Timing Matters: Tenth Circuit Requires Proof of Indian Status as of the Offense Date under the Major Crimes Act

Case: United States v. Hatley, No. 23-7046 (10th Cir. Sept. 5, 2025) (Eid, J.)

Introduction

This precedential decision clarifies a pivotal jurisdictional element in federal prosecutions arising in Indian country. The Tenth Circuit holds, for the first time in a published opinion, that the government must prove the defendant’s Indian status as of the time of the charged offense to invoke federal jurisdiction under the Major Crimes Act (18 U.S.C. § 1153). The court also reinforces strict evidentiary requirements for proving Indian status, rejecting litigation-prepared tribal “verification” letters and derivative custodian testimony lacking personal knowledge.

The case stems from a fatal 2017 vehicular collision on a state highway within the Chickasaw Nation Reservation near Ada, Oklahoma. Defendant-Appellant Lloyd Ray Hatley was charged federally with multiple counts, including two counts of involuntary manslaughter in Indian country. The jury acquitted him of driving-under-the-influence-related counts and one manslaughter count, but convicted on Count 4—an involuntary manslaughter theory premised on failing to devote full time and attention to driving, and alternatively, committing a lawful act in an unlawful manner. Because prosecutions under § 1153 require the government to prove that the defendant is an “Indian,” the government introduced: (1) an unsigned tribal verification letter from the Cherokee Nation Attorney General’s Office; (2) testimony from the Cherokee Nation’s interim Tribal Registrar and records custodian; (3) a heavily redacted 2020 state-court filing in which Hatley described himself as a Cherokee citizen; and (4) Hatley’s own trial testimony that he is a Cherokee Nation member with Cherokee blood.

On appeal, Hatley challenged, among other things, the admission of the verification letter and the custodian’s testimony. The Tenth Circuit resolved the appeal on these evidentiary questions and the element of timing, reversing the conviction and remanding with instructions to vacate.

Summary of the Judgment

New rule in the Tenth Circuit: To establish federal jurisdiction under § 1153, the government must prove beyond a reasonable doubt that the defendant was recognized as an Indian at the time of the offense, not merely at some other point in time.
Evidentiary rulings reversed: The district court abused its discretion in admitting (i) an unsigned tribal verification letter prepared for litigation, and (ii) the tribal custodian’s testimony that merely parroted the letter’s contents without independent personal knowledge.
Harmless error rejected: Excluding the inadmissible letter and derivative testimony, the remaining evidence (a redacted 2020 filing and Hatley’s general admission of membership at trial) did not establish Indian status as of February 22, 2017. The government failed to show the evidentiary errors did not substantially influence the verdict.
Disposition: Conviction on Count 4 reversed and remanded with instructions to vacate; other appellate issues (e.g., Count 4’s validity and jury-instruction challenges) not reached.

Analysis

I. Statutory and Doctrinal Framework

Two federal enclave statutes define criminal jurisdiction in Indian country:

General Crimes Act (18 U.S.C. § 1152): Extends federal criminal law to Indian country, but exempts offenses by one Indian against another, which tribes generally retain jurisdiction over.
Major Crimes Act (18 U.S.C. § 1153): Carves back federal jurisdiction for enumerated offenses (including manslaughter) committed by “Any Indian” in Indian country, whether the victim is Indian or not.

In the Tenth Circuit, Indian status follows the two-part test from Prentiss II: (1) the defendant has some Indian blood; and (2) the defendant is recognized as an Indian by a federally recognized tribe or by the federal government. Until Hatley, the Tenth Circuit had not squarely decided whether the recognition prong must be satisfied at the time of the offense.

