United States v. Hebert: Proving Non‑Indian Status Beyond a Reasonable Doubt in General Crimes Act Prosecutions

I. Introduction

In United States v. Hebert, No. 24‑7030 (10th Cir. Nov. 18, 2025), the Tenth Circuit vacated a federal conviction for aggravated sexual abuse in Indian country under the General Crimes Act, 18 U.S.C. § 1152, because the Government failed to prove, beyond a reasonable doubt, that the defendant was a non‑Indian.

The decision sits at the intersection of criminal procedure, evidentiary sufficiency, and federal Indian law. It deepens the Tenth Circuit’s line of cases—most notably Prentiss I, Prentiss II, Diaz, Walker, Simpkins, and Hatley—governing how the Government must establish Indian/non‑Indian status to invoke federal jurisdiction in Indian country.

At the same time, Judge Hartz’s concurrence explicitly invites the court to reconsider its en banc holding in Prentiss I that non‑Indian status is an element of a § 1152 offense. Relying on Supreme Court guidance on statutory exceptions and affirmative defenses, he argues that “Indian vs. Indian” exceptions in § 1152 should be treated as affirmative defenses, with the defendant bearing the initial burden of production. This sets the stage for a potential en banc re‑alignment of Tenth Circuit law in future cases.

This commentary:

• Sets out the background facts and procedural posture;
• Summarizes the holding and core reasoning of the majority opinion;
• Analyzes the precedents and doctrinal framework the panel applied;
• Dissects the sufficiency‑of‑the‑evidence analysis on non‑Indian status;
• Explains the concurrence’s call to reclassify non‑Indian status as an affirmative defense; and
• Explores the broader impact on federal prosecutions in Indian country and sufficiency doctrine.

II. Case Overview

A. Parties and Underlying Facts

The United States prosecuted Dennis Hebert, who had recently moved from Texas to live with his adult stepdaughter, Kara Byers, on the Choctaw Nation reservation in Oklahoma. Within two days of moving into her home, Hebert sexually assaulted a six‑year‑old boy in the residence.

The prosecution charged Hebert in federal court with one count of aggravated sexual abuse in Indian country, citing 18 U.S.C. §§ 1151, 1152, 2241(c), and 2246(2)(A). The superseding indictment alleged:

• The victim was an Indian; and
• Hebert was a non‑Indian.

The Government chose to proceed under § 1152 (the General Crimes Act), not § 1153 (the Major Crimes Act), despite the fact that aggravated sexual abuse by an Indian in Indian country is also a federal crime under § 1153.

B. Jurisdictional Background: Why Indian Status Matters

Federal criminal jurisdiction in “Indian country” is governed primarily by two statutes:

1. The General Crimes Act, 18 U.S.C. § 1152
   Extends federal enclave laws to Indian country, with key exceptions. It does not apply to:
   • “Offenses committed by one Indian against the person or property of another Indian”; or
   • Offenses committed by a non‑Indian against a non‑Indian (by longstanding Supreme Court precedent: McBratney).
   Thus, § 1152 applies only in “mixed” cases: Indian defendant/non‑Indian victim or non‑Indian defendant/Indian victim.
2. The Major Crimes Act, 18 U.S.C. § 1153
   Grants federal jurisdiction over certain enumerated serious offenses (including aggravated sexual abuse) when committed by an Indian in Indian country.

Because Hebert was prosecuted under § 1152 for a crime against an Indian victim in Indian country, the Government was required—under Tenth Circuit precedent—to prove that he was a non‑Indian. If he were an Indian, federal jurisdiction would arise under § 1153 instead, but the Government elected to proceed under § 1152 and charged non‑Indian status as part of the offense.

C. Procedural Posture

The case proceeded as follows:

• The superseding indictment alleged the victim was Indian and Hebert was non‑Indian.
• At trial, the Government put on four witnesses and two driver’s license exhibits to establish that Hebert was a non‑Indian.
• Hebert presented no defense evidence.
• After the Government rested, Hebert moved for a judgment of acquittal under Federal Rule of Criminal Procedure 29, specifically challenging the sufficiency of the evidence that he was “not a member of a recognized tribe.”
• The district court denied the motion, stating a reasonable jury could find “each and every element” beyond a reasonable doubt and that the Government had put on enough evidence on the “tough element” of Indian/non‑Indian status.
• The jury was instructed that the Government must prove the victim was an Indian and the defendant a non‑Indian, but received no definition of “Indian” or “non‑Indian.”
• The jury convicted Hebert, and the court imposed a 30‑year prison sentence plus lifetime supervised release.

