                FOR PUBLICATION

  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA ,                No. 10-10131
                Plaintiff-Appellee,
                                             D.C. No.
                 v.                       2:08-cr-01329-
                                              ROS-1
DAMIEN ZEPEDA ,
            Defendant-Appellant.            OPINION


     Appeal from the United States District Court
              for the District of Arizona
    Roslyn O. Silver, Chief District Judge, Presiding

                 Argued and Submitted
       July 17, 2012—San Francisco, California

                 Filed January 18, 2013

   Before: Ferdinand F. Fernandez, Richard A. Paez,
         and Paul J. Watford, Circuit Judges.

                Opinion by Judge Paez;
               Dissent by Judge Watford
2                  UNITED STATES V . ZEPEDA

                           SUMMARY*


                           Criminal Law

    The panel reversed jury convictions under the Major
Crimes Act, 18 U.S.C. § 1153, which provides for federal
jurisdiction over certain crimes committed by Indians in
Indian country.

    The panel held that whether a given tribe is federally
recognized, as required for jurisdiction under § 1153, is a
question of fact for the jury, not a question of law for the
court; and rejected the government’s request that this court
take judicial notice of the Bureau of Indian Affairs’s list of
federally recognized tribes in 2008 and 2010.

    The panel held that a Certificate of Enrollment in an
Indian tribe, entered into evidence through the parties’
stipulation, is insufficient evidence for a rational juror to find
beyond a reasonable doubt that a defendant is an Indian for
purposes of § 1153, where the government offers no evidence
that the defendant’s bloodline is derived from a federally
recognized tribe.

    Dissenting, Judge Watford would hold that federal
recognition of an Indian tribe is a question of law for the
court to resolve.




  *
    This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
                    UNITED STATES V . ZEPEDA                              3

                              COUNSEL

Joan G. Ruffennach, Assistant United States Attorney, Office
of the United States Attorney, Phoenix, Arizona, for Plaintiff-
Appellee.

Michele R. Moretti, Law Office of Michele R. Moretti, Lake
Butler, Florida, for Defendant-Appellant.



                               OPINION

PAEZ, Circuit Judge:

    On October 25, 2008, Damien Zepeda (“Zepeda”)
traveled with his brothers Jeremy and Matthew Zepeda
(“Matthew”) to the home of Dallas Peters (“Peters”), located
on the Ak–Chin Reservation of Arizona. Zepeda and
Matthew opened fire upon the house’s occupants, injuring
Peters severely. In a nine-count indictment, the government
charged Zepeda with, inter alia, conspiracy to commit
assault, assault with a deadly weapon, and use of a firearm
during a crime of violence.1 The indictment alleged that


  1
     The nine counts included: (1) conspiracy to commit assault with a
dangerous weapon and assault resulting in serious bodily injury, in
violation of 18 U.S.C. §§ 1153, 371, and 2; (2) assault resulting in serious
bodily injury against Dallas Peters, in violation of 18 U.S.C. §§ 1153,
113(a)(6) and 2; (3) use of a firearm during a crime of violence as charged
in count 2, in violation of 18 U.S.C. §§ 924(c)(1)(A) and 2; (4), (6), (8)
assault with a dangerous weapon against Dallas Peters, Stephanie Aviles,
and Jane Doe, in violation of 18 U.S.C. §§ 1153, 113(a)(3), and 2; and,
(5), (7), (9) use of a firearm during the crimes of violence charged in
counts 4, 6, and 8, in violation of 18 U.S.C. §§ 924(c)(1)(A) and 2. Aviles
4                        UNITED STATES V . ZEPEDA

Zepeda was an “Indian[].” Following a jury trial, Zepeda was
convicted of all counts.

    The Major Crimes Act, 18 U.S.C. § 1153, provides for
federal jurisdiction for certain crimes committed by Indians
in Indian country.2 The statute does not define who is an
Indian, and determining the proper boundaries of federal
jurisdiction over Indians is a formidable task. It is now well-
settled in this circuit that we apply the two-part test
articulated in United States v. Bruce, 394 F.3d 1215 (9th Cir.
2005) to determine who is an Indian. We consider: (1) the
defendant’s degree of Indian blood, and (2) the defendant’s
tribal or government recognition as an Indian. Id. at 1223;
United States v. Cruz, 554 F.3d 840, 845 (9th Cir. 2009).
More recently, we clarified that the first of these two prongs
requires that the defendant’s “bloodline be derived from a
federally recognized tribe.”3 United States v. Maggi,
598 F.3d 1073, 1080 (9th Cir. 2010).

    This appeal calls upon us to decide whether a Certificate
of Enrollment in an Indian tribe, entered into evidence
through the parties’ stipulation, is sufficient evidence for a
rational juror to find beyond a reasonable doubt that the
defendant is an Indian for the purposes of § 1153 where the
government offers no evidence that the defendant’s bloodline


was Zepeda’s ex-girlfriend and Doe was Aviles’s cousin. Both were
present at the Peters residence on the night of the shooting.

        2
       Although we are mindful that the term “Native American” or
“American Indian” may be preferable, we use the term “Indian”
throughout this opinion since that is the term used in 18 U.S.C. § 1153 and
at issue in this appeal.

    3
        In this opinion, we consider the first prong only.
                   UNITED STATES V . ZEPEDA                           5

is derived from a federally recognized tribe. We hold that it
is not.

                                   I.

    At Zepeda’s trial, the government introduced into
evidence a document entitled “Gila River Enrollment/Census
Office Certified Degree of Indian Blood.”4 The document
bore an “official seal” and stated that Zepeda was “an
enrolled member of the Gila River Indian Community,” and
that “information [wa]s taken from the official records and
membership roll of the Gila River Indian Community.” It
also stated that Zepeda had a “Blood Degree” of “1/4 Pima
[and] 1/4 Tohono O’Odham” for a total of ½. The Certificate
was signed by “Sheila Flores,” an “Enrollment Services
Processor.” The prosecutor and Zepeda’s attorney stipulated
to admission of the Certificate into evidence without
objection.5 Their stipulation stated: “The parties have
conferred and have agreed that Exhibit 1[, the Tribal
Enrollment Certificate,] . . . may be presented at trial without
objection and [its] contents are stipulated to as fact.”

    The Tribal Enrollment Certificate was published to the
jury through the testimony of Detective Sylvia Soliz, a
detective for the Ak–Chin Police Department, who told the
jury that she obtained the Certificate from the Gila River
Indian Community in advance of trial, “confirming” that



  4
   For the purposes of clarity, we refer to this document as the “Tribal
Enrollment Certificate” or “Certificate” throughout.

   5
     The stipulation, which was signed by counsel, was admitted into
evidence as Exhibit 48.
6               UNITED STATES V . ZEPEDA

Zepeda was an enrolled member. The colloquy between
Soliz and the prosecutor proceeded as follows:

       Q: [W]e’ve talked a little bit about Native
       Americans and Indian blood and that sort of
       thing. Is this a jurisdictional requirement that
       you have? Explain that for the jury.

       A: Yes, it is. I am only able to investigate if
       the witness would come to a federal status and
       the victim was an enrolled member of a tribe
       or – and if it occurred on the reservation
       boundaries.

       ...

       Q: You talked about a certification of Indian
       blood. What is that?

       A: It’s a piece of paper confirming through
       the tribe that you obtained from the
       enrollment office that confirms that this
       person is an enrolled member of their tribe
       and he[,] and they[,] do meet the blood
       quantum.

       Q: And is that sometimes used in determining
       whether that person might be able to receive
       tribal benefits from the tribe?

       A: Yes, it does.

   Zepeda’s brother Matthew also testified regarding
Zepeda’s Indian status. Matthew testified that he was half
                      UNITED STATES V . ZEPEDA                                 7

“Native American,” from the “Pima and Tiho” tribes, and that
his Indian heritage came from his father. He also testified
that he and Zepeda shared the same father, as well as the
same mother, who was “Mexican.”

    No further evidence regarding Zepeda’s Indian status was
admitted. At the close of the government’s case in chief,
Zepeda moved for a judgment of acquittal under Federal Rule
of Criminal Procedure 29, arguing that insufficient evidence
supported his convictions.6 The court denied his motion.
Zepeda renewed his motion at the close of the evidence, and
again, his motion was denied.

    On appeal, Zepeda argues, inter alia, that the government
failed to prove beyond a reasonable doubt that he was an
Indian under § 1153. We agree.

                                      II.

    Indian “tribes generally have exclusive jurisdiction over
crimes committed by Indians against Indians in Indian
country.”7 United States v. LaBuff, 658 F.3d 873, 876 (9th

 6
   W e note that although Zepeda did not present argument to the district
court regarding the sufficiency of the evidence of his Indian status, “Rule
29 motions for acquittal do not need to state the grounds upon which they
are based because ‘the very nature of such motions is to question the
sufficiency of the evidence to support a conviction.’” United States v.
Viayra, 365 F.3d 790, 793 (9th Cir. 2004) (quoting United States v.
Gjurashaj, 706 F.2d 395, 399 (2d Cir. 1983)).

