United States v. Ruiz

Appellate Case: 24-7030 Document: 115-1 Date Filed: 10/14/2026 Page: 1 FILED United States Court of Appeals PUBLISH Tenth Circuit UNITED STATES COURT OF APPEALS October 14, 2026 Christopher M. Wolpert FOR THE TENTH CIRCUIT Clerk of Court _________________________________ UNITED STATES OF AMERICA, Plaintiff - Appellee, v. No. 24-7030 DENNIS HEBERT, Defendant - Appellant. ------------------------------ KEVIN WASHBURN; TENTH CIRCUIT FEDERAL PUBLIC DEFENDERS, Amici Curiae. ––––––––––––––––––––––––––––––––––– UNITED STATES OF AMERICA, Plaintiff - Appellee, v. No. 24-2128 JOEL RUIZ, Defendant - Appellant. ------------------------------ KEVIN WASHBURN; TENTH CIRCUIT FEDERAL PUBLIC DEFENDERS, Amici Curiae. _________________________________ Appeal from the United States District Court for the Eastern District of Oklahoma (D.C. No. 6:22-CR-00106-RAW-1)  Appellate Case: 24-7030 Document: 115-1 Date Filed: 10/14/2026 Page: 2 and Appeal from the United States District Court for the District of New Mexico (D.C. No. 1:22-CR-00365-DHU-1) ________________________________ Jared T. Guemmer, Assistant Federal Public Defender, (Julia L. O’Connell, Federal Public Defender and Whitney R. Mauldin, Assistant Federal Public Defender, Office of the Federal Public Defender, Northern District of Oklahoma, Tulsa, Oklahoma, with them on the briefs), and Violet N.D. Edelman, Assistant Federal Public Defender, (Margaret A. Katze, Federal Public Defender, Office of the Federal Public Defender, District of New Mexico, Albuquerque, New Mexico, with them on the briefs), for Defendants-Appellants. C. Paige Messec, Assistant United States Attorney, Office of the United States Attorney, District of New Mexico, Albuquerque, New Mexico, (Todd Blanche, Attorney General for the United States; Christopher J. Wilson, United States Attorney and Linda A. Epperley, Assistant United States Attorney, Office of the United States Attorney, Eastern District of Oklahoma, Muskogee, Oklahoma; Ryan Ellison, First Assistant United States Attorney and Caitlin L. Dillon, Assistant United States Attorney, Office of the United States Attorney, District of New Mexico, Albuquerque, New Mexico, with them on the briefs), for Plaintiff-Appellee. Kevin Washburn, UC Berkeley School of Law, Berkeley, California, filed an amicus brief in support of affirmance. Matthew K. Belcher, Interim Federal Public Defender, District of Colorado, Denver, Colorado, (Tracy Hucke, Federal Public Defender, District of Wyoming, Cheyenne, Wyoming; Scott Graham, Federal Public Defender, Eastern District of Oklahoma, Muskogee, Oklahoma; Jeffrey M. Byers, Federal Public Defender, Western District of Oklahoma, Oklahoma City, Oklahoma; Mitch Biebighauser, Interim Federal Public Defender, District of Kansas, Kansas City, Kansas; and Scott Wilson, Federal Public Defender, District of Utah, Salt Lake City, Utah, with him on the brief), filed an amicus brief in support of Defendants-Appellants. _________________________________ Before HOLMES, Chief Judge, HARTZ, TYMKOVICH, MATHESON, BACHARACH, PHILLIPS, McHUGH, MORITZ, EID, CARSON, ROSSMAN, and FEDERICO, Circuit Judges. _________________________________ MATHESON, Circuit Judge. _________________________________ 2  Appellate Case: 24-7030 Document: 115-1 Date Filed: 10/14/2026 Page: 3 In United States v. Prentiss, 256 F.3d 971, 980 (10th Cir. 2001) (en banc) (“Prentiss II”), this court held that when a defendant is charged with an offense under 18 U.S.C. § 1152, and the victim is an Indian, the government must prove the defendant is not an Indian as an element of the offense. 1 In two recent cases brought under § 1152, juries convicted Dennis Hebert and Joel Ruiz of sexual abuse of a minor in Indian country. 2 In each case, because the victim was an Indian, Prentiss II required the prosecution to prove the defendant was a non-Indian. On direct appeal, both defendants argued the evidence was insufficient on only this element. The panels agreed and vacated the convictions. United States v. Hebert, 159 F.4th 777 (10th Cir. 2025); United States v. Ruiz, 164 F.4th 1223 (10th Cir. 2026). The government petitioned for en banc review in both cases, asking this court to revisit Prentiss’s allocation of the burden to prove the defendant’s Indian status. We voted to do so and consolidated the cases for en banc consideration. We list below the questions we ordered the parties to brief along with our answers: 1. Under the General Crimes Act, [18 U.S.C § 1152,] is a defendant’s non-Indian status an essential element that the 1 This court has issued three opinions under the caption “United States v. Prentiss”: 206 F.3d 960 (10th Cir. 2000) (“Prentiss I”); 256 F.3d 971 (10th Cir. 2001) (en banc) (“Prentiss II”); and 273 F.3d 1277 (10th Cir. 2001) (“Prentiss III”). Our primary focus in this opinion is on the en banc decision in “Prentiss II.” 2 The indictments charged them with aggravated sexual abuse of a minor in Indian country. Mr. Hebert was charged under 18 U.S.C. §§ 1151, 1152, 2241(c), and 2246(2)(A). Mr. Ruiz was charged under 18 U.S.C. §§ 1152, 2241(c), and 2246(2)(D). 