Background
These consolidated appeals involve challenges to convictions under the General Crimes Act, 18 U.S.C. Section 1152, specifically concerning the procedural requirements for alleging and proving a defendant’s non-Indian status. The cases were previously decided by a panel of the court, but the government and defendants have filed petitions and responses seeking a full court rehearing.
The court’s reasoning
The court granted the petitions for rehearing en banc because a majority of the active judges voted to rehear the matters. The court directed the parties to address four specific questions in supplemental briefing: whether non-Indian status is an essential element or an affirmative defense, which party bears the ultimate burden of persuasion, how the Indian canon of statutory interpretation applies, and whether remand for retrial is necessary if the burden is placed on the defendant.
What it means going forward
The prior judgments are vacated, and the cases are reopened for full briefing and oral argument before the entire Tenth Circuit. The outcome of this rehearing will establish the controlling precedent for the burden of proof regarding non-Indian status in federal prosecutions within the Tenth Circuit.
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