 7
    “[T]he term ‘Indian country’ . . . means (a) all land within the limits of
any Indian reservation under the jurisdiction of the United States
Government . . . (b) all dependent Indian communities within the borders
of the United States whether within the original or subsequently acquired
territory thereof . . . and (c) all Indian allotments, the Indian titles to which
8                       UNITED STATES V . ZEPEDA

Cir. 2011). As we explained in United States v. Begay,
42 F.3d 486 (9th Cir. 1994):

             Indian tribes are recognized as
             quasi-sovereign entities that may regulate
             their own affairs except where Congress has
             modified or abrogated that power by treaty or
             statute.    Courts have also recognized,
             however, that regulation of criminal activity
             in Indian country is one area where competing
             federal interests may override tribal interests.

Id. at 498.

    To balance the sovereignty interest of Indian tribes and
the United States’s interest in punishing offenses committed
in Indian country, Congress enacted two statutes, 18 U.S.C.
§§ 1152 and 1153. Id. Section 1152, the General Crimes
Act,8 grants federal jurisdiction over certain crimes


have not been extinguished, including rights-of-way running through the
same.” 18 U.S.C. § 1151.

    8
        Section 1152 provides that:

             Except as otherwise expressly provided by law, 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, except the
             District of Columbia, shall extend to the Indian country.

             This section shall not extend to offenses committed by
             one Indian against the person or property of another
             Indian, nor to any Indian committing any offense in the
             Indian country who has been punished by the local law
             of the tribe, or to any case where, by treaty stipulations,
                     UNITED STATES V . ZEPEDA                          9

committed by non-Indians against Indians in Indian country,
but excludes crimes committed by one Indian against another.
Id.; LaBuff, 658 F.3d at 876. Section 1153, the Major Crimes
Act,9 creates federal jurisdiction for cases in which an Indian
commits one of a list of thirteen enumerated crimes against
another Indian in Indian country. Id. The government
charged Zepeda and prosecuted him under the latter statute.

    The question of Indian status operates as a jurisdictional
element under § 1153. Cruz, 554 F.3d at 843; Bruce,
394 F.3d at 1228. Nonetheless, we have held that Indian
status “is an element of the offense that must be alleged in the
indictment and proved beyond a reasonable doubt.” Maggi,


          the exclusive jurisdiction over such offenses is or may
          be secured to the Indian tribes respectively.

18 U.S.C. § 1152.

 9
     Section 1153(a) provides:

          Any Indian who commits against the person or property
          of another Indian or other person any of the following
          offenses, namely, murder, manslaughter, kidnaping,
          maiming, a felony under chapter 109A, incest, assault
          with intent to commit murder, assault with a dangerous
          weapon, assault resulting in serious bodily injury (as
          defined in section 1365 of this title), an assault against
          an individual who has not attained the age of 16 years,
          felony child abuse or neglect, arson, burglary, robbery,
          and a felony under section 661 of this title within the
          Indian country, shall be subject to the same law and
          penalties as all other persons committing any of the
          above offenses, within the exclusive jurisdiction of the
          United States.

18 U.S.C. § 1153(a).
10                   UNITED STATES V . ZEPEDA

598 F.3d at 1077 (citing Cruz, 554 F.3d at 845; Bruce,
394 F.3d at 1229). We have also held that whether a
defendant is an Indian is a mixed question of fact and law that
must be determined by the jury.10 See Bruce, 394 F.3d at
1218, 1223, 1229; see also Maggi, 598 F.3d at 1077; Cruz,
554 F.3d at 845. Indeed, it is the special province of the jury
to resolve any factual disputes arising under the two prongs
of the Bruce test. See Bruce, 394 F.3d at 1223; Maggi,
598 F.3d 1082-83; Cruz, 554 F.3d at 846-47.

    “Although jurisdictional questions are ordinarily reviewed
de novo, when a defendant brings a motion for acquittal in
order to challenge the sufficiency of the evidence underlying
a jurisdictional element, we owe deference to the jury’s
ultimate factual finding.” Cruz, 554 F.3d at 843–44.
“Accordingly . . . we review the district court’s decision
under the standard applied to sufficiency-of-the-evidence
challenges: ‘whether, after viewing the evidence in the light
most favorable to the prosecution, any rational trier of fact
could have found the essential elements of the crime beyond
a reasonable doubt.’” Id. at 844 (quoting Jackson v. Virginia,
443 U.S. 307, 319 (1979) (emphasis omitted)); see also
United States v. Nevils, 598 F.3d 1158, 1163–67 (9th Cir.
2010) (en banc).




  10
     As we explained in Bruce, “[m]ixed questions of law and fact are
those in which ‘the historical facts are admitted or established, the rule of
law is undisputed, and the issue is whether the facts satisfy the statutory
standard.’” 394 F.3d at 1218 (quoting Pullman-Standard v. Swint,
456 U.S. 273, 289 n. 19 (1982)).
                  UNITED STATES V . ZEPEDA                     11

                               III.

                               A.

     We first must determine whether the Tribal Enrollment
Certificate was properly admitted into evidence, or rather, as
Zepeda urges, whether its admission violated his rights under
the Confrontation Clause. Because Zepeda did not object at
trial to the district court’s admission of the Certificate
pursuant to the parties’ stipulation, we review for plain error.
United States v. Wright, 625 F.3d 583, 607 (9th Cir. 2010).

     “The test regarding the validity of a stipulation is
voluntariness.” United States v. Molina, 596 F.3d 1166,
1168–69 (9th Cir. 2010). We have previously held that
“‘[s]tipulations freely and voluntarily entered into in criminal
trials are as binding and enforceable as those entered into in
civil actions.’” Id. at 1169 (quoting United States v. Technic
Servs., 314 F.3d 1031, 1045 (9th Cir. 2002) (alteration in
original)). “‘[S]tipulations serve both judicial economy and
the convenience of the parties, [and] courts will enforce them
absent indications of involuntary or uninformed consent.’”
Id. (quoting CDN Inc. v. Kapes, 197 F.3d 1256, 1258 (9th
Cir. 1999) (alterations in original)). “A ‘defendant who has
stipulated to the admission of evidence cannot later complain
about its admissibility’ unless he can show that the stipulation
was involuntary.” Id. (quoting Technic Servs., 314 F.3d at
1045).

    Zepeda points to no record evidence that he entered into
the stipulation at issue involuntarily. Rather, he points to a
lack of record evidence that his attorney informed him of the
contents of the stipulation and its legal effect, and asserts that
his counsel’s waiver of his Confrontation Clause rights was
12               UNITED STATES V . ZEPEDA

invalid. While his first contention is plausible, Soliz testified
extensively regarding the Tribal Enrollment Certificate’s
contents, referring both to Zepeda’s bloodline and to his
eligibility for benefits from the Gila River Indian
Community. This testimony at least put Zepeda on notice
regarding the contents of the stipulation. Regardless, Zepeda
bears the burden on appeal of pointing to record evidence
showing that his consent was involuntary, and he has not
done so here. See Molina, 596 F.3d at 1169.

    Moreover, our case law recognizes that “defense counsel
may waive an accused’s constitutional rights as a part of trial
strategy.” United States v. Gamba, 541 F.3d 895, 900 (9th
Cir. 2008). Counsel’s authority extends to waivers of the
accused’s Sixth Amendment right to cross-examination and
confrontation as a matter of trial tactics or strategy. Wilson
v. Gray, 345 F.2d 282, 287–88 (9th Cir.), cert. denied,
382 U.S. 919 (1965).

    Zepeda argues that waiver of a fundamental constitutional
right cannot ever constitute a sound trial strategy, particularly
where, as here, the Tribal Enrollment Certificate purported to
establish an essential jurisdictional element. It appears from
the record, however, that Zepeda’s attorney strategically
focused Zepeda’s defense on the implausibility of
government witnesses’ testimony, as compared to Zepeda’s
markedly different version of the relevant events. He chose
not to direct the jury’s attention to Zepeda’s Indian status, and
informed the jury during his opening statement: “I will
stipulate and concede things that ought to be conceded in
terms of my client, Mr. Zepeda.” Although ultimately not a
winning strategy, it was clearly “deliberately made as a
matter of trial tactics,” and did not involve a “basic trial
right[]” such as the decision “whether to plead guilty, waive
                 UNITED STATES V . ZEPEDA                   13

a jury, testify in his . . . own behalf, or take an appeal.”
Gamba, 541 F.3d at 901 (quoting Florida v. Nixon, 543 U.S.
175, 187 (2004) (internal quotation marks omitted)). Nor, as
we discuss at length below, was the Tribal Enrollment
Certificate sufficient to carry the government’s burden of
proof of Zepeda’s Indian status. Thus, Zepeda’s attorney did
not violate Zepeda’s Confrontation Clause rights when he
stipulated to admission of the Certificate. See Gamba,
541 F.3d at 900; Wilson, 345 F.2d at 287.

    Accordingly, we conclude that the district court did not
plainly err in admitting the Tribal Enrollment Certificate into
evidence pursuant to the parties’ stipulation.