3  Appellate Case: 24-7030 Document: 115-1 Date Filed: 10/14/2026 Page: 4 indictment must allege and on which the government must bear the initial burden of production? Or is a defendant’s []Indian status an affirmative defense that the defendant must raise and bear the initial burden of production? In a § 1152 prosecution in which the victim is an Indian, the defendant’s Indian status is an affirmative defense on which the defendant bears the burden of production. 2. Does the government or the defendant bear the ultimate burden of persuasion on []Indian status? The defendant bears the burden of persuasion by a preponderance to establish the affirmative defense of Indian status. 3. How should the “Indian canon” of statutory interpretation affect our analysis? The Indian canon plays at most a limited role. 4. If the en banc court determines that defendants must raise []Indian status as an affirmative defense and bear the initial burden of production, should we remand Mr. Hebert’s and Mr. Ruiz’s cases for retrial? We see no constitutional limits that would prevent retrial, and we remand for the respective panels to determine the next steps in these cases. For the reasons stated below, we overturn Prentiss II in part, holding that in a prosecution under § 1152 where the victim is an Indian, the defendant’s Indian status is an affirmative defense that the defendant must prove. We vacate the panel opinions and remand for further proceedings, including possible retrials, consistent with this opinion. 4  Appellate Case: 24-7030 Document: 115-1 Date Filed: 10/14/2026 Page: 5 I. BACKGROUND A. Federal Criminal Cases in Indian Country General Crimes Act – 18 U.S.C § 1152 Under the General Crimes Act, “the general laws of the United States as to the punishment of offenses committed in any place within the sole and exclusive jurisdiction of the United States . . . shall extend to the Indian country.” 18 U.S.C. § 1152; see Oklahoma v. Castro-Huerta, 597 U.S. 629, 639 (2022). 3 The statute carves out three exceptions: This section shall not extend [(1)] to offenses committed by one Indian against the person or property of another Indian, [(2)] nor to any Indian committing any offense in the Indian country who has been punished by the local law of the tribe, [(3)] or to any case where, by treaty stipulations, the exclusive jurisdiction over such offenses is or may be secured to the Indian tribes respectively. 18 U.S.C. § 1152. A nineteenth-century predecessor to § 1152, U.S. Rev. Stat. § 2145, similarly “extend[ed] to the Indian country” “the general laws of the United States as to the punishment of crimes committed in any place within the sole and exclusive jurisdiction of the United States.” See also United States v. Smith, 178 F.4th 572, 594 (10th Cir. 2026). A separate provision outlined the same exceptions as those in 3 “‘Indian country’ is defined in 18 U.S.C. § 1151 to encompass all land within any Indian reservation under federal jurisdiction, all dependent Indian communities, and all Indian allotments, the Indian titles to which have not been extinguished.” United States v. Bryant, 579 U.S. 140, 143 n.1 (2016). 5  Appellate Case: 24-7030 Document: 115-1 Date Filed: 10/14/2026 Page: 6 the current version of § 1152. See U.S. Rev. Stat. § 2146; see also Ex parte Crow Dog, 109 U.S. 556, 558 (1883). In 1882, the Supreme Court held that states have exclusive jurisdiction to prosecute crimes committed in Indian country by a non-Indian against a non-Indian. United States v. McBratney, 104 U.S. 621, 621-24 (1882); see Draper v. United States, 164 U.S. 240 (1896). The Court said, “in effect, that the organization and admission of States qualified the former Federal jurisdiction over Indian country included therein by withdrawing from the United States and conferring upon the States the control of offenses” between non-Indians. Donnelly v. United States, 228 U.S. 243, 271 (1913). In light of the statutory exception for crimes committed between Indians and the states’ exclusive jurisdiction to prosecute crimes committed by non-Indians against non-Indians in Indian country, § 1152 applies federal enclave criminal law to Indian-country crimes only when the defendant is a non-Indian and the victim is an Indian, or vice versa. United States v. Walker, 85 F.4th 973, 979 (10th Cir. 2023). 