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:
Native Sun News: Lakota riders complete journey to Little Bighorn (7/2)
Lakota Country Times: Newspaper takes home top honors at NAJA (7/2)
Brandon Ecoffey: Delivering stories that matter to Indian Country (7/2)
Ivan Star: Creating a culturally appropriate economy at Pine Ridge (7/2)
Elizabeth Hawksworth: Being patriotic and being Native in Canada (7/2)
Micah A: Blood quantum does not make me any less of an Indian (7/2)
David Shorter: Learning not to speak on behalf of Native peoples (7/2)
Marc Simmons: Legend of Catholic priest saved by grateful tribe (7/2)
Sen. McCain deemed responsible for land swap at sacred Oak Flat (7/2)
Mississippi Choctaw leader comes out on top in unofficial results (7/2)
Bois Forte Band expands economy with second Tim Hortons Cafe (7/2)
Chickasaw Nation hails selection of permanent Indian law chair (7/2)
Cow Creek Band continues to oppose new Coquille Tribe casino (7/2)
Four more tribes in New Mexico enter Class III gaming compact (7/2)
Editorial: Pojoaque Pueblo gets pass on illegal gaming operation (7/2)
Save Oak Flat caravan plans journey to DC to protect sacred site (7/1)
Court reluctantly backs NLRB in Saginaw Chippewa Tribe dispute (7/1)
Native Sun News: Opposition grows to delisting of grizzly bears (7/1)
Lakota Country Times: Reservation counties rank as deadliest (7/1)
Steve Russell: Professor outed as Cherokee fraud once again (7/1)
Harlan McKosato: Indian people survive despite mistreatment (7/1)
Marshall Matz: Fight for $380M in Keepseagle funds continues (7/1)
BIA acquires former military site in trust for Ho-Chunk Nation (7/1)
Appropriations bill adds $10M for tribal courts in PL280 states (7/1)
Sen. Murkowski questions definition of 'Indian' for health care (7/1)
South Dakota board won't back name change for sacred peak (7/1)
Fort Peck Tribes take on cost for homes promised by Brad Pitt (7/1)
Hoopa Valley Tribe orders water restrictions as tanks run dry (7/1)
Cherokee Nation certifies results of election for top positions (7/1)
Secretary Sally Jewell reaffirms opposition to racist mascots (7/1)
Virginia tribes hindered by racist policies created by one man (7/1)
Column: Native Code Talkers defended nation with languages (7/1)
Guilty plea for stabbing of BIA superintendent in South Dakota (7/1)
Opposition group rallies over Miccosukee Tribe land-into-trust (7/1)
Pojoaque Pueblo keeps casino open after gaming deal expires (7/1)
Court allows lawsuit for incident at Tonto Apache Tribe casino (7/1)
Navajo Nation Council approves bill to share gaming revenue (7/1)
Soboba Band celebrates 20th anniversary for gaming facility (7/1)
Mashantucket Tribe extends agreement for $1.7B casino debt (7/1)
BIA adopts new policy regarding federal recognition process (6/30)
Supreme Court agrees to resolve another Indian law dispute (6/30)
Patrick Murphy: Star Trek's William Shatner visits Navajoland (6/30)
Yvette Roubideaux: Making progress at Indian Health Service (6/30)
Native Sun News: Wambli Ska group shares culture with youth (6/30)
Lakota Country Times: Oglala Sioux leader pushes zeolite mine (6/30)
Native Sun News: BLM to update plan for land near Bear Butte (6/30)
Alex Jacobs: Fake Indians damage the real Indian community (6/30)
Sarah Sunshine Manning: Even toys carry harmful messages (6/30)
Ponca Tribe sends twelve youth to White House conference (6/30)
Lobbyists met at White House to discuss federal recognition (6/30)
Alaska Native man finally out on parole in 1997 homicide case (6/30)
Gyasi Ross gets nod for 'Marlon Brando' single off new release (6/30)
Washington governor supports repatriation of Kennewick Man (6/30)
Morongo Band interested in acquiring Colt gun manufacturer (6/30)
Gila River Indian Community files suit to protect sacred place (6/30)
Lac Du Flambeau Band man sentenced for abusing young girls (6/30)
Sault Tribe protected by sovereign immunity in casino dispute (6/30)
Pojoaque Pueblo at critical juncture with Class III gaming deal (6/30)
BIA releases scoping report for Coquille Tribe's Class II facility (6/30)
Local leaders talk Tohono O'odham Nation casino controversy (6/30)
Editorial: Extend Class III casino compact with Seminole Tribe (6/30)
Rep. McCollum vows support for Tribal Labor Sovereignty Act (6/29)
BIA issues long-awaited update to federal recognition process (6/29)
Native Sun News: Tribal youth share traditions and technology (6/29)
Lakota Country Times: Treaty council slams mine at Pine Ridge (6/29)
Mark Trahant: Action plan needed for health in Indian Country (6/29)
Mary Annette Pember: Sharing stories from boarding schools (6/29)
Terese Marie Mailhot: Let Native people speak our own voices (6/29)
Dina Gilio-Whitaker: Race frauds are not new in Indian Country (6/29)
Bryan Terry: Honor Sequoyah with statue at Tennessee capitol (6/29)
Steven Newcomb: Indian law and policy based on domination (6/29)
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.