                              B.

    Having determined that the Tribal Enrollment Certificate
was properly admitted into evidence, we turn to whether,
viewing all evidence in the light most favorable to the
government, any rational juror could have found beyond a
reasonable doubt that Zepeda was an Indian, on the basis of
the slim evidence as to both prongs of the Bruce test.

    As noted, “[t]he Bruce test requires that the Government
prove two things: that the defendant has a sufficient ‘degree
of Indian blood,’ and has ‘tribal or federal government
recognition as an Indian.’” Cruz, 554 F.3d at 845 (quoting
Bruce, 394 F.3d at 1223, 1224). “The first prong requires
‘some’ Indian blood.” United States v. Ramirez, 537 F.3d
1075, 1082 (9th Cir. 2008) (quoting Bruce, 394 F.3d at 1223).
“Thus, ‘evidence of a parent, grandparent, or
great-grandparent who is clearly identified as an Indian is
generally sufficient to satisfy this prong.’” Id. (quoting
Bruce, 394 F.3d at 1223).
14               UNITED STATES V . ZEPEDA

     “The second prong requires evidence that ‘the Native
American has a sufficient non-racial link to a formerly
sovereign people.’” Id. (quoting Bruce, 394 F.3d at 1224).
“Courts analyzing this prong have considered evidence of: ‘1)
tribal enrollment; 2) government recognition formally and
informally through receipt of assistance reserved only to
Indians; 3) enjoyment of the benefits of tribal affiliation; and
4) social recognition as an Indian through residence on a
reservation and participation in Indian social life.’” Id.
(quoting Bruce, 394 F.3d at 1224). These four factors “are to
be considered ‘in declining order of importance.’” Cruz,
554 F.3d at 846 n. 6 (quoting Bruce, 394 F.3d at 1224).
“[T]ribal enrollment is ‘the common evidentiary means of
establishing Indian status, but it is not the only means nor is
it necessarily determinative’ . . . . [E]nrollment, and indeed,
even eligibility therefor, is not dispositive of Indian status.”
Id. (quoting Bruce, 394 F.3d at 1224-25 (some alterations in
original)).

    Our recent decision in United States v. Maggi made clear
that “[t]here is an important overlay to the Bruce test: To be
considered an Indian under . . . [§] 1153, the individual must
have a sufficient connection to an Indian tribe that is
recognized by the federal government. Affiliation with a tribe
that does not have federal recognition does not suffice.”
598 F.3d at 1078 (emphasis in original).

    In Maggi, the court addressed the consolidated appeals of
two defendants, Gordan Mann and Shane Maggi, both tried
and convicted pursuant to § 1153. Mann was an enrolled
member of the Little Shell Tribe of the Chippewa Cree, a
tribe that was not recognized by the federal government,
despite a longstanding petition for federal recognition. Id. at
1076. The court noted that tribal enrollment records often
                 UNITED STATES V . ZEPEDA                     15

include identification of an individual’s percentage of Indian
blood, and that this information is used to establish eligibility
for enrollment. Id. Mann’s enrollment record reflected his
degree of Indian blood as 10/64 Chippewa and 11/64 other
Indian blood. Id. Maggi’s degree of Indian blood was 1/64
Blackfeet tribe, a tribe recognized by the federal government,
and 1/32 Cree tribe. Id. at 1076, 1081–81. The record did
not reflect whether Maggi was descended from a federally
recognized group of the Cree tribe, such as the Rocky Boy
Reservation Chippewa Cree, or a non-recognized group, such
as the Little Shell Tribe Chippewa Cree. Id. Maggi was not
an enrolled member of any tribe, though his mother’s
enrollment in the Blackfeet tribe entitled him to the receipt of
certain limited benefits. Id. at 1076–77. Both Mann and
Maggi argued in the district court that they were not subject
to prosecution under § 1153 because they were not Indians.
Id.

    The court in Maggi commented that we had previously
addressed the issue of whether prosecution under § 1153
requires membership in a federally recognized tribe in LaPier
v. McCormick, 986 F.2d 303, 304–06 (9th Cir. 1993). In a
federal habeas petition under 28 U.S.C. § 2254, LaPier
challenged his Montana state court conviction, maintaining
that he should have been tried for his alleged crime in federal
court under § 1153 because he was an Indian. LaPier, like
Mann, was a member of the Little Shell Tribe of Chippewa
Cree. Id. at 306. The court reasoned that it did not need to
examine whether LaPier had shown a sufficient degree of
Indian blood or whether he had a sufficient connection to a
tribe because he had failed to satisfy an antecedent
requirement of affiliation with a federally recognized tribe:
16               UNITED STATES V . ZEPEDA

       We need not address . . . the question whether
       LaPier has shown a significant degree of
       blood and sufficient connection to his tribe to
       be regarded as one of its members for
       criminal jurisdiction purposes. There is a
       simpler threshold question that must be
       answered first, and in this case it is
       dispositive: Is the Indian group with which
       LaPier claims affiliation a federally
       acknowledged Indian tribe? If the answer is
       no, the inquiry ends. A defendant whose only
       claim of membership or affiliation is with an
       Indian group that is not a federally
       acknowledged Indian tribe cannot be an
       Indian for criminal jurisdiction purposes.

Id. at 304–05 (internal quotation marks and citations
omitted). The court therefore concluded that LaPier was not
entitled to habeas relief.

    Maggi recognized that LaPier’s threshold requirement of
affiliation with a federally recognized tribe stemmed from
judicial and legislative acknowledgment that federal criminal
jurisdiction over Indians is not dependent on a racial
classification, but upon the federal government’s relationship
with the Indian nations as separate sovereigns. 598 F.3d at
1078–79 (discussing LaPier, 986 F.2d at 305 (“Federal
legislation treating Indians distinctively is rooted in the
unique legal status of Indian tribes under federal law and
upon the plenary power of Congress, based on a history of
treaties and the assumption of a guardian-ward status, to
legislate on behalf of federally recognized Indian tribes.”),
United States v. Antelope, 430 U.S. 641, 646 (1977)
(“[F]ederal regulation of Indian affairs is not based upon
                    UNITED STATES V . ZEPEDA                          17

impermissible classifications. Rather, such regulation is
rooted in the unique status of Indians as ‘a separate people’
with their own political institutions. . . . [I]t is not to be
viewed as legislation of a ‘racial’ group consisting of
‘Indians’ . . . .”) (quoting Morton v. Mancari, 417 U.S. 535,
553 n. 24 (1974), and Means v. Navajo Nation, 432 F.3d 924,
930 (9th Cir. 2005)).

     Accordingly, Maggi concluded that LaPier’s requirement
of affiliation with a federally recognized tribe was not altered
or superseded by the test announced in Bruce, “which
presupposes that ‘tribal or government recognition as an
Indian’ means as an Indian from a federally recognized tribe.”
Maggi, 598 F.3d at 1079 (quoting Bruce, 394 F.3d at 1223).
It followed from this analysis that the first prong of the Bruce
test requires “that the bloodline be derived from a federally
recognized tribe.” Id. at 1080.11

                                   C.

    We must therefore determine whether the evidence the
government presented at trial was sufficient, drawing all
inferences in the government’s favor, to satisfy the threshold
question identified in LaPier and Maggi, namely, whether


    11
       Applying this test, the court concluded that federal criminal
jurisdiction was lacking over M ann because there was an “absence of
evidence” before the jury that he had blood from a federally recognized
tribe. Id. at 1080. His bloodline derived solely from a non-recognized
tribe and “other” Indian blood, with no particular tribal affiliation. Id.
Maggi, by contrast, had a bloodline of 1/64 Blackfeet tribe, a federally
recognized tribe. The court declined to determine whether this quantum
was sufficient to meet the requirement of “some blood,” but found the
government’s showing insufficient as to the four factors relevant to the
second prong of the Bruce test. Id. at 1081–83.
18                 UNITED STATES V . ZEPEDA

Zepeda’s bloodline is derived from a federally recognized
tribe. The Tribal Enrollment Certificate identifies Zepeda’s
bloodline as 1/4 Pima and 1/4 Tohono O’Odham. The
government introduced no evidence that either is a federally
recognized tribe.      Matthew’s testimony is equally
unilluminating, since he described his ancestral bloodline as
“Pima and Tiho.”

    The government (and the dissent) argues that whether a
given tribe is federally recognized is a question of law that
should be determined by the court rather than the jury, and
requests, at this late stage, that we take judicial notice of the
fact that both the “Gila River Indian Community of the Gila
River Indian Reservation, Arizona” and the “Tohono
O’Odham Nation of Arizona” are federally-recognized Indian
tribes.12 We address each issue in turn.

                                  a.

    Bruce and its progeny make clear that Indian status is an
element of any § 1153 offense, and as such, that it must be
alleged in the indictment and proven beyond a reasonable
doubt. 394 F.3d at 1229; Maggi, 598 F.3d at 1077; Cruz,
554 F.3d at 845. The government contends, nonetheless, that
our case law has treated the fact of federal recognition as a
purely legal question. We do not agree.