On appeal, Hebert raised three issues:

1. Insufficiency of the evidence that he was a non‑Indian;
2. Plain error in failing to instruct the jury on the legal definition of “Indian” and “non‑Indian”; and
3. Plain error in permitting the Government to elicit and argue about his failure to state his Indian status, allegedly penalizing his right to remain silent.

The panel resolved the case on the first issue alone, holding the evidence of non‑Indian status insufficient and vacating the conviction with directions to enter a judgment of acquittal. The court therefore did not reach the jury‑instruction and Fifth Amendment issues.

III. Summary of the Holding

A. Core Holding

The Tenth Circuit held:

“To convict under § 1152, our precedent required the prosecution to prove that Mr. Hebert was not an Indian. … It failed to do so beyond a reasonable doubt.”

More specifically, the panel concluded that:

• The Government must prove non‑Indian status (as an element of a § 1152 offense in the Tenth Circuit) by showing:
  • Either that the defendant lacks Indian blood, or
  • That the defendant is not recognized as an Indian by any tribe or by the federal government (the two‑prong Prentiss II test for Indian status, inverted).
• On the evidence presented—one stepdaughter, three law enforcement officers, and two driver’s licenses—no rational jury could find beyond a reasonable doubt that:
  • Hebert has no Indian ancestors (the “Indian blood” prong); or
  • Hebert is not recognized as an Indian by any tribe or by the federal government (the “recognition” prong).
• The Government’s proof consisted largely of:
  • A stepdaughter who merely testified “not that I know of” regarding his tribal membership;
  • Officers who never asked Hebert directly whether he was Indian and who made only limited, geographically narrow inquiries into tribal enrollment; and
  • Race self‑identification as “Latino/Hispanic” and two state driver’s licenses listing race as “white,” which the court held have minimal probative value for Indian status.
• Such evidence invited the jury to speculate or “guess” rather than to be “firmly convinced” of non‑Indian status, falling short of proof beyond a reasonable doubt.

Because the conviction was reversed for evidentiary insufficiency, double jeopardy precludes a federal retrial, and the case was remanded with instructions to enter a judgment of acquittal.

B. Preservation and Standard of Review

The court made two important procedural rulings:

1. Preservation of sufficiency claims. Hebert’s Rule 29 motion, though framed as contesting proof that he was “not a member of a recognized tribe,” preserved broader arguments that the Government failed to prove:
   • He lacked Indian blood; and
   • The probative value of racial identity evidence.
   The district court had itself ruled that the Government put on enough evidence on the “tough element” of “Indian/non‑Indian status” and explicitly held that “a reasonable jury could find each and every element” beyond a reasonable doubt. That broad ruling, combined with the generalized Rule 29 motion, was sufficient to preserve all sufficiency challenges on that element for de novo review.
2. De novo sufficiency review. The appellate court reviewed the sufficiency of the evidence de novo, while:
   • Viewing the evidence in the light most favorable to the Government;
   • Drawing only reasonable and logical inferences—not speculative chains of inference; and
   • Applying the full “beyond a reasonable doubt” standard, with no relaxation merely because the Government was proving a “negative” (non‑Indian status).

IV. Doctrinal and Precedential Framework

A. Defining “Indian” for § 1152 and § 1153: The Prentiss II Test

Prentiss II, 273 F.3d 1277 (10th Cir. 2001), articulated the now‑canonical two‑part test for Indian status under § 1152 and § 1153:

1. Indian blood – the person must have “some Indian blood,” i.e., “Indian ancestors,” generally proven with evidence that a parent, grandparent, or great‑grandparent is clearly identified as Indian.
2. Recognition – the person must be “recognized as an Indian by a tribe or by the federal government.” Courts consider non‑exclusive factors such as:
   • Enrollment in a federally recognized tribe;
   • Receipt of government assistance available only to Indians;
   • Enjoyment of benefits of tribal affiliation (e.g., voting, services); and
   • Social recognition as an Indian (living on a reservation, participating in Indian social life).

