DENVER (LN) — The Tenth Circuit on Tuesday granted petitions for rehearing en banc in two criminal appeals, vacating prior judgments and setting a schedule for supplemental briefing and oral argument on a pivotal question of federal Indian law.
The full court will decide whether a defendant’s non-Indian status under 18 U.S.C. § 1152 is an essential element that the government must prove or an affirmative defense that the defendant must raise.
The order consolidates United States v. Ruiz, No. 24-2128, from the District of New Mexico, and United States v. Hebert, No. 24-7030, from the Eastern District of Oklahoma.
The court directed parties to address whether the government or the defendant bears the initial burden of production and the ultimate burden of persuasion on non-Indian status.
The order also asks how the “Indian canon” of statutory interpretation should affect the analysis, citing Ramah Navajo Chapter v. Lujan, 112 F.3d 1455 (10th Cir. 1997).
If the en banc court determines defendants must raise non-Indian status as an affirmative defense, the order asks whether the cases should be remanded for retrial.
The United States must file a consolidated supplemental brief within 30 days. Ruiz and Hebert have 30 days after service to file response briefs. The government may file a reply within 14 days.
Oral argument is scheduled for 2 p.m. MDT on August 17, 2026, in Denver. Ruiz and Hebert are allotted 30 minutes collectively, and the United States is allotted 30 minutes.
Chief Judge Neil V. Wake Holmes and Circuit Judges Michael Hartz, Mary Beck Briscoe Tymkovich, Carlos M. Lucero Matheson, Gregory F. Bacharach, Neil V. Wake Phillips, Gregory G. McHugh, Carolyn B. McHugh Moritz, Jerome A. Friedman Eid, Scott S. Carson, Eric D. Rossman, and Carlos F. Federico participated.