 12
   The names of both tribes, the government argues, appear in the Bureau
of Indian Affairs lists of “Indian Entities Recognized and Eligible to
Receive Services from the United States Bureau of Indian Affairs”
published on April 4, 2008 and October 1, 2010. See 73 Fed. Reg. 18553
(April 4, 2008); 75 Fed. Reg. 60810 (Oct. 1, 2010).
                  UNITED STATES V . ZEPEDA                     19

    In LaPier, having determined that “[i]t is . . . the existence
of the special relationship between the federal government
and the tribe in question that determines whether to subject
the individual Indians affiliated with that tribe to exclusive
federal jurisdiction for crimes committed in Indian country,”
the court stated that, “[t]o determine whether that special
relationship exists—whether the United States recognizes a
particular tribe—we defer ‘to the political departments.’”
986 F.2d at 305 (quoting Baker v. Carr, 369 U.S. 186, 215
(1962)) (additional citations omitted). The court indicated
that such deference was owed to the Bureau of Indian Affairs,
and commented that its list of federally recognized tribes
published in the Federal Register pursuant to 25 C.F.R. pt. 83
“appears to be the best source to identify federally
acknowledged Indian tribes whose members or affiliates
satisfy the threshold criminal jurisdiction inquiry.” Id.
Consulting this list, the court determined that LaPier was not
an Indian because the tribe with which he claimed affiliation
was not among the listed tribes. Id. at 306 (“LaPier contends
that he is an enrolled member of the Little Shell Band of
Landless Chippewa Indians of Montana. Even if he is, that
fact makes no difference because his claim to Indian status
fails the threshold test. The Little Shell Band of Landless
Chippewa Indians of Montana is not a federally
acknowledged tribe of Indians. Thus, while LaPier may be an
Indian in an anthropological or ethnohistorical sense, he is not
an Indian for purposes of criminal jurisdiction.”) (citation and
footnote omitted).

    In United States v. Heath, 509 F.2d 16 (9th Cir. 1974), the
court considered the effect of the Klamath Termination Act,
25 U.S.C. § 564 et seq., on the defendant’s criminal
conviction under § 1153, and found that federal criminal
jurisdiction over the defendant was lacking because the Act
20               UNITED STATES V . ZEPEDA

terminated federal supervision over the Klamath Tribe. Id. at
19 (“The Klamath Termination Act . . . was intended to end
the special relationship that had historically existed between
the Federal Government and the Klamath Tribe. While
anthropologically a Klamath Indian even after the
Termination Act obviously remains an Indian, his unique
status vis-a-vis the Federal Government no longer exists. . . .
We conclude accordingly that 18 U.S.C. § 1153 cannot serve
to confer Federal jurisdiction with respect to crimes
committed by terminated Klamath Indians.”).

    Finally, in Maggi, discussed at length above, the court
found that the threshold requirement of a bloodline from a
federally recognized tribe was lacking for one defendant
because there was an absence of evidence that his bloodline
derived from a recognized tribe. 598 F.3d at 1080. This
precedent, considered as a whole, reflects our recognition that
there is a legal element embedded in the first prong of the
Bruce test: Federal recognition is a legal status afforded to
“American Indian groups indigenous to the continental
United States . . . that can establish a substantially continuous
tribal existence and which have functioned as autonomous
entities throughout history until the present.” 25 C.F.R.
§ 83.3. The Bureau of Indian Affairs, in accordance with the
governing regulations, affords the legal designation of federal
recognition to those tribes that meet its criteria. See id.
§§ 83.1–83.13 (noting procedures for establishing that an
American Indian group exists as an Indian tribe). As we said
in LaPier, “absent evidence of its incompleteness, the BIA
list appears to be the best source to identify federally
acknowledged Indian tribes whose members or affiliates
satisfy the threshold criminal jurisdiction inquiry.” 986 F.2d
at 305.
                     UNITED STATES V . ZEPEDA                             21

    It does not follow, however, that federal recognition is
self-evidencing. To the contrary, the question of whether a
given tribe is indeed listed among the tribes recognized by the
federal government remains quintessentially factual in nature.
Our case law is clear that federal recognition, like all
elements of Indian status, must be proved to the jury beyond
a reasonable doubt. See Maggi, 598 F.3d at 1077; Cruz,
554 F.3d at 845; Bruce, 394 F.3d at 1229; see also Ninth Cir.
Model Jury Instr. No. 8.113 (“In order for the defendant to be
found to be an Indian, the government must prove the
following, beyond a reasonable doubt: First, the defendant
has descendant status as an Indian, such as being a blood
relative to a parent, grandparent, or great-grandparent who is
clearly identified as an Indian from a federally recognized
tribe . . . .”) (emphasis added); id. cmt. (“The question of
Indian status operates as a jurisdictional element under
18 U.S.C. § 1153. ‘Some blood’ evidence must be from a
federally recognized tribe.”) (citations omitted). The
government is not relieved of its evidentiary burden in a
prosecution under § 1153 simply because federal recognition
by the Bureau of Indian Affairs, at the end of the
administrative process, is a legal designation.13

    The government and dissent draw an analogy to territorial
jurisdiction cases, and argue that the judge should determine
the existence of federal recognition as a matter of law and so
instruct the jury. Further, the government and dissent would

  13
    W e note that meeting the government’s burden of proof is hardly an
onerous task. The government could, inter alia, present live testimony
from a competent employee of the Bureau of Indian Affairs, request that
the district court take judicial notice of the Bureau of Indian Affairs’s list
of federally recognized tribes published in the Federal Register, or
stipulate with defense counsel to the fact of a given tribe’s federal
recognition.
22               UNITED STATES V . ZEPEDA

have this court make such a finding where the prosecution
failed to present evidence of federal recognition and the
district court made no such finding. In United States v. Gipe,
672 F.2d 777 (9th Cir. 1982) (per curiam), we explained that
in “territorial jurisdiction cases, where the exercise of federal
jurisdiction over a specific geographic area is necessary to
vest jurisdiction in federal court . . . the court may determine
as a matter of law the existence of federal jurisdiction over
the geographic area, [although] the locus of the offense within
that area is an issue for the trier of fact.” Id. at 779. We also
explained, however, that where the “locus of the act . . .
constitutes an element of the crime . . . the prosecution should
bear the burden of proof as to the status of the site” beyond a
reasonable doubt. Id. As discussed at length supra, Indian
status under § 1153 is an element of the offense. The
government, therefore, must prove this element, like any
other, by making a sufficient evidentiary showing that the
tribe in question has achieved federal recognition. See
Maggi, 598 F.3d at 1080.

    In analogizing federal recognition to territorial
jurisdiction, the dissent bases its disagreement, in part, on an
“overriding practical consideration.” Dissent at 33; see
Dissent Part II. Although a practical consideration should not
trump adherence to our case law, we nonetheless pause to
address it. The dissent argues that, historically, determination
of federal recognition of an Indian tribe “involved review of
source materials that judges are better suited than juries to
evaluate,” such as treaties, statutes and executive orders.
Dissent at 33–35. After reviewing this historical context, the
dissent concludes, “[t]he fact that the source materials for
resolving the issue of federal recognition have until recently
been legal texts explains why there is no historical support for
submitting that issue to the jury.” Dissent at 35. The dissent
                    UNITED STATES V . ZEPEDA                           23

is correct that until recently the determination of federal
recognition may have involved some manner of source
material interpretation. As we noted in LaPier, however, the
process for determining federal recognition fundamentally
changed in 1978; and the dissent fails to recognize that the
entire body of case law regarding Indian status at issue here
was developed against this modern legislative backdrop. As
we noted above, in LaPier we looked to the BIA’s
“comprehensive list” and found that “[a]bsent evidence of its
incompleteness,” the list was the “best source” for
determining federal recognition. 986 F.2d at 305. The
dissent offers no evidence of incompleteness, nor is the
dissent’s citation to other statutory provisions persuasive, as
each congressional act is incorporated into the BIA’s list. See
Dissent at 36 (citing 25 U.S.C. §§ 566, 712a, 1300j, 1300b-
11). Thus, even this “practical” concern seems merely
speculative.14

    We draw support for our conclusion that the government
failed to meet its burden of proof here from United States v.
James, 987 F.2d 648 (9th Cir. 1993). In that case, the

  14
     The Tenth Circuit has taken a similar position with respect to the
judicial role in determining federal recognition. “In 1978 the Department
of Interior promulgated regulations establishing ‘procedures for
establishing that an American Indian group exists as an Indian tribe.’” W.
Shoshone Bus. Council For & on Behalf of W. Shoshone Tribe of Duck
Valley Reservation v. Babbitt, 1 F.3d 1052, 1056–57 (10th Cir. 1993)
(quoting 25 C.F.R. pt. 83). In analyzing whether a tribe was federally
recognized, the Tenth Circuit reviewed, much like the dissent, the history
of federal recognition and held that “the limited circumstances under
which ad hoc judicial determinations of recognition were appropriate have
been eclipsed by federal regulation.” Id. at 1056 (referring to the express
purpose of 25 C.F.R. § 83.2 to determine which tribes are federally
recognized and holding that “the Tribe’s absence from this list is
dispositive”).
24               UNITED STATES V . ZEPEDA

defendant was convicted of bank robbery in violation of
18 U.S.C. § 2113(a). The government neglected to introduce
evidence that the banks it accused the defendant of robbing
were insured by the Federal Deposit Insurance Corporation
(“FDIC”), though proof of FDIC insurance is an element of
the charged offense. Id. at 649. At trial, the prosecutor
alerted the district court that the parties were planning to
enter into a stipulation that “ha[d] to do with the FDIC aspect
of the case,” but no such stipulation was ever read to the jury.
Id. We reversed and held that there was insufficient evidence
to support the defendant’s conviction, reasoning that:

        [T]here was no evidence before the jury at all
       on whether the banks were insured by the
       FDIC. The bank employees who testified did
       not testify as to the FDIC status of the banks,
       and the stipulation concerning the “FDIC
       aspect” of the case was not read to the jury or
       received into evidence. Without any evidence
       on the FDIC status of the bank, no rational
       jury could have found beyond a reasonable
       doubt that the banks were insured by the
       FDIC.