Enrollment is sufficient but not necessary. Recognition can be shown even without formal enrollment if the person is functionally treated as a tribal member or recognized by the federal government.

Crucially, the same test can be used in reverse: the Government can prove a person is not an Indian by showing that he fails either prong—either no Indian blood or no recognition. Thus, in a § 1152 prosecution of an alleged non‑Indian defendant, the Government can satisfy its burden by disproving Indian blood, or by disproving tribal/federal recognition, or both.

B. Indian Status as an Element under § 1152: Prentiss I and Walker

In Prentiss I, 256 F.3d 971 (10th Cir. 2001) (en banc), the Tenth Circuit held that under § 1152 the “Indian/non‑Indian statuses of the victim and the defendant are essential elements” of the crime when federal jurisdiction depends on those statuses. This holding was re‑affirmed in:

• United States v. Walker, 85 F.4th 973 (10th Cir. 2023);
• United States v. Simpkins, 90 F.4th 1312 (10th Cir. 2024), which reversed a sexual abuse conviction for insufficient proof that the defendant was a non‑Indian; and
• United States v. Hebert, the present case.

Because Hebert was prosecuted under § 1152, and the victim was conceded to be Indian, the Government had to prove that Hebert was not Indian to satisfy this element of the offense. That proof had to meet the “beyond a reasonable doubt” standard, like any other element.

C. Timing of Recognition: Hatley

The panel noted, but did not decide, whether Hatley’s timing requirement for recognition applies in § 1152 cases. In United States v. Hatley, 153 F.4th 1112 (10th Cir. 2025), a § 1153 case, the Tenth Circuit held that:

“[W]hen proving a defendant's Indian status, the government can only satisfy the second prong of the Prentiss II test by proving beyond a reasonable doubt that the defendant was recognized as an Indian at the time of the charged offense.”

Hebert acknowledges that this rationale may be relevant for § 1152 prosecutions as well, but expressly leaves that question open because the court finds the evidence insufficient to show that Hebert was a non‑Indian at any time, not just at the time of the offense.

D. Sufficiency of the Evidence: Jackson, Musacchio, and Tenth Circuit Elaboration

The panel’s sufficiency analysis rests solidly on established doctrine:

• Jackson v. Virginia, 443 U.S. 307 (1979): A conviction violates due process if, after viewing the evidence in the light most favorable to the prosecution, no rational trier of fact could have found the essential elements beyond a reasonable doubt.
• Musacchio v. United States, 577 U.S. 237 (2016): Sufficiency review is based on the statutory elements, assuming a properly instructed jury; it does not turn on how the jury was actually instructed.

The Tenth Circuit adds its own gloss, reiterating:

• The appellate court must account for the burden of proof in sufficiency analysis. It is not enough that “some evidence” supports guilt; a rational jury must be able to find each element beyond a reasonable doubt. (Rufai).
• The evidence supporting conviction must be “substantial,” not a thin web of speculation. (Erickson).
• The Government is entitled only to inferences that “reasonably and logically” flow from the evidence, not every conceivable inference. (Santistevan).
• Courts may not uphold a conviction by “piling inference upon inference” such that the jury is engaged in speculation or guesswork. (Anderson, Jones, Goldesberry).

The panel emphasizes that the “beyond a reasonable doubt” standard does not bend simply because a particular fact is difficult to prove, such as a negative (non‑Indian status).

E. Preservation of Sufficiency Arguments: Murphy and Dermen

The opinion draws on recent Tenth Circuit decisions to define how sufficiency arguments are preserved:

• Rule 29 preserves broad sufficiency challenges.
  A generalized Rule 29 motion suffices to preserve more specific sufficiency arguments on appeal, as long as the defendant has not affirmatively limited the grounds for review. See United States v. Murphy, 100 F.4th 1184 (10th Cir. 2024); United States v. Dermen, 143 F.4th 1148 (10th Cir. 2025).
• District court’s own reasoning matters.
  When a district court “sua sponte raises and explicitly resolves an issue of law on the merits,” a defendant may challenge that ruling on appeal even if the defendant did not articulate that precise theory below. (Hernandez‑Rodriguez, Lowe).