4 4 As the Fifth Circuit recognized, The McBratney rule is a judicially-created exception that did not turn on the language of § 1152 or its predecessor statutes or treaties . . . . As a practical matter, the McBratney rule combined with the intra-Indian exception of § 1152 will often determine which sovereign (federal, state, or tribal) may prosecute criminal offenses occurring in Indian country, turning on the respective Indian/non- Indian statuses of the defendant and victim. But while the McBratney rule may have the effect of limiting the practical scope of § 1152 (the text of which does not 6  Appellate Case: 24-7030 Document: 115-1 Date Filed: 10/14/2026 Page: 7 In 2022, in Oklahoma v. Castro-Huerta, the Supreme Court held that “the Federal Government and the State have concurrent jurisdiction to prosecute crimes committed by non-Indians against Indians in Indian country.” 597 U.S. at 633. The Court relied on the plain text of § 1152, which it said “simply ‘extend[s]’ federal law to Indian country,” but does not “say that Indian country is equivalent to a federal enclave for jurisdictional purposes,” “that federal jurisdiction is exclusive in Indian country, or that state jurisdiction is preempted.” Id. at 639. The General Crimes Act therefore did not disturb “the background principle of state jurisdiction over crimes committed within the State, including in Indian country.” Id. Major Crimes Act – 18 U.S.C § 1153 In 1883, the Supreme Court interpreted the exceptions provision in § 1152 to mean that the federal government could not prosecute the murder of one Indian by another in Indian country. Crow Dog, 109 U.S. at 558-59. In 1885, “[i]n response, and ‘in order to curb a perceived lawlessness resulting from the Crow Dog decision, Congress passed the . . . Major Crimes Act, 18 U.S.C. § 1153.’” United States v. foreclose the federal prosecution of purely non-Indian offenses in Indian country), it does not bear on our interpretation of the text of § 1152 as a matter of statutory construction. United States v. Haggerty, 997 F.3d 292, 298 n.7 (5th Cir. 2021) (citations and quotations omitted). 7  Appellate Case: 24-7030 Document: 115-1 Date Filed: 10/14/2026 Page: 8 Brice, 167 F.4th 1330, 1336 (11th Cir. 2026) (quoting United States v. Wadena, 152 F.3d 831, 840 (8th Cir. 1998)). 5 Under the Act, “[a]ny Indian who commits against the person or property of another Indian or other person” certain enumerated offenses “shall be subject to the same law and penalties as all other persons committing [the same offense], within the exclusive jurisdiction of the United States.” 18 U.S.C. § 1153(a); see Castro-Huerta, 597 U.S. at 641. In United States v. Kagama, 118 U.S. 375 (1886), the Supreme Court upheld the Major Crimes Act against a challenge to its validity, locating the constitutional authority to promulgate the Act in the “duty of protection” that the federal government owes to the Indian tribes. Id. at 383-85. The Court has often called Congress’s power to legislate on Indian affairs “plenary.” E.g., United States v. Lara, 541 U.S. 193, 200 (2004). B. Determining Indian Status “The one point that emerges with clarity from this otherwise bewildering maze of rules is that the question of who is an Indian bears significant legal consequences.” United States v. Bruce, 394 F.3d 1215, 1222 (9th Cir. 2005). Although “Indian” is not defined in the relevant criminal statutes, a generally accepted test for Indian 5 See also United States v. Wheeler, 435 U.S. 313, 332 n.34 (1978) (“Traditional tribal justice tends to be informal and consensual rather than adjudicative, and often emphasizes restitution rather than punishment.”). Under the Indian Civil Rights Act (“ICRA”), tribal courts may generally impose a maximum of a $5,000 fine and one year of imprisonment for any crime. 25 U.S.C. § 1302(a)(7)(B). 