Id. at 650 (citation omitted).

    Here, like in James, because the government presented no
evidence to the jury that Zepeda’s bloodline derived from a
federally recognized tribe, the jury lacked the requisite
foundation to find beyond a reasonable doubt that the Pima or
Tohono O’Odham tribes are federally recognized.
Accordingly, we conclude that evidence of federal
                    UNITED STATES V . ZEPEDA                            25

recognition sufficient to sustain Zepeda’s conviction on
counts 2 through 9 of the indictment was lacking.15




  15
     The government’s reliance on United States v. Johnson, 680 F.3d
1140 (9th Cir. 2012) is misplaced. In that case, the defendant was
convicted of two counts of making a false statement on federal “Form
4473” respecting information required to be kept by a federally licensed
firearms dealer, in violation of 18 U.S.C. § 924(a)(1)(A). Id. at 1142. The
defendant argued on appeal that the district court erred by deciding as a
matter of law, rather than submitting to the jury, the question of whether
the “information required by law to be kept by federally licensed firearms
dealers” included identification of the actual buyer on Form 4473. Id. at
1146. The court noted that “Title 18 U.S.C. § 922(b)(5) directs licensed
dealers to maintain records containing ‘the name, age, and place of
residence’ of all individual buyers,” that “Title 18 U.S.C. § 923(g)(1)(A)
states that licensed dealers must maintain ‘such records of . . . sale, or
other disposition of firearms at his place of business for such period, and
in such form, as the Attorney General may by regulations prescribe,’” and
that the Attorney General had promulgated regulations regarding the
required contents of Form 4473. Id. at 1147. The court therefore
concluded that “[t]he question whether the information on Form 4473
satisfied the requirements of § 924(a)(1)(A) was . . . entirely a matter of
law, which the district court correctly resolved.” Id. (citing United States
v. Cabaccang, 332 F.3d 622, 624–25 (9th Cir. 2003) (en banc) (“The
construction or interpretation of a statute is a question of law . . . .”)
(additional citation omitted)).

     This case is readily distinguishable. The required contents of federal
“Form 4473” is a question purely of statutory interpretation. By contrast,
though the requirements of federal recognition are statutorily defined, the
Bureau of Indian Affairs must make this determination in the first
instance, subject to judicial review under the Administrative Procedure
Act. See 25 C.F.R. §§ 83.1–83.13; Greene v. Babbitt, 64 F.3d 1266,
1271-75 (9th Cir. 1995). W hether the Bureau of Indian Affairs has
recognized a particular tribe is a factual question, and must, therefore, be
proved to a jury.
26                UNITED STATES V . ZEPEDA

    We therefore turn to the government’s request that we
take judicial notice of the Bureau of Indian Affairs’s list of
federally recognized tribes in 2008 and 2010.

                                b.

     The government is correct, as a general matter, that the
Bureau of Indian Affairs’s list of federally recognized tribes
is a proper subject of judicial notice, even on appeal. The fact
of federal recognition is “capable of accurate and ready
determination,” the Federal Register is a “source[] whose
accuracy cannot reasonably be questioned,” and a court may
take judicial notice “at any stage of the proceeding.” Fed. R.
Evid. 201(b)(2), (d); Papai v. Harbor Tug & Barge Co.,
67 F.3d 203, 207 n.5 (9th Cir. 1995), rev’d on other grounds,
520 U.S. 548 (1997) (“Rule 201 provides for judicial notice
of adjudicative facts that are, inter alia, ‘capable of accurate
and ready determination by resort to sources whose accuracy
cannot reasonably be questioned.’ Such ‘[j]udicial notice
may be taken at any stage of the proceeding,’ including on
appeal . . . .”) (citations omitted).

    However, Rule 201 further provides that, “[i]n a criminal
case, the court must instruct the jury that it may or may not
accept the noticed fact as conclusive.” Fed. R. Evid. 201(f).
In other words, judicially-noticed facts are insufficient to
meet the government’s burden of proof beyond a reasonable
doubt unless and until they are accepted by the jury as
conclusive. Accordingly, we have recognized that, “[f]or a
court . . . to take judicial notice of an adjudicative fact after a
jury’s discharge in a criminal case would cast the court in the
role of a fact-finder and violate defendant’s Sixth
Amendment right to trial by jury.” United States v. Dior,
                     UNITED STATES V . ZEPEDA                            27

671 F.2d 351, 358 n. 11 (9th Cir. 1982).16 Indeed, “just
because a fact may be generally known does not mean that
the need to introduce evidence of that fact, or to request that
it be judicially noticed, is dispensed with automatically. As
Mr. Dooley once said: ‘Nuth’n walks itself into evidence.’”
Id.

    Here, although it would have been proper for the
government to request the district court to take judicial notice
of the fact of the Gila River Indian Community of the Gila
River Indian Reservation, Arizona17 and Tohono O’Odham

 16
    The court in Dior cited the Sixth Circuit’s discussion of this point in
United States v. Jones, 580 F.2d 219 (6th Cir. 1978), with approval. In
Jones, the Sixth Circuit addressed an appellate court’s power under former
Fed. R. Evid. 201(f) to take judicial notice “at any stage of the
proceeding.” The court held that it could not take judicial notice on
appeal of the fact that Southern Central Bell Telephone Company was a
common carrier that provided facilities for the transmission of interstate
or foreign communications. Id. at 224. The court noted that Rule 201
provides that the jury in a criminal case may, but is not required to, accept
as conclusive any fact judicially noticed. Id. at 223. Therefore, the court
reasoned, for an appellate court to take judicial notice of an adjudicative
fact in a criminal case would frustrate the policies Congress sought to
achieve in providing that a jury is not required to accept as conclusive a
judicially noticed fact. Id. The Dior court agreed, adding that “[t]hese
policies are to preserve the jury’s traditional prerogative, in a criminal
case, to ignore even uncontroverted facts in reaching a verdict and to
prevent the trial court from violating the spirit of the Sixth Amendment
right to counsel by directing a partial verdict as to facts.” Dior, 671 F.2d
at 358 n. 11 (citing Jones, 580 F.2d at 223-24; “Note of Committee of the
Judiciary” H.R. No. 93-650, 93d Cong., 1st Sess. 6-7, reprinted in
(1974) U.S. Code Cong. & Admin. News 7051, 7075, 7080). Dior
remains good law and we are bound to follow its persuasive analysis.

 17
   W e note that because we are only concerned with the first prong of the
Bruce test, the status of the Gila River is not actually relevant to our
decision.
28                  UNITED STATES V . ZEPEDA

Nation of Arizona tribes’ federal recognition as part of its
case in chief, the government made no such request and the
district court did not do so.18 Rather, the jury found that
Zepeda was an Indian pursuant to § 1153 in the absence of
any proof that Zepeda’s bloodline derived from a federally
recognized tribe. We are not at liberty to displace the role of
the jury and to make this factual determination on its behalf.
See James, 987 F.2d at 651 (rejecting the government’s


  18
      The dissent would have this court find as a matter of law that the
“Tohono O’odham Nation of Arizona” and the “Gila River Indian
Community of the Gila River Indian Reservation, Arizona” are federally
recognized tribes. Dissent at 42. Even were this court permitted to do
so— which we are not— we would still be compelled to reverse Zepeda’s
conviction on sufficiency grounds. Analyzing only the first prong of the
Bruce test, there would remain no evidence in the record that the “Tohono
O’Odham” referenced in Zepeda’s Tribal Enrollment Certificate refers to
the federally recognized “Tohono O’odham Nation of Arizona.” The
dissent elides this point and claims that “Zepeda has not contested the
federally recognized status” of the Gila River Indian Community nor the
Tohono O’odham Nation of Arizona. Dissent at 42. To the point, Zepeda
vigorously argues that the name “Tohono O’Odham” is not on the BIA list
and that the “appellation ‘Tohono O’Odham’ describes the collective
Tohono O’Odham population, a substantial portion of which has always
resided in the Sonoran Desert of northwest Mexico. The BIA specifically
lists as federally recognized only the ‘Tohono O’odham Nation of
Arizona,’ and not members of the collective ‘Tohono O’Odham’ tribe,
‘wherever residing’ that Zepeda’s certificate apparently describes. . . .
[T]he Certificate’s recitation of ‘Tohono O’Odham’ must include the
Tohono O’Odhams of Mexico, who cannot be the ‘Tohono O’odham
Nation of Arizona’ . . . .”