Applied here, even though defense counsel’s Rule 29 motion mentioned only the lack of proof that Hebert was “not a member of a recognized tribe,” the district court clearly addressed the sufficiency of proof on “Indian/non‑Indian status” overall and its ruling that a reasonable jury could find “each and every element” supported de novo review of all facets of the non‑Indian‑status element.

V. The Court’s Legal Reasoning

A. The Critical Question

The key question was narrow but legally demanding:

Could any rational jury, properly instructed on the Prentiss II definition of Indian status, and viewing the trial evidence in the light most favorable to the Government, find beyond a reasonable doubt that Hebert was a non‑Indian?

To answer that, the court separately analyzed:

1. Evidence (or the lack thereof) regarding Indian blood; and
2. Evidence regarding tribal or federal recognition as an Indian.

B. Indian Blood: Complete Absence of Supporting Evidence

On the “Indian blood” prong, the record contained no genealogical, DNA, or ancestral evidence of any kind. The Government did not:

• Call any family member (other than the stepdaughter) to testify regarding family history;
• Offer documentary evidence (birth records, tribal enrollment records, etc.); or
• Present expert testimony about Hebert’s ancestry.

In Diaz, which upheld a finding that the victim was a non‑Indian, the Government had far more robust evidence: the victim’s father testified that he conducted extensive family history research back several centuries and concluded there was no Indian ancestry; he also testified the son had no tribal enrollment or affiliation.

By contrast, in Hebert:

• Hebert’s stepdaughter acknowledged that he once identified as “part Mexican”; and
• He described himself to an investigator as “Latino, Hispanic,” while two driver’s licenses described him as “white.”

The panel emphasized that race or ethnicity (e.g., “white,” “Hispanic,” “Mexican”) is distinct from tribal/federal recognition of Indian status—and even from blood ancestry:

• One can be both Hispanic and Native American;
• State racial categories on driver’s licenses are crude proxies and may not even offer “Native American” as a category; and
• Self‑identification as “part Mexican” says nothing reliable about whether one has Indian ancestors (many people with Mexican heritage have Indigenous ancestry; many do not).

Accordingly, the court held that a rational jury could not find beyond a reasonable doubt that Hebert lacked Indian ancestors. On this prong, the Government’s evidentiary showing was essentially zero.

C. Recognition: Thin, Indirect, and Speculative Proof

The recognition prong fared little better. The Government attempted to show that Hebert was not recognized as an Indian by:

1. Testimony from his stepdaughter, Kara Byers;
2. Testimony from three law enforcement officers; and
3. Contact with five “major” Oklahoma tribes regarding enrollment.

1. Stepdaughter’s Testimony

The Government’s theory was that a family member’s testimony, based on personal knowledge, can suffice to show non‑Indian status. In principle, that position is consistent with Diaz, where a father’s detailed testimony was pivotal. But the court carefully parsed what Byers actually said and, equally important, what she did not say.

Key points of her testimony:

• She is Hebert’s stepdaughter; he is married to her biological mother.
• She had known him “a very long time,” and he had helped her with bills and children since she was an adult.
• They spoke “regularly” around the time he moved into her home, but the Government did not explore frequency, duration, or subject matter of their contact in depth.
• She had never previously lived with him until the short period before the offense.
• When asked:
  • “Is he a member of any Indian tribe?” she responded: “Not that I know of, no.”
  • “Did he ever mention to you being an Indian?” she responded: “No, never.”
  • “Do you know what race or races he self‑identified as?” she responded: “One time, I think, part Mexican.”

The panel stressed the equivocal nature of this testimony. Byers did not say:

• “He is not a tribal member,” or
• “He is not an Indian,” or
• “He has no tribal affiliation or benefits.”

Instead, she repeatedly signaled limited knowledge:

• “Not that I know of” (regarding tribal membership);
• “One time, I think, part Mexican” (equivocal recollection of racial self‑identification).

Nor did the Government probe whether she was aware of any:

• Government assistance Hebert might have received as an Indian;
• Participation in tribal elections, services, or social life;
• Residence in Indian communities at other times in his life; or
• Statements by Hebert about enrollment, blood quantum, or tribal affiliation to other family members.

Against this background, the panel held that a rational jury could not infer beyond a reasonable doubt that Hebert was a non‑Indian merely from:

• Byers’s lack of knowledge about his enrollment;
• Her statement that he never mentioned being Indian to her; and
• Her recollection that he once claimed to be “part Mexican.”

