:
Let's say we agree with you.

[00:22:43] Speaker 03:
And let's say hypothetically I have one three hundred sixty-fourth of Indian blood.

[00:22:48] Speaker 03:
I've never done genealogical research and under my hypothetical nobody in my family has.

[00:22:52] Speaker 03:
So variant of my question to defense counsel, and that is, so my wife or my father or my mother, maybe all of my family members say, they've never heard Bob Baccarat say whether or not, say that he has any Indian blood.

[00:23:09] Speaker 03:
Well, why in the world would they know if I don't know that I am 1,364th Indian blood?

[00:23:18] Speaker 03:
And if I have 1,364th of one of the 574 tribes that are federally recognized, then I would satisfy at least that element of premise 2, correct?

[00:23:30] Speaker 03:
That's correct.

[00:23:31] Speaker 03:
And so why should we draw any meaning to Carrie Byers' testimony if she had

[00:23:38] Speaker 03:
no information about whether or not he had actually any Indian blood.

[00:23:42] Speaker 03:
All she knows is he, like in my hypothetical, that Mr. Heber didn't know he had any Indian blood.

[00:23:49] Speaker 03:
Well, why would he know that he had Indian blood if he had never done any genealogical research?

[00:24:01] Speaker 00:
The judge's question

[00:24:03] Speaker 00:
is certainly reasonable, and particularly within Oklahoma, where we have tribes that don't have a blood quantum requirement.

[00:24:11] Speaker 00:
But the only way, and again, I come back to that concept of reasonableness, the only way for us to know for certain would be to do DNA testing, send it off to ancestry or somewhere, and have a company come back with all of that genetic makeup.

[00:24:28] Speaker 02:
That's just a probabilistic anyway, isn't it?

[00:24:31] Speaker 02:
It's what?

[00:24:31] Speaker 02:
Just probabilistic anyway, isn't it?

[00:24:33] Speaker 00:
Yes, that's just a probability.

[00:24:35] Speaker 00:
It's not the same as the genetic tracing, but we've got problems with requiring genetic tracing because, again, we have defendants and victims who may not know who their parents even are, much less any of their history.

[00:24:49] Speaker 03:
That's Judge Harts's question about the correctness of Prentice-Too, but we have to apply Prentice-Too, at least until it's overturned in Bonk or with this report.

[00:25:00] Speaker 03:
How can we adopt your position that, well, we can just infer that there was, you know, some, that there was no quantum whatsoever of any Indian blood based on what?

[00:25:20] Speaker 00:
the testimony of the stepdaughter, which is the family member that we have access to, who has told us she knew him for a long time.

[00:25:28] Speaker 00:
They may not have lived together, but he clearly is somebody that she talked to regularly.

[00:25:33] Speaker 00:
When he is walking on a road in Texas, that's the person he called.

[00:25:40] Speaker 00:
Just like in a drug case where we wish that our witnesses were saints and priests,

[00:25:47] Speaker 00:
In these cases, the government is stuck with the family that's put in front of us.

[00:25:52] Speaker 03:
But the prosecutor could have said, Ms.

[00:25:54] Speaker 03:
Byers, let me just kind of prove this a little bit.

[00:25:57] Speaker 03:
Ms.

[00:25:57] Speaker 03:
Byers, would you have known whether or not he had any Indian blood?

[00:26:03] Speaker 03:
That question was never asked.

[00:26:05] Speaker 03:
And without that question being asked, aren't we relegated to the realm of speculation about whether or not she would have known whether he had

[00:26:14] Speaker 03:
any quantum of Indian blood?

[00:26:19] Speaker 00:
Well, she clearly had asked him about his history to some degree, because at some point he had told her he thinks he's Mexican.

[00:26:31] Speaker 00:
And again, there is a fine line to be walked between talking about quantity of Indian blood and whether or not you're talking about a racial distinction or distinction for purposes of parenthesis.

[00:26:43] Speaker 00:
We recognize that.

[00:26:46] Speaker 00:
Part of what would make this all so much easier, so much more reasonable, not just for the government, but for all litigants and for the court is to, as we have suggested in the past, make this an affirmative defense.

[00:27:02] Speaker 00:
give us some parameters.

[00:27:05] Speaker 00:
Otherwise, I mean even... You know this panel can't.

[00:27:07] Speaker 00:
Excuse me?

[00:27:07] Speaker 00:
You know this panel can't.

[00:27:09] Speaker 00:
I understand.

[00:27:10] Speaker 00:
We just... You can always ask for an unbunked though.

[00:27:12] Speaker 00:
I always feel the need to raise this because the more cases that we have handled in Oklahoma, the more we realize bizarre fact patterns that you just can't prove.

[00:27:23] Speaker 01:
Well, counsel, one of the fact patterns here is that he had an Alabama

[00:27:29] Speaker 01:
and Florida driver's license, and he had lived in Texas, and there's nothing to indicate that anyone checked to see if he was a member of a tribe in one of those states.

[00:27:40] Speaker 01:
Isn't that a problem?

[00:27:48] Speaker 00:
I can see where somebody might want to talk to the tribes in Florida, the Miccosukee, the Seminole, the tribes in Georgia.

[00:27:56] Speaker 00:
Porch Band Creeks, the tribes in Louisiana, now that we know that that's where he's from based upon the PSR, we could have looked at various tribes in Texas.