     Even under the dissent’s law-fact dichotomy, the government still
bore the burden of proving beyond a reasonable doubt the fact that
Zepeda’s blood derived from the federally recognized “Tohono O’odham
Nation of Arizona.” As Zepeda’s argument indicates, this is a factual
inquiry and one that was not decided by the jury in this case— nor could
it have been as it was never presented to the jury.
                 UNITED STATES V . ZEPEDA                     29

argument that a rational juror could have found the defendant
guilty of the federal crime of bank robbery beyond a
reasonable doubt in light of the fact that “the district court
could have taken judicial notice of the FDIC status of the
bank” because “it was not asked to take judicial notice of the
FDIC status of the bank and did not do so. Nor was any
judicially noticed fact presented to the jury”).

    Because “there is no evidence that [Zepeda] has any
blood from a federally recognized Indian tribe,” Maggi,
598 F.3d at 1075, we conclude that no rational juror could
have found Zepeda guilty beyond a reasonable doubt of
counts 2 through 9 of the indictment, the offenses predicated
on § 1153, and his convictions must be vacated.

                              IV.

    In sum, we hold that the Tribal Enrollment Certificate was
insufficient to establish that Zepeda is an Indian for the
purposes of federal jurisdiction under § 1153 because the
government introduced no evidence that Zepeda’s bloodline
is derived from a federally recognized tribe. We do not
suggest, in so holding, that a Tribal Enrollment Certificate
may never be sufficient to meet the government’s burden
under the first prong of the Bruce test. Of course, future
cases may present circumstances in which the Certificate
itself reflects this information. But that is not the case before
us today.

    Because we hold that the government introduced
insufficient evidence under the first prong of the Bruce test,
we need not consider whether the Tribal Enrollment
Certificate alone was sufficient to carry the government’s
30                 UNITED STATES V . ZEPEDA

burden as to the second prong. As to that issue, we express
no opinion.

    For the above reasons, Zepeda’s convictions under
§ 1153, in counts 2 through 9 of the indictment, are
REVERSED. Zepeda’s conviction for conspiracy in violation
of 18 U.S.C. § 371 is unaffected by this disposition.19 See
Begay, 42 F.3d at 499 (“Section 371 is a federal criminal
statute of nationwide applicability, and therefore applies
equally to everyone everywhere within the United States,
including Indians in Indian country.”).

    REVERSED            in    part    and      REMANDED             for
resentencing.



WATFORD, Circuit Judge, dissenting:

    I part company with the majority on a single issue, but
that issue is a game-changer in this case. We all agree that
federal courts have subject matter jurisdiction under
18 U.S.C. § 1153 only if the defendant is an “Indian,” which
means the defendant must have both a blood connection and
sufficient non-racial ties to an Indian tribe that has been
recognized by the federal government. Federal recognition
of an Indian tribe is a formal political act that “permanently
establishes a government-to-government relationship between
the United States and the recognized tribe as a ‘domestic
dependent nation,’ and imposes on the government a


 19
    Zepeda raises numerous additional issues on appeal that are relevant
to his conspiracy conviction. We address those issues in a separate
memorandum disposition filed concurrently with this opinion.
                 UNITED STATES V . ZEPEDA                   31

fiduciary trust relationship to the tribe and its members.”
H.R. Rep. 103-781, at 2 (1994) (footnote omitted). The
majority holds that the existence of this government-to-
government relationship is a factual determination for the
jury to make. I would hold that it is a question of law for the
court to resolve.

                              I

    We have addressed this same judge-or-jury issue in a
variety of contexts, one of which is particularly analogous
here. A jurisdictional element of various federal crimes
requires proof that the offense was committed within “Indian
country.” See, e.g., 18 U.S.C. §§ 1152, 1153; see also
18 U.S.C. § 1151 (defining “Indian country”). We have held
that this element has both a factual and a legal component:
The jury decides as a factual matter where the crime
occurred; the court decides as a matter of law whether that
location is within Indian country. United States v. Sohappy,
770 F.2d 816, 822 & n.6 (9th Cir. 1985); United States v.
Gipe, 672 F.2d 777, 779 (9th Cir. 1982) (per curiam). The
Second, Eighth, and Tenth Circuits have adopted the same
rule. See United States v. Roberts, 185 F.3d 1125, 1138–39
(10th Cir. 1999); United States v. Cook, 922 F.3d 1026, 1031
(2d Cir. 1991); United States v. Deon, 656 F.2d 354, 356–57
(8th Cir. 1981). Thus, at trial, the court decides the
“jurisdictional status” of the place where the alleged crime
occurred, “and then leaves to the jury the factual
determination of whether the alleged crime occurred at the
site.” Roberts, 185 F.3d at 1139; see also FELIX S. COHEN ,
HANDBOOK OF FEDERAL INDIAN LAW § 9.02[1][b], p. 732
(2005 ed.) (hereafter COHEN ).
32               UNITED STATES V . ZEPEDA

    The same rule applies to statutes requiring proof that the
offense was committed within the “special maritime and
territorial jurisdiction of the United States.” See, e.g.,
18 U.S.C. §§ 113, 1111; see also 18 U.S.C. § 7 (defining the
phrase). In that context, too, the jury decides as a factual
matter where the crime occurred, but the court determines as
a matter of law whether that location is within the special
maritime and territorial jurisdiction of the United States. See
United States v. Warren, 984 F.2d 325, 327 (9th Cir. 1993);
accord United States v. Hernandez-Fundora, 58 F.3d 802,
809–12 (2d Cir. 1995); United States v. Jones, 480 F.2d 1135,
1138–39 (2d Cir. 1973).

    Like the Indian country and territorial jurisdiction
elements at issue in these cases, the Indian status element of
§ 1153 has both a factual and a legal component. The factual
component, to be decided by the jury, is derived from the
two-prong test we established in United States v. Bruce,
394 F.3d 1215 (9th Cir. 2005), which requires proof that the
defendant has (1) a blood connection to an Indian tribe, and
(2) sufficient non-racial ties to an Indian tribe. Id. at
1223–24. The legal component, to be resolved by the court,
is whether the Indian tribe at issue has been recognized by the
federal government.

    Federal recognition should be classified as a legal issue
because it stands doctrinally on the same footing as the
determination that a particular location is within Indian
country or the special maritime and territorial jurisdiction of
the United States. Both determinations relate to a fixed legal
status that does not change from case to case—the status of
a particular location relative to the federal government in one
instance, the status of the defendant’s tribe relative to the
federal government in the other. And both determinations
                 UNITED STATES V . ZEPEDA                     33

play the same role in their respective spheres: They vest
federal courts with subject matter jurisdiction. Federal
recognition of an Indian tribe establishes a “special
relationship” between the federal government and the tribe,
which “subject[s] the individual Indians affiliated with that
tribe to exclusive federal jurisdiction for crimes committed in
Indian country.” LaPier v. McCormick, 986 F.2d 303, 305
(9th Cir. 1993). Absent that special relationship between the
federal government and the defendant’s tribe, federal courts
lack subject matter jurisdiction under § 1153. Id.; United
States v. Heath, 509 F.2d 16, 19 (9th Cir. 1974). Thus, just
as the federal government must exercise jurisdiction over the
place where the crime occurred for subject matter jurisdiction
to vest under certain statutes, so too the federal government
must recognize the defendant’s Indian tribe before subject
matter jurisdiction can vest under § 1153.

    The majority offers no principled basis for holding that
the jurisdictional status of the defendant’s Indian tribe is a
factual issue in § 1153 cases, when the jurisdictional status of
a location is a legal issue in the Indian country and territorial
jurisdiction cases. The two determinations seem functionally
identical to me. I would apply the same rule to both and hold
that the jurisdictional status of the defendant’s tribe should be
determined by the court rather than the jury.

                               II

    Beyond the doctrinal parallels, an overriding practical
consideration supports treating the jurisdictional status of a
location and the jurisdictional status of the defendant’s Indian
tribe as questions of law: Historically, both determinations
have involved review of source materials that judges are
better suited than juries to evaluate. See Miller v. Fenton,
34               UNITED STATES V . ZEPEDA

474 U.S. 104, 114 (1985) (“[T]he fact/law distinction at times
has turned on a determination that, as a matter of the sound
administration of justice, one judicial actor is better
positioned than another to decide the issue in question.”).

