United States v. Hebert.

Nos. 24-7030 & 24-2128. 10/14/2026. E.D.Okla and D.N.M. Judge Matheson. Sexual Abuse of a Minor in Indian Country—Status as Indian or Non-Indian—Affirmative Defense—Burden of Production—Burden of Persuasion—Indian Canon of Statutory Interpretation.

October 5, 2026

Hebert and Ruiz were convicted in separate cases of sexual abuse of a minor in Indian country in violation of 18 USC § 1152. Each case involved an Indian victim, so under United States v. Prentiss, 256 F.3d 971, 980 (10th Cir. 2001) (en banc) (Prentiss II), the prosecution had to prove the defendant was a non-Indian. Both defendants argued on direct appeal that the evidence was insufficient on only this element, and both convictions were vacated. United States v. Hebert, 159 F.4th 777 (10th Cir. 2025); United States v. Ruiz, 164 F.4th 1223 (10th Cir. 2026). The government petitioned for en banc review in both cases, requesting the Tenth Circuit to reconsider Prentiss II’s allocation of the burden to prove the defendant’s Indian status. The Tenth Circuit voted to do so and consolidated the cases for en banc consideration, ordering the parties to brief four issues.

First, the Tenth Circuit asked whether, under § 1152, a defendant’s non-Indian status is an essential element the indictment must allege and on which the government has the initial burden of production, or whether non-Indian status is an affirmative defense the defendant must raise and on which the defendant must bear the initial burden of production. The Tenth Circuit focused on the general rule that exceptions to statutory liability are affirmative defenses, which weighs in favor of holding that a defendant’s Indian status is an affirmative defense in a § 1152 prosecution with an Indian victim. The Tenth Circuit thus overturned Prentiss II in part, holding that in a prosecution under § 1152 where the victim is an Indian, the defendant’s Indian status is an affirmative defense that the defendant must prove.

Second, the Tenth Circuit inquired whether the government or the defendant has the ultimate burden of persuasion on Indian status. Under Dixon v. United States, 548 U.S. 1 (2006), and Smith v. United States, 568 U.S. 106, 110 (2013), the defendant has the burden of production and persuasion to prove the affirmative defense that he is an Indian. Further, the defendant’s peculiar knowledge of Indian status information supports this result. The Tenth Circuit held that the burden of production and persuasion on Indian status should fall on the defendant in a § 1152 prosecution where the victim is an Indian.

Third, The Tenth Circuit asked how the “Indian canon” of statutory interpretation could affect the analysis. Under the Indian canon, federal statutes must be construed liberally in favor of Native Americans, with ambiguities resolved in their favor. The Tenth Circuit did not find § 1152 to be ambiguous in a way that would invoke the Indian canon. It thus did not rely on the canon for the holding in this case.

Lastly, the Tenth Circuit inquired whether, if defendants must raise Indian status as an affirmative defense and bear the initial burden of production, the cases should be remanded for retrial. The Tenth Circuit identified no constitutional limits to prevent retrial. Because Hebert and Ruiz were convicted under the incorrect allocation of proof and lacked notice of their burden to prove their Indian status as an affirmative defense, and because the panel in each case reviewed an evidentiary record developed under the wrong standard for burden of proof on Indian status, further proceedings are necessary.

The panel opinions were vacated. The cases were remanded to the respective panels to determine what bearing the remaining issues the defendants raised on appeal may have on possible retrials in these cases in light of this en banc holding. Depending on the outcome of those proceedings, the panels may remand to the district courts to determine whether each defendant should be retried under the proper allocation of burden on his Indian status.