indianz.com your internet resource indianz.com on facebook indianz.com on twitter indianz.com on Google+ indianz.com on soundcloud
phone: 202 630 8439
Fredericks Peebles & Morgan LLP
Advertise on Indianz.Com
Home > News > Headlines

printer friendly version
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)

Copyright 2000-2005 Indianz.Com
More headlines...
Stay Connected:
On Facebook

On Twitter

On Google+

On SoundCloud
Local Links:
Federal Register | Indian Gaming | Jobs & Notices | In The Hoop | Message Board
Latest News:
Standing Rock Sioux Tribe sees strong support at pipeline hearing (8/24)
Judge takes aim at Ute Tribe after being kicked off sovereignty suit (8/24)
Lakota Country Times: County seeks compensation for trust lands (8/24)
Native Sun News: Sage remains a special plant for Native peoples (8/24)
Jim Kent: Republicans in South Dakota whine about Black Elk Peak (8/24)
Matthew Fletcher: The Supreme Court and Indian Child Welfare Act (8/24)
Kayla DeVault: Navajo Nation must take a stand on Dakota Access (8/24)
Meskwaki author Ray Young Bear wins award for poetry collection (8/24)
Puyallup Tribe acquires golf course within reservation boundaries (8/24)
Pauma Band might finally see $33.6M payment from gaming case (8/24)
Oneida Nation sends even more gaming revenues to communities (8/24)
Cheyenne River Sioux Tribe seeks prayers ahead of pipeline hearing (8/23)
Second run scheduled to raise awareness of Gold King Mine disaster (8/23)
U.S. Sentencing Commission continues work of tribal advisory group (8/23)
Chemehuevi Tribe wins decision barring county from citing members (8/23)
Lakota Country Times: Oglala Sioux Tribe joins fight against pipeline (8/23)
Native Sun News: Mario Gonzales moves from ball court to law court (8/23)
Brandon Ecoffey: The Horse Nations prepare for battle over pipeline (8/23)
Steven Newcomb: Standing Rock Sioux Tribe challenges domination (8/23)
Simon Moya-Smith: Hillary Clinton remains silent amid pipeline feud (8/23)
Sheriff mistook sacred pipes for pipe bombs at pipeline protest site (8/23)
Charles Carlyle: Issues to consider when doing business with tribes (8/23)
Choctaw Nation starts work on expansion of casino by Texas border (8/23)
Judge rules against Miccosukee citizen in gaming per capita dispute (8/23)
Seneca Nation stopped paying $17M a year for casino police service (8/23)
First Nations ratify agreement for seventh casino in Saskatchewan (8/23)
Tribes prepare for critical hearing in Dakota Access Pipeline lawsuit (8/22)
Hillary Clinton lands more tribal leader endorsements in New Mexico (8/22)
Donald Trump picks Navajo man for agriculture advisory committee (8/22)
Laguna Pueblo signs deal to acquire commercial casino in Louisiana (8/22)
Mark Trahant: Pipeline fight highlights power of political organizing (8/22)
Lakota Country Times: Tribes unite to stop Dakota Access Pipeline (8/22)
Native Sun News: Black Elk Peak honors sanctity of Black Hills site (8/22)
Vi Waln: Our water system is being threatened by energy pipelines (8/22)
more headlines...

Home | Arts & Entertainment | Business | Canada | Cobell Lawsuit | Education | Environment | Federal Recognition | Federal Register | Forum | Health | Humor | Indian Gaming | Indian Trust | Jack Abramoff Scandal | Jobs & Notices | Law | National | News | Opinion | Politics | Sports | Technology | World

Indianz.Com Terms of Service | Indianz.Com Privacy Policy
About Indianz.Com | Advertise on Indianz.Com

Indianz.Com is a product of Noble Savage Media, LLC and Ho-Chunk, Inc.