Background
The cases involve appeals from district court judgments in the District of New Mexico and the Eastern District of Oklahoma. The United States filed petitions for rehearing en banc, and the defendants filed responses. The court circulated the filings to all active judges, and a majority voted to rehear the matters.
The court’s reasoning
The court issued a per curiam order granting the petitions for rehearing en banc. The order vacates the court’s November 18, 2025 and January 28, 2026 judgments and stays the issuance of mandates. The court has partially procedurally consolidated the matters for supplemental briefing and oral argument. The court directed the parties to address specific questions regarding the General Crimes Act, including whether non-Indian status is an essential element or an affirmative defense, who bears the ultimate burden of persuasion, and how the Indian canon of statutory interpretation applies.
What it means going forward
The prior panel decisions are vacated, and the cases will be reheard by the full Tenth Circuit. The parties must file supplemental briefs addressing the specific legal questions regarding burden of proof and statutory interpretation before oral argument scheduled for August 17, 2026.
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