     Take the Indian country determination as an example.
Determining whether a particular location is within Indian
country typically involves construing the effect of treaties,
statutes, and executive orders with respect to the geographic
area at issue. See, e.g., United States v. John, 437 U.S. 634,
638–54 (1978) (interpreting treaties and congressional
enactments to determine whether lands designated as a
reservation for the Choctaw Indians were within Indian
country); United States v. Soldana, 246 U.S. 530, 531–33
(1918) (construing federal statutes to determine whether a
railroad right-of-way remained within the Crow Indian
Reservation); Donnelly v. United States, 228 U.S. 243,
259–69 (1913) (surveying a wide range of executive orders
and legislative enactments to determine whether the bed of
the Klamath River was within the Hoopa Valley
Reservation). We have rightly deemed judges rather than
juries better suited to the task of interpreting the meaning and
effect of treaties, statutes, and executive orders. See Sohappy,
770 F.2d at 822 n.6 (“The issue of what constitutes Indian
country is properly a matter for the judge and not the jury.”).
That allocation of responsibility is consistent with the
Supreme Court’s general observation that “[t]he construction
of written instruments is one of those things that judges often
do and are likely to do better than jurors unburdened by
training in exegesis.” Markman v. Westview Instruments,
Inc., 517 U.S. 370, 388 (1996).

    For most of our Nation’s history, determining a tribe’s
federally recognized status also involved interpretation of
                 UNITED STATES V . ZEPEDA                   35

treaties, statutes, and executive orders. From the founding
until 1871, the federal government recognized Indian tribes
primarily by negotiating treaties with individual tribes.
United States v. Lara, 541 U.S. 193, 201 (2004); Golden Hill
Paugussett Tribe of Indians v. Weicker, 39 F.3d 51, 57 (2d
Cir. 1994); COHEN § 3.02[4], p. 140. After Congress banned
treaty making with tribes in 1871, see 25 U.S.C. § 71, the
Executive Branch continued to recognize tribes by
negotiating bilateral agreements that Congress then ratified
by statute. Antoine v. Washington, 420 U.S. 194, 203–04
(1975); COHEN § 5.01[3], p. 395. Since passage of the Indian
Reorganization Act of 1934, 25 U.S.C. § 461 et seq., tribes
have been recognized primarily through administrative action
by the Bureau of Indian Affairs (BIA), initially on an ad hoc
basis and then, beginning in 1978, through formal
administrative procedures. See Golden Hill Paugussett Tribe,
39 F.3d at 57; 25 C.F.R. pt. 83. “Consequently, federal courts
historically played a significant role in determining federally
recognized tribal existence, relying heavily on the history of
dealings by the political branches through treaties, statutes,
executive orders, or agreements recognizing the tribe in
question.” COHEN § 3.02[1], p. 136.

    The fact that the source materials for resolving the issue
of federal recognition have until recently been legal texts
explains why there is no historical support for submitting that
issue to the jury. Indeed, the majority fails to cite a single
instance in which a jury has been asked to decide whether the
federal government has recognized an Indian tribe. As will
be shown below, our cases have instead treated the issue (at
least implicitly) as one of law for the court to resolve.

   The majority notes that today the task of determining
which tribes have been federally recognized is much simpler
36               UNITED STATES V . ZEPEDA

because the BIA periodically publishes a list of such tribes.
See 25 C.F.R. § 83.5(a) (list to be updated and published
every three years). But the existence of this list, which first
appeared in 1979, see LaPier, 986 F.2d at 305, cannot
transform what had been a legal issue for the court into a
factual question for the jury. The list merely reflects actions
Congress and the Executive Branch have previously taken to
confer federal recognition on the listed tribes. If tomorrow
the Executive Branch created a list of all locations that are
within “Indian country,” or within the “special maritime and
territorial jurisdiction of the United States,” would we hold
that the jurisdictional status of the place where the crime
occurred is now a factual question that must be submitted to
the jury? I cannot see any reason why we would.

    In any event, consulting the BIA’s list will not always end
the federal recognition inquiry. See COHEN § 3.02[5], p. 143
(“Tribes not included on the list may be able to establish their
status as federally recognized through other means,
however.”). Congress retains the authority to recognize new
tribes by statute and to restore the status of previously
terminated tribes without any action by the BIA, a power it
has exercised a number of times since 1979. See, e.g.,
25 U.S.C. §§ 566, 712a, 1300j, 1300b-11; see also COHEN
§ 3.02[5], p. 144 & n.57; id. § 3.02[8][c], p. 168 & n.225. In
addition, Congress has declared that it alone has the authority
to terminate a tribe’s federally recognized status. See
Federally Recognized Indian Tribe List Act of 1994, Pub. L.
No. 103-454, § 103(4), 108 Stat. 4791, 4791 (1994); COHEN
§ 3.02[8][a], p. 164. That means the BIA’s failure to include
a recognized tribe on the list, whether deliberately or through
oversight, would not strip a tribe of its federally recognized
status unless Congress had spoken through express legislative
action. See COHEN § 3.02[8][a], p. 164 & n.196. Even today,
                 UNITED STATES V . ZEPEDA                  37

then, circumstances remain in which determining a tribe’s
federally recognized status might entail interpreting the
meaning and effect of congressional enactments. As noted,
that is not a task we typically assign to juries.

                             III

    The cases on which the majority relies provide no support
for its holding. We did not address whether judge or jury
should resolve the issue of federal recognition in United
States v. Maggi, 598 F.3d 1073 (9th Cir. 2010), United States
v. Cruz, 554 F.3d 840 (9th Cir. 2009), United States v. Bruce,
394 F.3d 1215 (9th Cir. 2005), LaPier v. McCormick,
986 F.2d 303 (9th Cir. 1993), or United States v. Heath,
509 F.2d 16 (9th Cir. 1974). Those cases merely established
that a defendant’s Indian status is an element of the offense
that must be proved to the jury beyond a reasonable doubt.
See, e.g., Maggi, 598 F.3d at 1077; Cruz, 554 F.3d at 845;
Bruce, 394 F.3d at 1229. No one disputes that here. The only
question is whether one component of that element—the
federally recognized status of the tribe at issue—must be
decided by the jury. On that score, the Indian country and
territorial jurisdiction cases discussed above are
indistinguishable. There, too, the jury must find beyond a
reasonable doubt that the offense occurred within Indian
country, or within the special maritime and territorial
jurisdiction of the United States. Nonetheless, we have held
that one component of that element—the jurisdictional status
of the place where the crime occurred—is a legal question for
the court to resolve. See Warren, 984 F.2d at 327; Sohappy,
770 F.2d at 822 & n.6; Gipe, 672 F.2d at 779.

    The majority is mistaken in suggesting that Gipe supports
its holding. Gipe reaffirms the rule from the territorial
38               UNITED STATES V . ZEPEDA

jurisdiction cases on which I rely: “[W]here the exercise of
federal jurisdiction over a specific geographic area is
necessary to vest jurisdiction in federal court,” “the court may
determine as a matter of law the existence of federal
jurisdiction over the geographic area, but the locus of the
offense within that area is an issue for the trier of fact.”
672 F.2d at 779 (emphasis added). That rule applies here
because federal recognition of the defendant’s Indian tribe is
necessary to vest jurisdiction in federal court under 18 U.S.C.
§ 1153. See LaPier, 986 F.2d at 305; Heath, 509 F.2d at 19.
The rule the majority quotes from Gipe as supportive of its
holding—“where the ‘locus of the act . . . constitutes an
element of the crime . . . the prosecution should bear the
burden of proof as to the status of the site’ beyond a
reasonable doubt”—does not apply to § 1153. Maj. Op. at
22. It applies only when the status of the site is an element of
the offense but is not jurisdictional, as is true under 18 U.S.C.
§ 1156, the statute at issue in Gipe. See 672 F.2d at 779; cf.
Maj. Op. at 9 (acknowledging that Indian status is a
jurisdictional element under § 1153).

    In the cases cited by the majority in which a tribe’s
federally recognized status was actually at issue, we never
suggested that federal recognition was a factual question. In
Heath, we reversed the defendant’s conviction under
18 U.S.C. § 1153 because she was a member of a tribe whose
federally recognized status had been terminated by Congress.
Heath, 506 F.2d at 19. That issue had not been addressed
below because Heath had stipulated at trial that she was an
Indian. Id. at 17–18. But federal recognition turned on
construction of a statute, the Klamath Termination Act,
25 U.S.C. § 564 et seq., and we resolved the issue ourselves.
We did not treat the tribe’s status as a factual question to be
                 UNITED STATES V . ZEPEDA                   39

decided by the district court in the first instance, or by the
jury at a new trial.

    In LaPier, we rejected a state habeas petitioner’s
contention that, because he was an Indian, the state courts
lacked jurisdiction over his offense. We rejected that
contention because the petitioner’s tribe was not federally
recognized. LaPier, 986 F.2d at 305–06. Although the
district court had not addressed the issue, we decided it
ourselves by consulting the list of federally recognized tribes
prepared by the BIA. See id. We held that, “[a]bsent
evidence of its incompleteness, the BIA list appears to be the
best source to identify federally acknowledged Indian tribes
whose members or affiliates satisfy the threshold criminal
jurisdictional inquiry.” Id. at 305. Had we regarded a tribe’s
federally recognized status as a factual issue, we presumably
would have remanded for resolution of that issue in the first
instance by the district court.

