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The Rise of Tribes and the Fall of Federal Indian Law
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Appeals court opens Means to tribal prosecution
Wednesday, August 24, 2005

American Indian activist and actor Russell Means can be prosecuted by the Navajo Nation for a crime he allegedly committed on the Navajo Reservation, a federal appeals court ruled on Tuesday.

Means, a member of the Oglala Sioux Tribe of South Dakota, has been fighting the Navajo Nation's jurisdiction since 1997. He is accused of threatening and beating his former father-in-law, an Omaha from Nebraska, and threatening another man, who is Navajo.

Means argued the tribe lacked the authority to prosecute him since he is not a member of the Navajo Nation and will never be. He said that a 1990 act of Congress known as the "Duro fix" violated his constitutional rights because it subjects "all Indians," regardless of membership, to the criminal jurisdiction of tribes.

The 9th Circuit Court of Appeals, however, rejected that stance. In a 19-page opinion, a three-judge panel affirmed the legality of Duro fix, which was passed in 1990 in response to a U.S. Supreme Court decision that limited tribal sovereignty.

"'All Indians' plainly includes Indians who are not members of the tribe," Judge Andrew J. Kleinfeld wrote in the unanimous decision. "[I]t is settled law that, pursuant to the 1990 amendment to the Indian Civil Rights Act, an Indian tribe may exercise inherent sovereign judicial power in criminal cases against nonmember Indians for crimes committed on the tribe's reservation," the opinion further stated.

The decision brought a stinging rebuke from Means, one of the most visible Native American activists of the past century. "It goes to prove that American Indians are nothing more than Colonial subjects, subjected to dictatorial rule, and that we are not American citizens," he said in a phone interview from his home near Santa Fe, New Mexico.

The ruling isn't a victory for Indian rights because tribal jurisdiction is tied to an act of Congress, Means argued. "Sovereignty means you are dependent on no one -- that is sovereignty, he said. "Look it up in the dictionary. Sovereignty isn't playing house with the dictatorial regimes of the U.S. government."

Navajo Nation President Joe Shirley Jr. didn't see it that way though. "This decision reinforces the sovereignty of Native nations. That's the way it should be," he said yesterday. "Using sovereignty, we can relate to one another as nations."

"It's unfortunate another government had to find it for us," he added. "But it's a good decision."

In ruling against Means, the 9th Circuit followed a critical decision issued by the Supreme Court last year in the US v. Lara case. By a 7-2 vote, the justices agreed that tribes have the inherent power to prosecute other Indians under the Duro fix.

At the time, however, the high court left open the question of whether tribal criminal prosecution violates the due process and equal protection guarantees of the Fifth Amendment. The majority noted that its ruling was limited to the double jeopardy clause of the Fifth Amendment.

The 9th Circuit appears to settle the outstanding issues. First, the court said the Duro fix doesn't violate the equal protection clause because Indians are a political class, not a racial one. Congress therefore has the power to affirm and recognize tribal sovereignty, the panel said.

"First, recognizing criminal jurisdiction of tribal courts over nonmember Indians furthers Indian self-government," Judge Kleinfeld wrote.

"Second, the reason Congress can recognize the power of a tribe to exercise criminal jurisdiction over a nonmember Indian like Means but not over a nonmember, non-Indian who like Means might become involved in a domestic dispute is ... Indian tribal identity is political rather than racial, and the only Indians subjected to tribal court jurisdiction are enrolled members of tribes, not all ethnic Indians," the decision stated.

Tribal criminal prosecution also doesn't violate due process rights because the Indian Civil Rights Act "confers all the criminal protections on Means that he would receive under the Federal Constitution," the court said. "Thus as a facial matter, Means will not be deprived of any constitutionally protected rights despite being tried by a sovereign not bound by the Constitution," Kleinfeld wrote.

Finally, the court said the Duro fix is consistent with the 1868 Navajo Nation treaty. Means argued that a clause in the treaty dealing with "bad men" requires the tribe to turn him over to the federal government. However, the crime he is charged with is not covered by federal statutes.

"The treaty obligates the United States to arrest and punish offenders against the Navajo, under federal law," the 9th Circuit acknowledged, "but it does not say that the Navajo cannot do so on their own, and there is nothing in the treaty language inconsistent with the concurrent jurisdiction that we have recognized in other contexts."

The court, however, noted that tribal criminal prosecution is limited to members of federally recognized tribes, not to people who are "merely ethnically" Indian.

The Navajo Nation has stated in the past that it fully intends to prosecute Means once the jurisdiction question is settled. The Navajo Nation Supreme Court, on its own, has already concluded that it has the authority to punish Means because he was married to a Navajo tribal member at the time.

Means said he would consider asking a full panel of the 9th Circuit to rehear the case. He said an appeal to the U.S. Supreme Court is possible even though he lacks confidence in the federal system.

"I want to pound the final nail of the coffin of our Colonial existence," he said yesterday. "This ruling, if this stands at the Supreme Court, will definitely separate us from the rest of the America and its Constitution forever."

Get the Decision:
Russell Means v. Navajo Nation (August 23, 2005)

US v. Lara Decision:
Syllabus | Opinion [Breyer] | Concurrence [Stevens] | Concurrence [Kennedy | Concurrence [Thomas] | Dissent [Souter]

Relevant Links:
Russell Means - http://www.russellmeans.com
Navajo Nation - http://www.navajo.org

Related Stories:
Means loses lawsuit against Oglala Sioux election (03/09)
Judge denies tribal jurisdiction over Indian descendant (12/08)
Russell Means sues after losing Pine Ridge election (12/03)
Harjo: Pine Ridge election about character (10/29)
Russell Means arrested for missing court date (10/25)
Russell Means top vote-getter in Pine Ridge primary (10/7)
Russell Means not welcome as Republican either (07/30)
Tribal authority over all Indians still unsettled question (06/23)
Russell Means ready to give up on Republican Party (06/03)
Supreme Court affirms tribal powers over all Indians (04/20)
Thune gains endorsement from odd source: Russell Means (02/05)
Supreme Court hears tribal powers case (01/22)
Supreme Court case on jurisdiction attracts attention (01/08)
DOJ's Supreme Court brief backs sovereignty (7/30)
Tribal jurisdiction faces test before Supreme Court (07/03)

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