Amicus Curiae Brief — Arizonans for Official English v. Arizona

In The

Supreme Court of the United States

October Term, 1995

+

ARIZONANS FOR OFFICIAL ENGLISH, ET AL.,

Petitioners,

vs.

ARIZONA, ET AL.,

Respondents.

>

On Writ Of Certiorari To The

United States Court Of Appeals

For The Ninth Circuit

+

BRIEF OF THE NAVAJO NATION AS

AMICUS CURIAE IN SUPPORT OF RESPONDENTS

YNIGUEZ AND ARIZONANS AGAINST

CONSTITUTIONAL TAMPERING

*

THe Navajo NATION

Department of justice

Hers YAZZIE

Attorney General

THomas W. Curistie*

Assistant Attorney General

Jupy Leaminc, Attorney

P.O. Drawer 2010

Window Rock, Navajo Nation

(AZ) 86515

(520) 871-6346

*Counsel of Record

——————— eee

COCKLE LAW BRIEF PRINTING CO., (800) 225-6964

OR CALL COLLECT (402) 342-2831

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TABLE OF CONTENTS

INTEREST OF AMICUS CURIAE

STATEMENT OF FACTS

I.

ARTICLE XXVIII VIOLATES THE FIRST AMEND-

MENT OF THE UNITED STATES CONSTITUTION

BY UNLAWFULLY IMPAIRING THE FREE

SPEECH INTERESTS OF THE NAVAJO PEOPLE,

OTHER INDIGENOUS AMERICAN INDIAN

PEOPLE, AND OTHER NATIONAL ORIGIN

GROUPS IN ARIZONA

ARTICLE XXVIII VIOLATES THE FOUR-

TEENTH AMENDMENT OF THE UNITED

STATES CONSTITUTION BY UNLAWFULLY

DISCRIMINATING AGAINST THE NAVAJO

NATION, OTHER AMERICAN INDIAN

NATIONS AND OTHER NATIONAL ORIGIN

oe ee

A. Protection of culture.

B. Provision of services

ARTICLE XXVIII IS PREEMPTED BY FEDERAL

LAW BECAUSE IT CONFLICTS WITH THE

NAVAJO PEOPLE’S RIGHT TO SELF-GOVERN-

MENT, PROTECTED UNDER THE NAVAJO

TREATIES AND APPLICABLE FEDERAL LEG-

ISLATION AND POLICY

CONCLUSION

**

TABLE OF AUTHORITIES

Page

CASEs:

Antoine v. Washington, 420 U.S. 194 (1975)........... 11

Brendale v. Confederated Tribes and Bands of the

Yakima Indian Nation, 492 U.S. 408, 106 L.Ed. 343

(1900) .....cccscscceecceens os eunauunnelaeneeean 12

Bryan v. Itasca County, 426 U.S. 373 (1976)........... 11

Choate v. Trapp, 224 U.S. 665 (1912) ...........0000e 11

Choctaw Nation v. Oklahoma, 397 U.S. 620 (1970)..... 11

Choctaw Nation v. United States, 318 U.S. 423 (1943).... 11

McClanahan v. Arizona State Tax Commission, 411

U.S. 166 (1973)... ccvcvccvicsdcsrenenuann 10, 11, 20, 21

New Mexico v. Mescalero Apache Tribe, 462 U.S. 324

(1065)... cvvveseosceccecsecnhaans ian nanmnnnnEEEE 11

Ramah Navajo School Board, Inc. v. Bureau of Reve-

nee, 456 US. G32 (1008)... vocrcurdecuccoumeaanees 22

Rice v. Olsen, 324 US. 766 CIOGED. «oo cccvctsncsssasen 20

Santa Clara Pueblo v. Martinez, 436 U.S. 49 (1978) .... 12

The Kansas Indians, 72 U.S. (5 Wall.) 737 (1866)...... 20

The New York Indians, 72 U.S. (5 Wall.) 761 (1866) .... 20

The Seneca Lands, 1 Op.Atty.Gen. 465 (1821)......... 10

United States v. Santa Fe Pacific R.R. Co., 314 US.

SOP CIDER)... 0 ..0dcensscudsuaecanuaeneeeeeee 10

Warren Trading Post Co. v. Arizona Tax Commission,

350 U.S. GS (1968)... ccccvescccnsccensaaneresaees 11

White Mountain Apache Tribe v. Bracker, 448 U.S.