At most, such evidence suggests a possibility; it does not allow the level of “utmost certainty” demanded by the reasonable‑doubt standard.

2. Law Enforcement Testimony and Silence

The law enforcement officers added very little:

• Investigator Grantham (Choctaw Nation Tribal Police):
  • Read Hebert his Miranda rights and obtained a waiver.
  • Did not recall asking Hebert whether he was a member of any Indian tribe.
  • Reported that when asked about race, Hebert said he was “Latino, Hispanic.”
  • Believed, but was not sure, that he contacted the five major Oklahoma tribes to check on tribal membership; obtained no documentary confirmation.
  • Testified that Hebert did not volunteer that he was Indian or Native American.
• Agent Sensor (then–Deputy U.S. Marshal):
  • Arrested and booked Hebert.
  • Did not ask about Indian status.
  • Testified that Hebert never identified himself as Native American during their interactions.
• Special Agent Sparke (FBI):
  • Testified that he contacted the five “major” Oklahoma tribes, which yielded no information indicating Hebert was an Indian.
  • Authenticated Hebert’s Alabama and Florida driver’s licenses listing race as “W” (white) but did not know how race options were presented in those states or whether multiple races could be selected.

The panel’s key points:

• Silence post‑Miranda is “insolubly ambiguous.”
  The court invoked Doyle v. Ohio, 426 U.S. 610 (1976), which held that post‑Miranda silence is “insolubly ambiguous” because a suspect may be simply exercising the right to remain silent. Here, stating either “I am Indian” or “I am not Indian” would have been incriminating under federal law—triggering either § 1152 or § 1153. Thus, Hebert’s failure to volunteer Indian status to law enforcement carries very little probative weight.
• Limited tribal checks are incomplete and inconclusive.
  Contacting only five Oklahoma tribes—out of 37 federally recognized tribes in Oklahoma and 574 nationwide—produced no affirmative evidence of non‑recognition. At most it showed that the Government did not find enrollment records in those five tribes, not that Hebert was nowhere recognized as Indian.
• Race labels do not equal Indian status.
  Race codes such as “W” on a driver’s license, or self‑identifying as “Latino/Hispanic,” do not meaningfully show whether a person is tribally recognized as an Indian.

All told, the law enforcement testimony was too fragmentary and indirect to establish that Hebert lacked recognition as an Indian.

D. Proving a Negative vs. The Burden of Proof

The panel explicitly confronted the Government’s argument that proving non‑Indian status is exceptionally difficult—especially for an “itinerant with no close personal ties,” as Judge Hartz later put it in concurrence. The majority acknowledged that:

• “It is never easy to prove a negative” (citing Elkins);
• Doing so beyond a reasonable doubt is “a very heavy burden” (Frigillana); and
• Information about Indian status is often more readily available to the defendant than to the prosecution (citing New Haven & Hartford R.R. and Hester).

Nonetheless, the panel refused to dilute the standard:

“[W]e have found no authority holding that an appellate court reviewing the sufficiency of evidence may water down the reasonable doubt standard because a particular fact is hard to prove. To convict under § 1152, our precedent required the prosecution to prove that Mr. Hebert was not an Indian. … It failed to do so beyond a reasonable doubt.”

In other words, practical difficulty does not authorize a lower evidentiary bar. If the Government chooses to prosecute under a statute that makes a particular status an element, it must prove that status to the constitutionally required standard—or accept the risk of acquittal.

E. Remedy: Judgment of Acquittal and Future Prosecution in Other Sovereigns

Because the reversal was for insufficiency of the evidence—not trial error—the Double Jeopardy Clause prohibits retrial in federal court. Citing United States v. Wheeler, 776 F.3d 736 (10th Cir. 2015), the panel remanded with instructions to enter a judgment of acquittal.

The court noted, however, that:

• Oklahoma may still prosecute Hebert in state court (subject to Castro‑Huerta, which recognizes concurrent state and federal jurisdiction for crimes by non‑Indians against Indians in Indian country), and
• A tribal prosecution may also be possible, depending on jurisdictional and statutory constraints (Wheeler, 435 U.S. 313 (1978), recognizes separate tribal and federal sovereignty for double‑jeopardy purposes).

