Prosecutors do not like dismissing cases or having convictions overturned, so there has been much incentive for creative arguments to get around the consequences of the McGirt ruling. One such argument is to decrease the number of people that qualify as “Indian” by requiring some specific quantum of Indian blood, irrespective of tribal membership.
The authority cited for this argument is Goforth v. State, 1982 OK CR 48. However, the Diaz case noted below is the highest precedential authority deciding “Indian” for Oklahoma courts and it merely requires “some Indian blood.”
As can be seen from the quotes below, the language used to describe the blood requirement has evolved over time.
- Goforth v. State, 1982 OK CR 48, ¶6.
- “Two elements must be satisfied before it can be found that the appellant is an Indian under federal law. Initially, it must appear that he has a significant percentage of Indian blood. Secondly, the appellant must be recognized as an Indian either by the federal government or by some tribe or society of Indians. United States v. Rogers, 45 U.S. (4 How.) 567, 11 L.Ed. 1105 (1846).”
- United States v. LaBuff, 658 F.3d 873, 874-75 (9th Cir. 2011).
- “To meet its burden, the government must prove both that *875 the defendant has a sufficient “degree of Indian blood” and has “tribal or government recognition as an Indian.” United States v. Bruce, 394 F.3d 1215, 1223 (9th Cir.2005) (internal quotations omitted).”
- Vialpando v. State, 640 P.2d 77, 79-80 (Wyo. 1982).
- “The court then approved a test to determine whether or not a person is an Indian for purposes of criminal jurisdiction as follows: “Substantial amount of Indian blood plus a racial status in fact as an Indian.””
- United States v. Diaz, 679 F.3d 1183, 1187 (10th Cir. 2012).
- “To find that a person is an Indian the court must first make factual findings that the person has “some Indian blood” and, second, that the person is “recognized as an Indian by a tribe or by the federal government.” Id. at 1280 (citations omitted). United States v. Keys, 103 F.3d 758, 761 (9th Cir.1996) (same test); United States v. Torres, 733 F.2d 449 (7th Cir.1984) (same).”
