As a result, the standard of review in this case rises to the at least theoretically more stringent “plain error” standard. We say “theoretically” because, while plain-error review appears more stringent in theory, it is hard to comprehend how a standard can be any more stringent in actuality than that ordinarily applied to sufficiency-of-the evidence challenges. As we observed in Vizcarra-Martinez:
"[U]nder our ordinary test — the standard applicable when the defendant makes all the proper motions — we cannot reverse unless there is a clear showing as to insufficiency: we must affirm if any rational trier of fact could have found the evidence sufficient. Thus, it is difficult to imagine just what consequences flow from our application of the [plain error] standard[ ] or to envision a case in which the result would be different because of the application of one rather than the other of the standards."
Our case law, however, has repeatedly parsed the increasingly thin differences between standards of review, slicing ever finer and finer distinctions whose practical consequences are seemingly minuscule, if not microscopic. As a result of these exercises in abstraction, our standards of review continue to multiply, the relationships between them growing more obscure with each iteration. Still, because an existing decision of this court has clearly held that plain-error review applies when a jurisdictional element is the subject of an unrenewed motion for acquittal, we dutifully apply that standard in this case.
The underlying opinion concerns almost the same subject as Plessy v. Ferguson. The issue in that case was initially, "when is a man black?" This case asks the question, "when is a man an Indian?"
On appeal the Court finds that he is not an Indian within the meaning of the federal law governing crimes committed by Indians in Indian Country with which he is charged, so the defendant is acquitted of the crime that a jury found that he had committed.
The man was Indian by descent (his mother was 63/64th Indian with descent from one Canadian and one American tribe), but did not have “tribal or federal government recognition as an Indian.” This is determined under a four factor test, with the factor consisting of, “in declining order of importance, evidence of the following: ‘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.”
In considering the facts as applied to this test:
Taken in the light most favorable to the government, the record reveals the following facts related to Cruz’s Indian status:
1. Cruz is not an enrolled member of the Blackfeet Tribe of Indians or any other tribe.
2. Cruz has “descendant” status in the Blackfeet Tribe as the son of an enrolled member (his mother), which entitles him to use Indian Health Services, to receive some educational grants, and to fish and hunt on the reservation.
3. Cruz has never taken advantage of any of the benefits or services to which he is entitled as a descendant.
4. Cruz lived on the Blackfeet Reservation from the time he was four years old until he was seven or eight. He rented a room in a motel on the reservation shortly before the time of the offense.
5. As a descendant, Cruz was subject to the criminal jurisdiction of the tribal court and was at one time prosecuted in tribal court.
6. Cruz attended a public school on the reservation that is open to non-Indians and worked as a firefighter for the federal Bureau of Indian Affairs, a job that is also open to non-Indians.
7. Cruz has never participated in Indian religious ceremonies or dance festivals, has never voted in a Blackfeet tribal election, and does not have a tribal identification card.
Analyzing this evidence, it is clear that Cruz does not satisfy any of the four . . . factors.
The dissenting opinion argues that eligibility for benefits as an Indian is sufficient even if one does not avail oneself of them.