10th Circuit questions who bears burden of proving Native status in tribal land criminal cases

The full 10th Circuit heard arguments on whether federal prosecutors must prove beyond a reasonable doubt that a defendant is not Native American before they can be convicted of crimes on tribal land, a rule traced to a 2001 en banc decision and, before that, an 1817 statute.

The rule has already overturned three convictions in recent years, including two 2024 aggravated sexual abuse convictions against Dennis Herbert and Joel Ruiz, both sentenced to 30 years before appellate panels found the government hadn't disproven their Indian ancestry. U.S. Attorney Paige Messec asked the full court to fix what she called a 20-year-old mistake, while defense attorneys argued shifting the burden would trample tribal sovereignty and Fifth Amendment protections.

Judges across the ideological spectrum, appointed by four different presidents, picked apart both sides without tipping their hand, and the court gave no timeline for a decision.

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