--- Am. Tribal Law ----, 2025 WL 80094 (Fort Peck C.A.)
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Fort Peck Court of Appeals.
 
Sierra JACKSON, Appellant,
 
v.
 
FORT PECK TRIBES, Appellees.
 
CAUSE NO. AP # 868
|
FILED JANUARY 10, 2025

Appeal from the Fort Peck Tribal Court, Lonnie Headdress, Presiding Judge.

Before E. Shanley, Chief Justice; J. Grijalva, Associate Justice; and B.J. Jones, Associate Justice.

 

ORDER AFTER RECONSIDERATION REQUEST

BACKGROUND

¶ 1 This Court denied Ms. Jackson’s appeal of the lower court’s decision finding probable cause to believe that she was an “Indian” person at the time she conditionally plod guilty to certain criminal offenses while reserving the right to appeal the lower court’s determination that she was Indian. After that decision was issued Ms. Jackson asked for reconsideration and requested that this Court clear up what she contends are conflicting precedents from this Court on who is an Indian for purposes of the Court’s criminal jurisdiction. Specifically, she asks that the Court lay out a legal standard for the lower court to assess who is an Indian person.

¶ 2 This Court declines to issue an “advisory” opinion on this issue and once again points out that the determination of whether a person is “Indian” under the Indian Civil Rights Act is a factual determination, not a legal one. This Court understands how frustrating this must be to have such an amorphous standard to determine an important part of criminal jurisdiction, but Congress created this chaotic situation when it forced Tribes to apply the standards for determining who is Indian under the Major Crimes Act as the same standard for tribal court criminal jurisdiction as a way of restoring tribal criminal jurisdiction over Indians from other Tribes. This Court has laid out the legal standards for making that determination in numerous prior cases cited by Ms. Jackson in her request for reconsideration. It is true, as the Appellant points out, that the ultimate triers of fact in criminal cases—either Judges or juries—may very well issue conflicting determinations of whether a person is Indian. There could be a situation, for example, where the Appellant herein could be determined an Indian person by a Judge, but found not to be an Indian for criminal purposes by a jury. This is no different, however, than other ocassions where legal issues are predicated upon factual findings. A Defendant can be charged with Driving While Under the Influence and one trier of fact may find a person too impaired to safely drive in the same situation where another factfinder may find to the contrary. That is the nature of the criminal justice system where human beings ultimately make factual determinations, not legal principles.

¶ 3 This Court cannot definitively state a legal standard that is always controlling in determining a factual issue such as who is considered an Indian for purposes of criminal jurisdiction except to reiterate the previous cases of this Court that discuss how to raise this factual issue both before trial and during trial. This Court has held in Jackson v. Fort Peck Tribes, AP # 868 and Grant v. Fort Peck Tribes, AP # 871, that the Tribes have the burden to prove a Defendant’s Indian status in accordance with the common law test established by United States v. Rogers, 45 US 567, 572, 4 How. 567, 11 L.Ed. 1105 (1846). In the event the Tribes fail to bring forth evidence sufficient to prove a Defendant’s Indian status, the Defendant must move for a directed verdict at the close of the Tribes’ case in chief showing that tire Tribes failed to meet their burden to prove all elements beyond a reasonable doubt in order to preserve the issue for appeal.

¶ 4 Here, Appellant has entered a guilty plea to the charges, thereby providing an admission of her Indian status, subject to this appeal. While Defendant may enter a conditional plea reserving her right to have an appellate court review an adverse determination of a specified pretrial motion and subsequently withdraw that plea in the event she prevails on appeal1, this factual determination is not one properly brought before the court in a pre-trial motion and must be determined by the trier of fact at a trial.

¶ 5 While we again reiterate the process discussed in other cases, the request for reconsideration, is thus DENIED.

All Citations
--- Am. Tribal Law ----, 2025 WL 80094

Footnotes
1	See Fed.R.Crim.Pro., Rule 11.