    Finally, in Maggi we reversed a defendant’s conviction
under 18 U.S.C. § 1153 because the defendant’s tribe had not
been recognized by the federal government. Our discussion
of that issue gave no hint that we regarded federal recognition
as a factual question. Contrary to the majority’s suggestion
(Maj. Op. at 17 n.11), we did not speak of the “evidence” of
federal recognition having been insufficient. Instead, we
simply declared that the tribe at issue “is not recognized by
the federal government, although there is a longstanding
petition for recognition pending.” Maggi, 598 F.3d at 1076.
That declaration is as consistent with this court having
resolved the issue as a matter of law as anything else.

   The majority also relies on United States v. James,
987 F.2d 648 (9th Cir. 1993), where we reversed a
40               UNITED STATES V . ZEPEDA

defendant’s bank robbery conviction because the government
failed to introduce any evidence establishing that the bank’s
deposits were insured by the Federal Deposit Insurance
Corporation (FDIC).           That decision seems readily
distinguishable to me, since proof of FDIC insurance
generally turns on review of historical facts, a responsibility
juries have traditionally been assigned. See, e.g., United
States v. Washburn, 758 F.2d 1339, 1339–40 (9th Cir. 1985)
(per curiam) (FDIC insurance proved by copy of bank’s
original 1976 FDIC certificate and testimony that bank
personnel regularly checked to make sure the certificate was
still current); United States v. Ballard, 418 F.2d 325, 327 (9th
Cir. 1969) (FDIC insurance proved by invoice from the FDIC
and cancelled check from the bank). But even if James is in
tension with the Indian country and territorial jurisdiction
cases discussed above, those cases involve a far more
analogous jurisdictional element than FDIC insurance. Faced
with the choice of following James or the more closely on
point decisions in Warren, Sohappy, and Gipe (among
others), I have no difficulty concluding that the latter cases
provide a sounder source of guidance.

                               IV

    It follows that we should adopt here the same rule we
apply in the Indian country and territorial jurisdiction cases,
under which the court resolves the legal component of the
jurisdictional element and submits the factual component to
the jury. See, e.g., Jones, 480 F.2d at 1139 (“[T]he court’s
instruction correctly left the factual element – the locus of the
crime – to the jury, while reserving the question of law –
whether the federal government had accepted jurisdiction –
to itself.”). When a defendant’s status as an Indian under
18 U.S.C. § 1153 is contested at trial, the court should first
                 UNITED STATES V . ZEPEDA                    41

determine, as a matter of law, that the defendant’s Indian
tribe is federally recognized. (If the tribe is not federally
recognized, of course, the court lacks subject matter
jurisdiction. See Maggi, 598 F.3d at 1078; Heath, 506 F.2d
at 19.) The court should then instruct the jury to decide, as a
factual matter, whether the defendant has a blood connection
and sufficient non-racial ties to that federally recognized
tribe, as required by the two-prong test we established in
Bruce, 394 F.3d at 1223–24.

    The jury in this case did not receive such an instruction,
and effectively received no instructions at all on the Indian
status element. (The district court merely told the jury that in
order to convict the jury had to find “the defendant is an
Indian.”) This was error. But because Zepeda did not object
to the deficient instruction on Indian status, we review only
for plain error, which requires (among other things) an error
affecting Zepeda’s substantial rights. See Fed. R. Crim. P.
52(b); United States v. Olano, 507 U.S. 725, 731–32 (1993).
Under the plain error test, even when the court’s instructions
omit an element of the offense altogether, reversal does not
follow if uncontroverted evidence supporting the element was
introduced at trial. United States v. Smith, 282 F.3d 758,
766–67 (9th Cir. 2002).

    No plain error occurred here. At trial, the government
introduced uncontroverted evidence satisfying the factual
component of the Indian status element: Zepeda’s certificate
of tribal enrollment in the Gila River Indian Community.
That certificate established: (1) that Zepeda has blood
ancestry of “1/4 Tohono O’Odham” (thus satisfying the first
prong of the Bruce test); and (2) that he was an enrolled
member of the Gila River Indian Community (thus satisfying
the second prong of the Bruce test). See, e.g., United States
42               UNITED STATES V . ZEPEDA

v. Torres, 733 F.2d 449, 455 (7th Cir. 1984)
(“[U]ncontradicted evidence of tribal enrollment and a degree
of Indian blood constitutes adequate proof that one is an
Indian for purposes of 18 U.S.C. § 1153.”); United States v.
Dodge, 538 F.2d 770, 786–87 (8th Cir. 1976) (enrollment and
1/4 Indian blood sufficient); United States v. Lossiah,
537 F.2d 1250, 1251 (4th Cir. 1976) (enrollment and 3/4
Indian blood sufficient).

    The district court did not determine whether the tribes at
issue here are recognized by the federal government. But
they are, and they were so at the time of trial. The Tohono
O’odham Nation of Arizona and the Gila River Indian
Community of the Gila River Indian Reservation, Arizona,
both appear on the BIA’s list of federally recognized tribes.
See Indian Entities Recognized and Eligible to Receive
Services from the United States Bureau of Indian Affairs,
74 Fed. Reg. 40,218, 40,220, 40,221 (Aug. 11, 2009); see
also Gila River Indian Cmty. v. United States, 697 F.3d 886,
889 (9th Cir. 2012). Zepeda has not contested the federally
recognized status of either tribe.

    As the majority notes (Maj. Op. at 28 n.18), Zepeda does
contest whether his “1/4 Tohono O’Odham” blood is from the
Tohono O’odham Nation of Arizona. That argument,
however, has nothing to do with the issue that divides the
panel. As I have explained, the court must decide as a legal
matter whether a particular tribe has been federally
recognized, but the jury still determines as a factual matter
whether the defendant has a sufficient blood connection to
that tribe to satisfy the first prong of the Bruce test. There is
no sufficiency-of-the-evidence problem with respect to that
factual issue here: Under Jackson v. Virginia, 443 U.S. 307,
319 (1979), a rational jury could certainly infer that the
                 UNITED STATES V . ZEPEDA                   43

reference in Zepeda’s tribal enrollment certificate to “1/4
Tohono O’Odham” is a reference to the federally recognized
Tohono O’odham Nation of Arizona, particularly since
Zepeda testified that he has lived his entire life in Arizona.
Thus, even if the majority is correct to credit Zepeda’s
argument—concocted for the first time after oral
argument—that his “1/4 Tohono O’Odham” blood might be
derived from Tohono O’odhams living in Mexico, the
majority errs by granting Zepeda a judgment of acquittal
rather than reversing and remanding for a new trial. See
United States v. Affinito, 873 F.2d 1261, 1264–65 (9th Cir.
1989).

    But the majority is wrong to credit Zepeda’s argument in
any event, because the Tohono O’odham Nation of Arizona
has historically encompassed, from the outset of federal
recognition, members of the tribe residing in Mexico. “The
recognition of the Nation by the federal government [in 1937]
followed a census conducted on both sides of the border in
which the United States affirmed the Nation’s definition of
membership based on O’odham blood. Members were
included in a ‘base roll,’ a document that formed the basis of
recognition for their Nation by the United States based on
their blood, not on their country of citizenship, residency, or
birth.” Courtney E. Ozer, Make It Right: The Case for
Granting Tohono O’odham Nation Members U.S. Citizenship,
16 Geo. Immigr. L.J. 705, 709 (2002) (footnote omitted).

    The only question that remains is whether reversal is
required because the district court failed to make the required
legal ruling on the tribes’ federally recognized status. We
dealt with a similar situation in United States v. Warren,
984 F.2d 325 (9th Cir. 1993). There, the defendant was
charged with a crime requiring commission of the offense
44                UNITED STATES V . ZEPEDA

within the special maritime and territorial jurisdiction of the
United States. Id. at 327. The government alleged that the
defendant committed the offense on an army base called
Schofield Barracks. The district court failed to determine, as
a matter of law, that Schofield Barracks was within the
special territorial jurisdiction of the United States, and further
failed to instruct the jury that it had to find, as a factual
matter, that the crime was committed at Schofield Barracks.
Id. We held that the district court’s wholesale failure to
instruct the jury on the jurisdictional element was not plain
error. As a factual matter, the government introduced
uncontroverted evidence that the defendant committed the
crime at Schofield Barracks. And, as a legal matter, we held
that an army base is within the special territorial jurisdiction
of the United States. Id. at 328.

    Our decision in Warren confirms that the district court’s
error in this case did not affect Zepeda’s substantial rights.
Uncontroverted evidence established as a factual matter that
Zepeda has a blood connection to one tribe and sufficient
non-racial ties to another, satisfying both prongs of the Bruce
test. And, as a matter of law, both tribes are federally
recognized. That should be the beginning and end of our
analysis here. I would affirm Zepeda’s convictions and
therefore must respectfully dissent.