8  Appellate Case: 24-7030 Document: 115-1 Date Filed: 10/14/2026 Page: 9 status derives from the Supreme Court’s opinion in United States v. Rogers, 45 U.S. (4 How.) 567, 573 (1846). To be an Indian under §§ 1152 or 1153, a person must (1) have “some Indian blood” and (2) be “recognized as an Indian by a tribe or by the federal government.” Prentiss III, 273 F.3d at 1280 (quotations omitted). “A person satisfies the definition only if both parts are met . . . .” United States v. Diaz, 679 F.3d 1183, 1187 (10th Cir. 2012). “A person has ‘some Indian blood’ if he has ‘Indian ancestors.’” United States v. King, 172 F.4th 1188, 1193 (10th Cir. 2026) (quoting Diaz, 679 F.3d at 1187-88). We have identified several nonexclusive factors to determine whether a tribe or the federal government recognizes someone as an Indian: “(1) enrollment in a tribe, (2) provision of government assistance reserved only for Indians, (3) enjoying the benefits of tribal affiliation, and (4) social recognition as an Indian through living on a reservation and participating in Indian social life.” Id. (quotations omitted). C. United States v. Prentiss The Tenth Circuit’s current treatment of Indian and non-Indian status in § 1152 prosecutions arose from the 1997 arson prosecution of Ricco Prentiss. He was charged with setting fire to the home of a tribal member on the Tesuque Indian Pueblo in Indian country and was convicted of arson in Indian country under 18 U.S.C. §§ 81 and 1152. Prentiss I, 206 F.3d at 962-63. On appeal, Mr. Prentiss argued that the government’s “indictment was insufficient because it failed to allege his Indian or non-Indian status and the Indian or non-Indian status of the victim” and 9  Appellate Case: 24-7030 Document: 115-1 Date Filed: 10/14/2026 Page: 10 that “there was insufficient evidence in this case to support his conviction because the government failed to prove the Indian or non-Indian status of the defendant or victim.” Id. at 962. A divided panel vacated the conviction, holding the “indictment was insufficient because it failed to allege the Indian or non-Indian status of the defendant and victim, essential elements of a conviction” under § 1152. Id. This court granted rehearing en banc to determine “whether the Indian/non- Indian statuses of the victim and the defendant constitute elements of the crime” in a § 1152 prosecution. Prentiss II, 256 F.3d at 972. The en banc court produced two majority opinions written by Judge Henry and Judge Baldock. Judge Henry and Judge Baldock each dissented from the other’s majority opinion. Judge Henry’s Majority Decision Judge Henry’s majority opinion held that “the Indian/non-Indian statuses of the victim and the defendant are essential elements of [a] crime” under § 1152, which the government must prove beyond a reasonable doubt. Id. at 980; see Walker, 85 F.4th at 979. a. Victim’s status To conclude that a victim’s Indian/non-Indian status is an essential element of the offense, we relied on two Supreme Court decisions. Prentiss II, 256 F.3d at 975. We said that in Lucas v. United States, 163 U.S. 612 (1896), “the government alleged in the indictment that the victim was a non-Indian and offered evidence at trial to support that allegation.” Prentiss II, 256 F.3d at 975. We noted the Court “held that the trial judge erred by instructing the jury that it could presume that the victim was 10  Appellate Case: 24-7030 Document: 115-1 Date Filed: 10/14/2026 Page: 11 not an Indian because he was ‘a man who is a negro by blood,’” reasoning “that ‘the status of the deceased [was] a question of fact, to be determined by the evidence’ and that ‘[t]he burden of proof was on the government to sustain the jurisdiction of the court by evidence as to the status of the deceased.’” Id. (quoting Lucas, 163 U.S. at 616-17). 6 Turning to Famous Smith v. United States, 151 U.S. 50 (1894), a prosecution under § 1152’s predecessor statute, we said “the Court characterized the victim’s status as ‘a fact which the government was bound to establish.’” Id. at 975 (quoting Famous Smith, 151 U.S. at 55). Because “[i]n neither Lucas nor [Famous] Smith was there any suggestion that the defendant had the burden of pleading the status of the victim, offering evidence of that status, or persuading the factfinder,” we concluded that “when the decisions refer to the prosecution’s obligation to prove the victim’s status, they cannot reasonably be read as describing the rebuttal of an affirmative defense.” Id. at 975- 76. 7 6 Reliance on Lucas in Prentiss II was likely misplaced. Lucas did not interpret § 1152 or its predecessor statutes, but rather considered the exclusive jurisdiction granted to tribal courts by the Act of May 2, 1890. 163 U.S. at 614-15. 