By Shawn White Wolf
HELENA - A recent ruling by the Ninth Circuit Court of Appeals may weaken one of the most basic powers of an American Indian tribe�s authority to determine its own membership. In fact, the case may set a new precedent in determining who is an American Indian. In Violet Bruce vs. United States of America, Bruce asserts that the case against her was brought under the wrong statute. In March of 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. Bruce admitted that she choked Cylus but, on her attorney�s advice, she pled not guilty. During the district court proceedings Bruce repeatedly argued that she was an Indian. Before trail, she moved to dismiss the indictment on the ground that it should have been brought under 18 United States Code 1153, which applies to certain crimes by Indians in Indian country, rather than 1152, which excepts crimes by Indians against Indians. The court denided the motion. Bruce then appealed the conviction. Bruce contends that she is an Indian, and the government should have charged her under 18 U.S.C. 1153. Circuit Court Judge Pamela Ann Rymer argued that there is no evidence that Bruce is an enrolled member of any tribe, recognized as a tribal member by any tribe or the federal government, enjoys any benefits of tribal affiliation, is eligible for tribal membership, nor has she voted in tribal elections, held a tribal office, served on a tribal jury, received payments or allotments made only to Indians, or that she is employed by a tribal organization. Yet, Circuit Court Judges Diarmuid F. O�Scannlain and Jay S. Bybee argued that they were not required to decide whether Bruce conclusively established that she was an Indian. Rather, they were to merely determine whether she brought forward enough evidence of tribal recognition to permit her defense to be heard by the jury. �We concluded that she did,� wrote Judge Bybee. Judge Bybee wrote that Bruce produced evidence that she had participated in sacred tribal rituals, including at least one sweat lodge ritual; that she had been 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 Center. Bybee continued, �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.� In March, the case will be reviewed again by the Ninth Circuit Court of Appeals.