II. Precedents Cited and How They Shaped the Result

United States v. Prentiss (Prentiss I and Prentiss II): Established the two-part test (some Indian blood; recognition by tribe or federal government). Hatley reaffirms this test but adds the critical timing requirement.
United States v. Wood (10th Cir. 2024): Approved jury instructions referencing recognition “at the time of the offense” and cautioned the government against conflating harmless-error review with sufficiency of the evidence. Hatley builds on both observations.
United States v. Zepeda (9th Cir. 2015) (en banc): Held the government must prove the defendant was an Indian at the time of the offense. The Tenth Circuit expressly aligns with Zepeda’s rationale, citing fair notice and due process concerns.
United States v. Rogers (1846): The Supreme Court’s foundational Indian status case. Rogers implies timing matters and that adoption alone (without Indian blood) is insufficient; it also suggests criminal responsibility turns on the defendant’s status “at the time of the commission” of the crime—logic echoed in Hatley.
Negonsott v. Samuels (1993): Describes the division of federal and tribal authority in Indian country; supports the broader jurisdictional structure that makes Indian status an essential element.
Lamy (10th Cir. 2008) and Neha (10th Cir. 2008) (unpublished): Address the “Indian country” location element as measured at the time of the offense; Hatley analogizes this timing principle to Indian status.
Harper (10th Cir. 2024) and Walker (10th Cir. 2023): Key evidentiary decisions. Walker recognizes CDIB cards as self-authenticating under Rule 902(1). Harper rejects the admission of litigation-prepared tribal verification letters under Rule 803(6) and bars custodian testimony lacking personal knowledge that merely recites a hearsay document’s contents.
Apprendi v. New Jersey (2000): Cited by Zepeda for fair notice principles—the defendant should be able to predict the consequences of a crime when acting; Hatley adopts the same concern.
Keck, Chavez, Batton, McFadden: Supply the standards for abuse-of-discretion review and harmless error, and emphasize that legal error is an abuse of discretion per se.

III. The Court’s Legal Reasoning

A. Timing Requirement for Indian Status under § 1153

Textual anchor: § 1153 applies to “Any Indian who commits” an enumerated offense. The court reads this to require that the person be an Indian at the moment the offense is committed.
Structural support: § 1153(b) ties punishment to state law “in force at the time of such offense,” reinforcing temporal specificity throughout the statute.
Fair notice and due process: Echoing Zepeda and Apprendi, the court reasons that if status could be proved without regard to timing, defendants could neither predict federal jurisdiction at the moment of action nor prevent jurisdiction from “vanishing” through later disassociation.
Doctrinal fit: The court’s approach harmonizes with long-standing Supreme Court treatment (Rogers) and Tenth Circuit practice requiring other § 1153 elements (like Indian country location) to be measured at the time of the offense.

B. Proving Indian Status: What Evidence Works—and What Does Not

CDIB Cards: Certificates of Degree of Indian Blood, bearing a U.S. Department of the Interior seal and signature, are self-authenticating under Rule 902(1) and are a reliable way to establish Indian blood and (depending on the card’s content) federal recognition.
Tribal Records: Can be admissible if properly authenticated and admitted under a hearsay exception. The usual route is the business records exception (Rule 803(6)), requiring proof that the record was made in the regular course of the tribe’s business, at or near the events recorded, by someone with knowledge or a duty to transmit information, and that it is trustworthy.
Custodian Testimony: A records custodian or qualified witness may lay the Rule 803(6) foundation, but cannot testify to the truth of the record’s contents without independent personal knowledge. Rule 602 bars testimony that merely parrots a hearsay document’s subject matter. The business record should ordinarily be introduced itself; testimony is no substitute for an inadmissible document.
Litigation-Prepared Letters: Verification letters created for courtroom use (particularly if unsigned or prepared in response to a “legal team” request) are not ordinary business records and are inadmissible hearsay. A witness who learned the facts only by reading such a letter lacks the personal knowledge Rule 602 requires.

C. Harmless Error: The Correct Lens

Distinct from sufficiency review: The court reiterates that non-constitutional harmless error asks whether the inadmissible evidence substantially influenced the verdict or leaves the court in “grave doubt,” not whether the remaining admissible evidence would be sufficient in isolation.
Government’s burden: The government must show, by a preponderance, that the error did not affect substantial rights. Arguing that other evidence could have supported the verdict conflates sufficiency with harmlessness, a misstep the court again rejects (see Wood).