7 We also pointed to Ninth and Seventh Circuit decisions concluding that a victim’s Indian/non-Indian status is an essential element of the offense. In Hilderbrand v. United States, 261 F.2d 354 (9th Cir. 1958), the court granted a defendant’s 28 U.S.C. § 2255 motion to vacate a judgment “because the indictment alleged that he committed a murder on an Indian reservation but did not allege the status of either the victim or the defendant.” Prentiss II, 256 F.3d at 976 (citing Hilderbrand, 261 F.2d at 356). And in United States v. Torres, 733 F.2d 449 (7th Cir. 1984), the court said that “[f]or purposes of 18 U.S.C. § 1152, the Government had to prove not only that [the defendants] were Indians but also that the victim . . . was a non-Indian.” Id. at 457. 11  Appellate Case: 24-7030 Document: 115-1 Date Filed: 10/14/2026 Page: 12 Finally, we said that “the policies of protecting state and tribal sovereignty support the view that the status of the victim is an element” and that “[i]mposing the burden of alleging the status of the victim on the government rather than the defendant . . . comports with the usual practice in criminal prosecution.” Id. at 976- 77. b. Defendant’s status We acknowledged that “[a]llocating the burden of alleging the status of the defendant presents a closer question” and pointed out that because the defendant’s Indian status was not at issue in Lucas and Famous Smith, “the Supreme Court did not discuss the burden of alleging that issue.” Id. at 977. We nevertheless concluded that the defendant’s Indian status should not be treated differently from the victim’s. Id. at 978. We said “the status of the defendant may be just as significant in determining whether a federal court has jurisdiction over the crime” under § 1152 “as the status of the victim.” Id. And “unlike other instances in which courts have imposed upon the defendant the initial burden of pleading an issue, it is feasible for the government to allege the status of the defendant.” Id. c. Elements versus affirmative defenses Judge Henry’s majority opinion then further addressed why the victim’s and defendant’s statuses should be elements rather than affirmative defenses “that a defendant must raise in the first instance.” Id. (quotations omitted). We noted the dissent’s reliance on the following passage from McKelvey v. United States, 260 U.S. 353 (1922), to conclude a defendant’s Indian status is an affirmative defense: 12  Appellate Case: 24-7030 Document: 115-1 Date Filed: 10/14/2026 Page: 13 [A]n indictment . . . founded on a general provision defining the elements of an offense, or of a right conferred, need not negative . . . an exception made by a proviso or other distinct clause, whether in the same section or elsewhere, and that it is incumbent on one who relies on such an exception to set it up and establish it. Id. at 357. 8 We said this principle should not apply to Indian status under § 1152 because, in United States v. Cook, 84 U.S. (17 Wall.) 168 (1872), the Supreme Court said that some “exceptions” are “so incorporated with the language defining the offence that the ingredients of the offence cannot be accurately and clearly described if the exception is omitted,” so the government must allege them in the indictment. Prentiss II, 256 F.3d at 979 (quoting Cook, 84 U.S. (17 Wall.) at 173-74, and adding emphasis). We said that “[t]he interpretive principle set forth in Cook applies to” the defendant’s and victim’s statuses under § 1152 because the “majority of [§ 1152] court decisions assess the statuses of the victim and the defendant” and because “[s]cholars agree that consideration of the status of the victim and the defendant is a fundamental part of the jurisdictional inquiry.” Id. at 979-80. 9 8 When we decided Prentiss II, the Ninth Circuit treated a defendant’s Indian status as an affirmative defense for which the defendant bears the burden of production in § 1152 prosecutions where the victim is an Indian. United States v. Hester, 719 F.2d 1041 (9th Cir. 1983). The Ninth Circuit relied on McKelvey to hold that “the Government need not allege the non-Indian status of the defendant in an indictment under section 1152, nor does it have the burden of going forward on that issue.” Id. at 1042-43. 9 In 2021, the Fifth Circuit adopted the same approach as Hester. In United States v. Haggerty, the court considered and rejected the argument that Cook’s 13  Appellate Case: 24-7030 Document: 115-1 Date Filed: 10/14/2026 Page: 14 We therefore held that “the Indian/non-Indian statuses of the victim and the defendant are essential elements” in a § 1152 prosecution and “[t]he government must allege them in the indictment.” Id. at 980. 