[00:28:09] Speaker 00:
But none of that matters for purposes of whether or not in this case there was sufficient evidence.

[00:28:14] Speaker 03:
Well, it certainly matters for Dakota Grantham's testimony, doesn't it?

[00:28:19] Speaker 03:
If he's saying, I checked the five tribes in Oklahoma, and he doesn't say, I checked the five tribes in...

[00:28:26] Speaker 03:
Why would it matter what tribes are prevalent in Oklahoma if he just moved here from Louisiana?

[00:28:32] Speaker 00:
Well, because we are not privy to a lot of that information.

[00:28:36] Speaker 00:
We're not privy to what tribe he may or may not have been involved with.

[00:28:40] Speaker 00:
We didn't know that he was born in Louisiana until after.

[00:28:44] Speaker 03:
I'm not defaulting anybody, but I'm just saying in terms of whether or not we can draw a reasonable inference, viewing the evidence favorably to the government,

[00:28:53] Speaker 03:
be on a reasonable doubt that he was not a member of a tribe based on the contacting five tribes in some place that he happened to move to.

[00:29:05] Speaker 00:
In that case, at the time that that officer was doing the evaluation, I don't know that he knew those facts.

[00:29:13] Speaker 00:
I think that the defense brief indicates their view is that we should have proof from

[00:29:19] Speaker 00:
DNA proof from all of the 574 tribes.

[00:29:23] Speaker 00:
That's clearly not reasonable.

[00:29:26] Speaker 00:
We know that there is, and I don't believe it was error not to instruct on this, but there are the social factors that you can look at as to whether or not someone is an Indian, as Judge Bacharach has indicated in his prior opinions, a tenet set of powwow, an Indian who had hunting and fishing licenses, federal services.

[00:29:45] Speaker 00:
But are we going to require the government to call

[00:29:48] Speaker 00:
people from IHS and agriculture department and housing and all of the federal agencies to prove that they didn't get any benefits?

[00:29:57] Speaker 00:
Are we going to explore all powwows?

[00:30:00] Speaker 00:
Have someone there undercover to see if that person has been there?

[00:30:03] Speaker 00:
And again, where do you draw the line there?

[00:30:06] Speaker 00:
Are we going to require in Oklahoma particularly for somebody to go to the various Indian churches and find out if that person has ever been a member?

[00:30:15] Speaker 00:
Are they going to have to go to every stone ground?

[00:30:17] Speaker 00:
Are they going to have to go to

[00:30:18] Speaker 00:
every Indian art show and prove that a defendant never attempted to enter a painting or sculpture.

[00:30:25] Speaker 00:
You can take this to the logical extreme.

[00:30:28] Speaker 00:
And that is what keeps us up at night.

[00:30:32] Speaker 00:
And I'm sure this court is trying to struggle with this question.

[00:30:35] Speaker 01:
Could I just pivot to the jury instruction issue for a minute?

[00:30:42] Speaker 01:
The court didn't instruct on what it means to be an Indian or non-Indian.

[00:30:47] Speaker 01:
We have the standard, the two-part standard.

[00:30:52] Speaker 01:
And my question is, how could a jury make a factual finding on non-Indian status without some guidance on what those factors are?

[00:31:05] Speaker 00:
I think that we look to a jury making a decision based upon their common sense

[00:31:12] Speaker 00:
and what they understand as individuals.

[00:31:14] Speaker 00:
We don't tell people a specific way.

[00:31:16] Speaker 01:
Is it common sense that you have these two factors?

[00:31:23] Speaker 01:
Would a reasonable juror just intuit that without having any guidance?

[00:31:31] Speaker 01:
And if it was error not to give the jury some guidance,

[00:31:42] Speaker 01:
Why wouldn't there be a reasonable probability, at least, of prejudice when the jury was at sea on what the non-Indian or Indian is?

[00:31:54] Speaker 00:
I see I've run out of time.

[00:31:55] Speaker 00:
Could I answer the court's question?

[00:31:58] Speaker 00:
Yes, please.

[00:31:58] Speaker 00:
Just briefly.

[00:32:02] Speaker 00:
Again, this is a case where really the only issues were blood and membership.

[00:32:06] Speaker 00:
There was no proof of any of the social factors, so eliminate that.

[00:32:14] Speaker 00:
The court gave what was reasonably, just gave the introduction that this court has required.

[00:32:24] Speaker 00:
Some judges are giving that more involved argument, more involved instruction, but I believe that may be in cases where there's some proof about it.

[00:32:33] Speaker 00:
What we risk here in giving them additional factors to consider is if there's no evidence presented on it, it may confuse a jury.

[00:32:44] Speaker 00:
insinuate to the jury that the government should have gone out and done all of these other things to disprove them.

[00:32:49] Speaker 00:
All the United States had to do was disprove one of those factors.

[00:32:54] Speaker 00:
In other words, he's not Indian.

[00:32:55] Speaker 00:
He's not a member.

[00:32:56] Speaker 00:
And that is sufficient.

[00:32:58] Speaker 00:
That the court did hear.

[00:32:59] Speaker 00:
And for that reason, we would ask this court to affirm.

[00:33:02] Speaker 00:
Thank you, counsel.

[00:33:06] Speaker 00:
Case is submitted.

[00:33:07] Speaker 02:
Counselor excused.