IV. Application to Hatley

Verification Letter: Unsigned, created for litigation, and admitted over foundation and hearsay objections. Under Harper, its admission was error.
Custodian Testimony: The interim Tribal Registrar lacked independent personal knowledge; his testimony was derivative of the inadmissible letter. He initially guessed the enrollment date (2013) before “refreshing” with the letter to state 1984—nearly a 30-year discrepancy undermining credibility and personal knowledge. Admitting this testimony was error.
Defendant’s Admission: Hatley testified at trial that he is a Cherokee Nation member with Cherokee blood, but no one asked about his status as of February 22, 2017. Given the five-year gap, the jury had no admissible basis to link his status at trial to his status on the offense date.
State-Court Filing: A 2020 filing (heavily redacted) said Hatley “is a citizen” of the Cherokee Nation. Filed three years after the crash and stripped of context, it did not allow a reasonable inference about his status on the offense date.
Harmless Error: Considering the record as a whole and the government’s burden, the Tenth Circuit had grave doubt that the inadmissible letter and testimony did not influence the verdict on the essential Indian-status element. The error was not harmless.

V. Impact and Forward-Looking Consequences

Binding Tenth Circuit precedent: Prosecutors must now prove—and juries must be instructed to find—that the defendant was an Indian at the time of the offense for § 1153 prosecutions. Boilerplate instructions stating only that the defendant “is an Indian” are no longer adequate.
Evidentiary rigor: Litigation-prepared tribal “verification” letters will not suffice. The government should obtain admissible business records (e.g., enrollment records, membership rosters, issued tribal ID cards) made and kept in the regular course, supported by a custodian with personal knowledge of recordkeeping and preferably the underlying enrollment facts. Alternatively, use CDIB cards or properly certified business records.
Trial strategy shifts:
- Prosecutors: Plan early to secure time-stamped proof (e.g., enrollment established before the offense date) and prepare custodians who can testify to both the recordkeeping system and facts not derived solely from litigation letters.
- Defense: Challenge foundational elements (authentication, hearsay exceptions, personal knowledge) and insist on time-of-offense proof. Consider stipulations where appropriate to avoid prejudicial spillover.
- District courts: Tailor instructions to the offense-date requirement, conduct pretrial admissibility/Rule 104 hearings for Indian-status proof, and be alert to Rule 803(6) and Rule 602 pitfalls.
Ripple effects:
- Pending appeals: Convictions resting on generalized Indian-status proof without temporal linkage could face reversal on direct review.
- Tribal recordkeeping: Tribal registrars may revisit how membership and enrollment records are maintained, certified, and presented to courts, including adopting certifications consistent with Rule 902(11) for business-records self-authentication.
- Plea negotiations: The heightened proof requirement may influence charging and plea dynamics in Indian country prosecutions.
Continuity and disenrollment: The opinion implies that status changes after the offense do not alter jurisdiction. Conversely, post-offense enrollment cannot retroactively confer § 1153 jurisdiction for earlier conduct.

Complex Concepts Simplified

Indian country (18 U.S.C. § 1151): Includes reservations and other designated lands; determines where special federal-tribal-state jurisdictional rules apply.
General Crimes Act (18 U.S.C. § 1152): Extends federal criminal law into Indian country but not to Indian-on-Indian crimes (those are generally tribal, unless § 1153 applies).
Major Crimes Act (18 U.S.C. § 1153): Gives federal courts jurisdiction over certain serious offenses committed by Indians in Indian country; “Indian status” is an element the government must prove.
Indian status (Prentiss test): Two parts—(1) some Indian blood; and (2) recognition as an Indian by a tribe or by the federal government. After Hatley, the recognition must be shown as of the offense date.
CDIB card: A federal document certifying a person’s degree of Indian blood, typically self-authenticating under Rule 902(1) due to the Interior Department seal and signature.
Business records exception (Rule 803(6)): Allows admission of records made in the regular course of an organization’s activities, close in time to the event, by someone with knowledge; requires trustworthiness. Litigation-created documents typically do not qualify.
Personal knowledge (Rule 602): A witness may testify only to matters the witness has personally perceived; reading a hearsay document does not supply personal knowledge of the document’s subject matter.
Self-authentication (Rule 902): Certain documents (e.g., those bearing the seal of a U.S. agency) are admissible without extrinsic evidence of authenticity. Many tribal records are not self-authenticating and need a proper foundation.
Harmless error vs. sufficiency: Harmless error asks whether the error likely influenced the jury’s decision; sufficiency asks whether the total admitted evidence could support a guilty verdict. They are different tests.
Involuntary manslaughter (18 U.S.C. § 1112): Unlawful killing without malice in certain circumstances; in federal prosecutions it demands proof of gross negligence—more than mere carelessness—amounting to wanton or reckless disregard for human life.