10 d. Judge Baldock’s dissent Judge Baldock dissented from the court’s determination that Indian statuses of the defendant and victim are essential elements under § 1152. Id. at 985 (Baldock, J., dissenting). He noted that “§ 1152 extends the criminal jurisdiction of the federal courts provided for in 18 U.S.C. § 3231 to federal enclave crimes occurring within Indian country” and that “[n]o one disputes that under § 1152 an element of the crime . . . which the Government must allege is that it occurred in Indian country.” Id. at 987. But he asserted that “nothing prohibits Congress from setting forth in the same statute fact-based exceptions to the statute’s criminal element based on notions of Indian sovereignty which . . . a defendant must initially raise as a bar to suit.” Id. Judge Baldock disagreed with the majority that Lucas and Famous Smith require “that the Government has the burden of proving the Indian/non–Indian statuses of a defendant and victim under § 1152.” Id. He said those cases dealt with the burden of persuasion and did not address “the pleading issue before the en banc exception should supplant McKelvey’s general rule. 997 F.3d 292, 299-301 (5th Cir. 2021). 10 Although, as noted above, § 1152 includes three exceptions, we held that only the first exception for crimes between Indians is “so closely intertwined with the definition of the offense” that its negation is an “essential element[] of the crime.” Prentiss II, 256 F.3d at 979-80. 14  Appellate Case: 24-7030 Document: 115-1 Date Filed: 10/14/2026 Page: 15 Court.” Id. And he suggested that “[n]othing is unusual about requiring the prosecution to disprove a defense, even beyond a reasonable doubt, once a defendant has come forward with some evidence as to the presence of the defense.” Id. Judge Baldock would have relied on McKelvey to conclude that under § 1152, the three exceptions outlined in § 1152’s second paragraph should be affirmative defenses for which the defendant should bear the burden of production. Id. at 988. He rejected the majority’s “claim[] that the ingredients of the offence cannot be accurately and clearly described if the [intra-Indian] exception is omitted,” contending this “simply begs the question of what ‘ingredients’ constitute the offense.” Id. (quotations omitted). 11 Judge Baldock’s Majority Opinion Judge Baldock, writing for a different majority, addressed “the issue of whether the indictment’s failure to allege the Indian/non-Indian statuses of” the defendant and victim “deprived the district court of subject matter jurisdiction, or instead, is subject to harmless error review.” Id. at 981. We rejected Mr. Prentiss’s argument that diversity of Indian status confers subject matter jurisdiction on the federal court, stating that “[a]n indictment’s failure to allege an element of a crime ‘is not jurisdictional in the sense that it affects a court’s subject matter jurisdiction, i.e., 11 Judge Baldock also took issue with the majority’s reliance on McBratney to conclude that diversity of Indian status is an essential element under § 1152. Prentiss II, 256 F.3d at 988-89 (Baldock, J., dissenting). He said, “The Court in McBratney did not even purport to construe the applicable statute and its ruling finds no basis whatsoever in the language of § 1152 or its predecessor acts.” Id. at 989. 15  Appellate Case: 24-7030 Document: 115-1 Date Filed: 10/14/2026 Page: 16 a court’s constitutional or statutory power to adjudicate a case.” Id. at 982 (quoting United States v. Martin, 147 F.3d 529, 532 (7th Cir. 1998)). Thus, “the Government’s failure to allege the Indian/non-Indian statuses of Defendant and his victim in the indictment did not deprive the district court of subject matter jurisdiction to hear the case.” Id. We therefore concluded that the failure to allege these elements is subject to harmless-error review. Id. at 984. 