VI. Judge Hartz’s Concurrence: Non‑Indian Status as an Affirmative Defense

A. The Concurrence’s Thesis

Judge Hartz “concur[red] fully” in the panel opinion but wrote separately to urge the court to reconsider en banc its holding in Prentiss I that non‑Indian status is an element of a § 1152 offense. In his view:

“Under principles of common sense, statutory interpretation, and Indian law, non‑Indian status should be an affirmative defense. As a result, Defendant Hebert should have to make a showing of his status as an Indian before the government has to rebut that proposition beyond a reasonable doubt.”

B. Common‑Sense Concerns

Judge Hartz emphasizes the impracticality of requiring the Government to prove a global negative: that the defendant is not an Indian anywhere among the hundreds of federally recognized tribes. By contrast, if the defendant is an Indian, producing some objective evidence of tribal membership or recognition is comparatively easy:

• Enrollment card or records;
• Certification from a tribe;
• Historical evidence of tribal participation or benefits.

Thus, from a “common sense” perspective, requiring the defendant to raise Indian status as an affirmative defense is far more efficient and realistic.

C. Statutory Interpretation: Section 1152 and Exceptions

Judge Hartz grounds his argument in the structure of § 1152. The first paragraph extends general federal criminal laws to Indian country. The second paragraph then carves out exceptions, including “offenses committed by one Indian against the person or property of another Indian.”

He relies on the Supreme Court’s general rule about statutory exceptions, as recently reaffirmed in Cunningham v. Cornell University, 145 S. Ct. 1020 (2025):

“[W]hen a statute has exemptions laid out apart from the prohibitions, and the exemptions expressly refer to the prohibited conduct as such, the exemptions ordinarily constitute affirmative defenses that are entirely the responsibility of the party raising them.”

In the criminal context, McKelvey v. United States, 260 U.S. 353 (1922), established that an indictment based on a general provision “need not negative the matter of an exception made by a proviso or other distinct clause” and that “it is incumbent on one who relies on such an exception to set it up and establish it.”

On that model, § 1152’s “Indian‑versus‑Indian” exception would ordinarily be treated as an affirmative defense: the Government would not have to negate it in the indictment or in its case‑in‑chief; the defendant would raise and support it. Once raised, the Government would still bear the ultimate burden of persuasion to disprove the defense beyond a reasonable doubt if it negates an element (per Unser and related cases).

D. Indian Law Perspective: Aligning with Hester, Haggerty, and Cohen’s Handbook

Judge Hartz notes that other authorities in Indian law have long taken the position that non‑Indian status need not be pled and proven by the Government:

• United States v. Hester, 719 F.2d 1041 (9th Cir. 1983) (Judge William C. Canby Jr.):
  Held 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.” It is “far more manageable for the defendant to shoulder the burden of producing evidence” of tribal membership than for the Government to show the absence of membership in “hundreds of such tribes.”
• United States v. Haggerty, 997 F.3d 292 (5th Cir. 2021):
  Similarly treats § 1152’s Indian‑versus‑Indian exception as an affirmative defense rather than an element of the offense, reading McKelvey as directly applicable.
• Cohen’s Handbook of Federal Indian Law § 11.02[1][b][iii] (2024):
  Endorses the affirmative‑defense approach:

  “[I]t is sensible to require the defendant to invoke the exception to [§ 1152] for Indian‑versus‑Indian offenses. … [I]n a nation with well over 570 federally recognized Indian tribal nations … it would be difficult to require the government to prove that the defendant is not a member of any of them, absent some evidence that the question is contested by the defendant.”

Judge Hartz concludes that Prentiss I was “an unfortunate misstep” and urges the court to correct it en banc.

E. Note on Preservation Doctrine

Judge Hartz also briefly comments that the court’s generous preservation doctrine for sufficiency claims (Rule 29 plus broad district‑court ruling) is justified because, unlike most errors, insufficiency is not something that can be “cured” at trial once the jury is discharged. The criminal rules explicitly permit post‑verdict Rule 29 motions, so rigid preservation requirements serve less purpose in this context.

VII. Complex Concepts Simplified

A. “Indian” vs. Race or Ethnicity

In federal Indian law, “Indian” is primarily a political and legal classification, not merely a racial or ethnic one. It turns on:

• Ancestry (“some Indian blood,” i.e., Indian ancestors); and
• Recognition by a tribe or the federal government.