Practical Guidance and Checklists

For Prosecutors

Prove timing expressly: Ensure at least one piece of admissible evidence ties recognition to the offense date (e.g., enrollment effective before the offense, continuous membership spanning the offense date, or federal recognition in place at that time).
Use robust documents: Prefer CDIB cards (Rule 902(1)) and genuine tribal business records made in the ordinary course (not for litigation), admitted via:
- Custodian testimony satisfying Rule 803(6), or
- Rule 902(11) certifications that lay the 803(6) foundation without live testimony.
Prepare witnesses: Custodians should explain recordkeeping practices and, where appropriate, have independent knowledge of the enrollment facts beyond reading a litigation-prepared letter.
Ask the right questions: When defendants testify or stipulate, elicit clarity about status as of the offense date.
Closing arguments: Explicitly connect the evidence to the offense date to help the jury apply the timing requirement.

For Defense Counsel

Press timing: Object to instructions that omit “at the time of the offense” and to evidence that does not tie recognition to the offense date.
Challenge hearsay and foundation: Oppose litigation-prepared verification letters and derivative testimony lacking Rule 602 personal knowledge or Rule 803(6) foundation.
Exploit inconsistencies: Highlight gaps, redactions, and date discrepancies to create reasonable doubt on the jurisdictional element.

For Tribal Records Offices

Record integrity: Maintain enrollment records as business records made and kept in the regular course; avoid creating litigation-specific letters where possible.
Certifications: Consider Rule 902(11) compliant certifications for domestic records of regularly conducted activity, which can simplify admissibility.
Training: Ensure custodians understand courtroom foundations (803(6), 902, 602) and the importance of independent knowledge where feasible.

For Trial Judges

Jury instructions: Incorporate the offense-date requirement for the recognition prong of Indian status in § 1153 cases.
Gatekeeping: Use Rule 104(a) hearings to resolve admissibility of tribal records and custodian testimony before trial.
Harmless-error awareness: Maintain the distinction between harmless-error analysis and sufficiency of the evidence to ensure proper appellate posture.

Open Questions and Limits

Forms of “recognition”: The Tenth Circuit continues to describe the second Prentiss prong as “recognition by a tribe or by the federal government,” which can include, but is not limited to, formal enrollment. The contours of non-enrollment “recognition” remain fact-sensitive.
Scope of retroactivity: Hatley governs pending and future cases in the Tenth Circuit, particularly on direct review. Collateral attacks will confront separate retroactivity and procedural default rules.
Disenrollment/enrollment changes: Hatley strongly suggests that post-offense status changes do not alter jurisdiction for completed offenses; but unique fact patterns may test the boundaries (e.g., long periods of informal affiliation).
Other issues not resolved: The panel left open challenges to Count 4’s validity (void-for-vagueness and particularity) and to the jury instructions on gross negligence and knowledge. Those legal questions may resurface in subsequent proceedings or other cases.

Conclusion

United States v. Hatley establishes a clear, administrable rule in the Tenth Circuit: the government must prove that a defendant was recognized as an Indian at the time of the offense to secure a conviction under the Major Crimes Act. The decision also serves as a rigorous reminder that jurisdictional elements are proved with admissible evidence, not litigation-prepared letters or custodian testimony devoid of personal knowledge. By aligning with the Ninth Circuit’s Zepeda and grounding its analysis in statutory text, fair notice, and evidentiary law (Rules 803(6), 902, and 602), the court both clarifies doctrine and recalibrates practice in Indian country prosecutions.

The immediate takeaway is practical: prosecutors must assemble time-linked, properly authenticated proof of Indian status; defense counsel should scrutinize foundation and timing; tribal records offices should optimize business-records compliance; and district courts should instruct and gatekeep accordingly. Beyond Hatley, this framework promises greater consistency, fairness, and predictability in a complex but vital jurisdictional domain at the intersection of federal criminal law and tribal sovereignty.