12 Judge Henry dissented on this point, stating that failure to allege “an essential element of § 1152” is a “jurisdictional defect” and therefore not “subject to harmless error analysis.” Id. at 989-91 (quotations omitted). D. Case Histories United States v. Hebert “After Mr. Hebert argued with his wife in Texas, his stepdaughter, Kara Byers, invited him to live with her on the Choctaw Nation reservation in Oklahoma in a house she occupied with another woman and several young children.” United States v. Hebert, 159 F.4th 777, 781 (10th Cir. 2025). “Within two days of Mr. Hebert’s moving in, he sexually assaulted a six-year-old boy inside the home.” Id. The United States charged Mr. Hebert with one count of aggravated sexual abuse in Indian country under 18 U.S.C. §§ 1151, 1152, 2241(c), and 2246(2)(A). Id. On remand, the original Prentiss panel concluded that the indictment’s 12 failure to allege the Indian/non-Indian statuses of the victim and the defendant was not harmless and vacated Mr. Prentiss’s conviction. Prentiss III, 273 F.3d at 1278. 16  Appellate Case: 24-7030 Document: 115-1 Date Filed: 10/14/2026 Page: 17 The government filed a superseding indictment alleging the victim was an Indian and Mr. Hebert was a non-Indian. Id. At trial, the government relied on the testimony of four witnesses to prove Mr. Hebert’s non-Indian status: stepdaughter Byers, Choctaw Nation Tribal Police investigator Dakota Grantham, Deputy U.S. Marshal Chad Sensor, and FBI Special Agent Paul Sparke. Id. at 781-82. Ms. Byers testified that, to her knowledge, Mr. Hebert was not a member of any Indian tribe, that he never mentioned being Indian, and that he, at “[o]ne time,” identified himself as “part Mexican.” Id. Investigator Grantham, who interviewed Mr. Hebert the day of the offense, “testified that (1) he did not recall if he asked Mr. Hebert whether he was a member of any Indian tribe and (2) when he asked about race, Mr. Hebert said he was ‘Latino, Hispanic.’” Id. at 782. He further testified that Mr. Hebert never voluntarily self- identified as Indian or Native American. Id. Agent Sensor, who arrested and booked Mr. Hebert, also testified that Mr. Hebert never voluntarily self-identified as Native American. Id. Special Agent Sparke, who investigated Mr. Hebert’s case, testified that he reached out to the five major Oklahoma Indian tribes and did not receive any information indicating that Mr. Hebert was an Indian. Id. At the close of the government’s evidence, Mr. Hebert moved for a judgment of acquittal under Federal Rule of Criminal Procedure 29. Id. The district court denied the motion. Id. Mr. Hebert was found guilty and sentenced to 30 years in prison followed by a lifetime of supervised release. Id. at 783. 17  Appellate Case: 24-7030 Document: 115-1 Date Filed: 10/14/2026 Page: 18 On appeal, Mr. Hebert argued that the government introduced insufficient evidence to prove he was a non-Indian. Id. We agreed, concluding that no reasonable jury could find the government met its burden of proving Mr. Hebert was not an Indian beyond a reasonable doubt. Id. at 786. We said “the sparse evidence” showing “(1) Ms. Byers lived with Mr. Hebert only briefly and lacked awareness of his being a member of or affiliated with any tribe; (2) Mr. Hebert did not racially identify as an Indian; and (3) he did not spontaneously incriminate himself to law enforcement by stating whether he was an Indian” was “hardly enough to be ‘firmly convinced’ that Mr. Hebert was not an Indian and far short of ‘substantial.’” Id. at 789 (quoting United States v. Erickson, 561 F.3d 1150, 1158-59 (10th Cir. 2009)). We therefore vacated Mr. Hebert’s conviction. Id. at 790. In doing so, we recognized “the Government’s potentially difficult task to prove a negative” beyond a reasonable doubt, especially because the information bearing on a defendant’s non-Indian status “is more likely in possession of the defendant.” Id. at 786. We further noted that “(1) apart from Indian status, no one contested that Mr. Hebert committed the charged offense; (2) Mr. Hebert would be guilty under § 1152 as a non-Indian and under § 1153 as an Indian; (3) two circuits allocate the burden of production on non-Indian status to the defendant, see United States v. Haggerty, 997 F.3d 292, 302 (5th Cir. 2021); United States v. Hester, 719 F.2d [1041,] 1043 (9th Cir. 1983); and (4) the leading Indian law treatise favors that approach, Cohen’s Handbook of Federal Indian Law § 11.02[1][b][iii] (Nell Jessup Newton & Kevin K. Washburn eds., 2024).” Hebert, 159 F.4th at 790 n.12. 