Someone may be racially “white” or “Hispanic” for census or licensing purposes yet still be an Indian under federal law if they have Indian ancestry and are recognized by a tribe. Conversely, a person who identifies as racially “Native American” but has no recognized tribal or federal link may not qualify as “Indian” for jurisdictional purposes.

B. Elements vs. Affirmative Defenses

Elements of a crime are the basic building blocks the prosecution must prove beyond a reasonable doubt: act, mental state, jurisdictional facts, status, etc. If an element is not proven, the defendant is entitled to acquittal.

An affirmative defense is a legal excuse or exception that the defendant must raise and support with some evidence. Once raised, the prosecution usually bears the burden of disproving it beyond a reasonable doubt if it negates an element (in criminal cases).

In the context of § 1152:

• The Prentiss I line of cases treats non‑Indian status as an element; the Government must plead and prove it.
• Hester, Haggerty, and Cohen’s Handbook treat “Indian versus Indian” as an exception (an affirmative defense), which the defendant must raise with some evidence of being an Indian.

Hebert continues to apply the Prentiss I regime but highlights, through the concurrence, the tension with the other approach.

C. Proving a “Negative”

Proving a “negative” fact (such as “X never occurred” or “Y does not exist”) is often practically difficult because it can require ruling out a broad range of possibilities. In Indian country prosecutions:

• To prove non‑Indian status, the Government might theoretically need to negate recognition by hundreds of tribes and decades of possible residence and affiliation.
• By contrast, proving that someone is an Indian often involves relatively accessible, concrete evidence (enrollment records, tribal certifications, etc.).

Hebert acknowledges this difficulty but insists that the difficulty does not change the constitutional standard of proof. The hardness of the task does not reduce the burden of proof imposed by due process.

D. Sufficiency of the Evidence vs. Weight of the Evidence

A sufficiency challenge asks whether the evidence, taken in the light most favorable to the prosecution, could support a conviction as a matter of law. If no rational jury could find the element proven beyond a reasonable doubt, the conviction must be reversed and acquittal entered.

This is distinct from a “weight of the evidence” challenge (which concerns whether the verdict is against the overall weight of the evidence), typically addressed through motions for a new trial in the district court. The appellate court in a sufficiency review does not re‑weigh evidence or assess credibility anew; it assesses only whether the evidence and reasonable inferences reach the legal threshold.

E. Double Jeopardy and Reversal for Insufficiency

If a conviction is reversed because of trial error (e.g., incorrect jury instructions, improper admission of evidence), the Government often may retry the case because it has not had a full and fair opportunity to present its evidence under correct procedures.

But if a conviction is reversed for insufficiency of the evidence, double jeopardy bars retrial. The rationale is that the Government has already received “one full and fair opportunity” to prove its case and failed; it does not get a second chance to marshal better evidence.

Hebert falls into the latter category. Hence the remand for entry of a judgment of acquittal, not for a new trial.

VIII. Impact and Implications

A. Immediate Practical Impact in the Tenth Circuit

Hebert significantly raises the practical bar for federal prosecutors in § 1152 cases within the Tenth Circuit, especially in the wake of McGirt and the recognition of large swaths of eastern Oklahoma as Indian country:

• Evidence of non‑Indian status must be robust.
  In “mixed” cases (Indian victim or defendant), prosecutors will need more than:
  • Family members testifying “not that I know of” about tribal membership;
  • Limited tribal queries focused on a handful of tribes; and
  • Racial labels on driver’s licenses or casual self‑identification.
• Investigations should broaden and deepen. Reasonable steps may include:
  • Contacting tribes associated with the defendant’s places of residence (not just the reservation where the offense occurred);
  • Securing genealogical or familial history testimony, akin to Diaz (from parents, grandparents, siblings);
  • Documenting any absence of tribal enrollment through official certifications where practicable; and
  • Exploring whether the defendant has ever received Indian‑only benefits or participated in tribal affairs.
• Charging decisions may shift. Prosecutors may reassess whether to:
  • Charge under § 1153 rather than § 1152 when there is uncertainty about the defendant’s Indian status;
  • Coordinate closely with state counterparts, especially under Castro‑Huerta, to ensure that serious offenses do not fall into a jurisdictional gap;
  • Consider tribal prosecution in appropriate cases.