18  Appellate Case: 24-7030 Document: 115-1 Date Filed: 10/14/2026 Page: 19 United States v. Ruiz Two children, one aged six or seven and the other three or four, reported that Mr. Ruiz lured them into his trailer with candy and abused them. United States v. Ruiz, 164 F.4th 1223, 1225 (10th Cir. 2026). The United States charged Mr. Ruiz with two counts of engaging in a sexual act with a minor under the age of 12 in Indian country under 18 U.S.C. §§ 1151, 1152, 2241(c), and 2246(2)(D). Id. The indictment alleged that the victims were Indians and that Mr. Ruiz was a non-Indian. Id. At trial, the government tried to prove that Mr. Ruiz was not recognized as an Indian by a tribe or the federal government. Id. at 1226. It relied on the testimony of Jicarilla Apache Investigator Rome Wager and FBI Special Agent Piere Robert Himel. Id. at 1227. Investigator Wager testified that he is an enrolled member of the Jicarilla Apache tribe, had lived on the Jicarilla Reservation for 27 years, and that he was familiar with Mr. Ruiz from seeing him on the Reservation where Mr. Ruiz also resided. Id. Investigator Wager said he did not contact any tribes to ask about Mr. Ruiz’s enrollment status, that he learned that Mr. Ruiz was born in Mexico, and that he did not find any information in a national database indicating that Mr. Ruiz was an Indian. Id. Special Agent Himel testified that his practice to determine whether suspects are non-Indian is to ask them whether they are enrolled and query their name with various tribes, but he did not clearly indicate whether he went through that process to determine Mr. Ruiz’s status. Id. He concluded Mr. Ruiz is a non-Indian based on 19  Appellate Case: 24-7030 Document: 115-1 Date Filed: 10/14/2026 Page: 20 documents, which did not affirmatively indicate Mr. Ruiz’s tribal status, as well as Mr. Ruiz’s appearance and Mexican birthplace. Id. After the government concluded its case, Mr. Ruiz moved for a judgment of acquittal under Federal Rule of Criminal Procedure 29 for failure to prove his non- Indian status. Id. at 1225. The court denied the motion. Id. Mr. Ruiz was found guilty of one count of engaging in a sexual act with a minor under the age of twelve and was sentenced to 30 years in prison, followed by 10 years of supervised release. Id. at 1225-26. On appeal, Mr. Ruiz argued that the government’s trial evidence on non-Indian status was insufficient. Id. at 1226. We agreed. First, we said that “the witnesses’ relationship and personal knowledge of [Mr.] Ruiz rest[ed] on a ‘thin foundation,’” noting that “neither witness testified that they knew [Mr.] Ruiz personally, or that they knew that [he] was a non-Indian.” Id. at 1227-28 (quoting Hebert, 159 F.4th at 787). Second, we noted neither witness testified that Mr. Ruiz “ever mentioned that he was a non-Indian,” that they “attempted to contact a family member to gather [Mr.] Ruiz’s ancestry or recognition evidence,” or that they had contacted tribes to check Mr. Ruiz’s enrollment status. Id. at 1228. Third, we pointed out that the national databases that did not indicate Mr. Ruiz’s Indian status would “not have information on whether an individual is an enrolled member of a tribe.” Id. Finally, we said the witnesses’ conclusion that Mr. Ruiz was non-Indian because he was born in Mexico was erroneous because race and Indian status are distinct. Id. 20  Appellate Case: 24-7030 Document: 115-1 Date Filed: 10/14/2026 Page: 21 We therefore concluded that the Government’s evidence was insufficient to prove Mr. Ruiz’s non-Indian status beyond a reasonable doubt and vacated Mr. Ruiz’s conviction. Id. We noted the “unrealistic” burden of proving non-Indian status beyond a reasonable doubt but said that the panel was bound by Prentiss II “unless and until” the en banc court revisits that case. Id. at 1230-31. We suggested that as a matter of statutory interpretation and practicality, non-Indian status in a § 1152 prosecution should be an affirmative defense and called on the court “to reexamine and correct our current caselaw on the issue.” Id. at 1229-31. * * * * In addition to sufficiency of the evidence, Mr. Hebert and Mr. Ruiz raised other issues on appeal, which the panels did not address. II. DISCUSSION The following discussion analyzes the four questions we asked the parties to address in our en banc order. A. Indian Status as an Affirmative Defense The main issue before us is whether, in a § 1152 prosecution where the victim is an Indian, (1) a defendant’s non-Indian status an essential element of § 1152 on which the government bears the burden of production, or (2) based on § 1152’s intra- Indian exception, the defendant’s Indian status is an affirmative defense on which the defendant bears the burden of production. Prentiss II chose the former. We choose the latter. 21  Appellate Case: 24-7030 Document: 115-1 Date Filed: 10/14/202