B. Doctrinal Continuity with Simpkins and Walker

Hebert is not an outlier; it consolidates a doctrinal trend:

• Walker (2023) re‑emphasized that Indian/non‑Indian statuses are essential elements under § 1152.
• Simpkins (2024) reversed a § 1152 conviction for insufficient proof of non‑Indian status in another sex‑offense case, strongly foreshadowing Hebert.
• Hatley (2025) added the temporal requirement for recognition in § 1153 prosecutions.

Viewed together, these cases show the Tenth Circuit is rigorously policing the jurisdictional predicates in Indian country cases and demanding that the Government meet the full burden of proof on status elements.

C. Pressure Toward En Banc Reconsideration of Prentiss I

The concurrence, combined with the panel’s acknowledgment in footnote 12 of the Government’s criticism of Prentiss I, increases the likelihood that the Tenth Circuit may revisit the classification of non‑Indian status in an en banc proceeding. Points pushing in that direction include:

• The practical “proving a negative” problem highlighted by Hebert and Simpkins;
• Alignment with the Ninth and Fifth Circuits (Hester and Haggerty);
• Supreme Court guidance on statutory exceptions and affirmative defenses (McKelvey, Cunningham); and
• Authoritative secondary sources (Cohen’s Handbook) endorsing a defendant‑burden/affirmative‑defense model.

Any en banc shift would not retroactively affect Hebert, but it could fundamentally reshape future § 1152 prosecutions by:

• Requiring defendants to produce some evidence of Indian status to trigger the exception; and
• Alleviating the Government’s burden to negate non‑Indian status at the outset in every case.

D. Broader Criminal‑Procedure Significance

Beyond Indian law, Hebert is noteworthy in several respects:

• Reinforcement of the reasonable‑doubt standard in sufficiency review.
  The opinion underscores that courts must factor in the Government’s burden of proof when assessing sufficiency; mere plausibility or “more likely than not” is not enough.
• Limits on reliance on silence.
  The court’s dismissal of the probative value of Hebert’s silence post‑Miranda reinforces Doyle’s caution against drawing adverse inferences from silence and may be cited in future sufficiency and evidentiary disputes involving post‑Miranda statements (or lack thereof) about status or identity.
• Generous preservation doctrine for sufficiency claims.
  By treating generalized Rule 29 motions and broad district‑court findings as preserving a wide range of sufficiency arguments, the Tenth Circuit confirms a relatively defendant‑friendly approach to appellate review of sufficiency.

IX. Conclusion

United States v. Hebert is a consequential decision in the Tenth Circuit’s ongoing effort to define and enforce jurisdictional predicates in Indian country prosecutions. Building on Prentiss, Diaz, Walker, and Simpkins, the court holds that:

• Non‑Indian status is an essential element of a § 1152 offense, at least under current Tenth Circuit law;
• The Government must prove that element beyond a reasonable doubt, by showing either no Indian blood or no tribal/federal recognition;
• Evidence consisting of a stepdaughter’s limited awareness, thin tribal queries, racial labels, and the defendant’s silence is insufficient to meet that burden; and
• Difficulty in proving a negative does not permit the court to relax the constitutional standard of proof.

Judge Hartz’s concurrence, relying on Supreme Court precedent and leading Indian law authorities, articulates a powerful doctrinal case for revisiting the en banc decision in Prentiss I and reclassifying the Indian‑vs‑Indian exception in § 1152 as an affirmative defense. While that question remains unresolved in the Tenth Circuit, Hebert both highlights the pressures that led other circuits to adopt the affirmative‑defense model and demonstrates the real consequences of the current element‑based approach: where the Government fails to present substantial, non‑speculative evidence of non‑Indian status, the result must be acquittal.

For practitioners, Hebert sends a clear message: in General Crimes Act prosecutions where jurisdiction turns on Indian/non‑Indian status, that status cannot be treated as a formality. It is a demanding element requiring careful investigation, thoughtful charging decisions, and robust evidentiary support. Until and unless the Tenth Circuit revisits Prentiss I en banc, Hebert stands as a strong reaffirmation of that principle.

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This commentary is for informational and educational purposes only and does not constitute legal advice.