BSS (ISGG). sc cccccscesedeneesscesaeddpeaenee 11, 21

TABLE OF AUTHORITIES - Continued

Page

Williams v. Lee, 358 U.S. 217 (1959)............ 1, 12, 21

Winters v. United States, 207 U.S. 564 (1908)......... 11

Worcester v. State of Georgia, 31 U.S. (6 Pet.) 515

ET ER a a er 10, 11, 20

Yniguez, et al. v. Arizonans for Official English, et al.,

PTE, MEEEDcccccccccctccocccccccoccs 4

ConsTiITUTIONS, STATUTES AND REGULATIONS:

United States Constitution,

EE ee ie ceebbceesccceccccccecees 11, 21

ST fh bGbbbvebeecbescovdvcccccccccecces passim

i Mi cechecdessubeccecctoccccccess passim

Treaty of June 1, 1868, United States-Navajo Tribe,

iT iUbt bee deatebedénceeceseccececcs 1, 10, 21

Treaty of September 9, 1849, United States-Navajo

ee eee secre dececenseceeseoccccs 10

nc Bee eh eh ouetsccoccccecescess 10, 20

chide dawsesscoviceeseccecocesees 12

EE Si Eetes Ceweendeecccccncccccescecce 16

i iT ieee eed econdasseeeycssescccccoces 12

ESS EEL SEPP OPPETTTEETETTT ETT TY 12

EE SELES VS FFEPPPETOETELEL TTL TELE TE 4

DEL cchd one auibedcoccccccceccess 9, 12, 17, 22

EEE ANE SEPP POT OT OTUTETETTETETT LTTE 12

BD UB. GE BBG, G0 OBB .. ccc cccscccccccccccccccvcees 18

iv

TABLE OF AUTHORITIES - Continued

Page

42 U.S.C. §§ 301, ef 50g... . 2.6.6 c cece eee e eee n eee eeeees 3

BODE. oo cccdcccssddccocescescessesescesecesctnnenes 12

BOZ1, CF COG. occ ccccccccccccccscecccescsscscsscsces 18

Act of February 27, 1851, c. 14, 9 Stat. 574.......... 10

Arizona Revised Statutes, §§ 36-2901, et seq.........-- 3

Arizona Constitution, Article XXVIII ............ passim

Navajo Nation Code, Title 10, § 111.............05+: 2

Navajo Nation Council Resolution CJY-34-88

(F-ZOGR). .c ccccccvccccccccccccseccncccecescescssess 9

Navajo Nation Council Resolution CO-98-95

CBO-DO-GS) ow ccccccccccccseccccccccesesccccccccssess 9

Navajo Nation Council Resolution CAP-35-96

GOED. «occ cccccscccadccncesccseccesenceaceuetnss 9

Navajo Nation Education Committee Resolution

EC-MY-46-94 (5-27-94) .... 0. ccc cece cece cece eeeeeees 2

Navajo Nation Intergovernmental Relations Com-

mittee Resolution IGRJA-9-96 (1-22-96) ............. 9

Navajo Nation Intergovernmental Relations Com-

mittee Resolution IGRMY-116-96 (5-20-96).......... 6

Rules of the Supreme Court of the United States,

.. PPPTTTTTITITITIT iter te 4

1994-1995 “Arizona State Land Department

Ammmsal Repost” .....ccccccccccccccccccccccsccccess 1

Alison R. Bernstein, American Indians and World

War Il, Univ. of Oklahoma Press (1991)............ 5

Vv

TABLE OF AUTHORITIES - Continued

Page

Felix S. Cohen’s Handbook of Federal Indian Law,

en Gam, Heme Mec cavensncvens<sceete 8, 20, 21

James Crawford, “Endangered Native American

Languages: What Needs to Be Done, and Why,”

19 Bilingual Research J. (Winter 1995)............. 17

James Crawford, Hold Your Tongue: Biligualism

and the Politics of “English Only,” Addison-

Wesley Publishing Co. (1992) ................. 3, 4, 6

Louise Lockard, “New Paper Words: Historical

Images of Navajo Language Literacy,” 19(1)

Am. Indian, 17 (Winter 1998) PER eg PETE LD 15

Sally McClain, Navajo Weapon, Books Beyond

ID, Bn. 66:40 mans Redeem Sinnans ie 6

Navajo Nation Division of Community Develop-

ment, 1990 Census Population and Housing

Characteristics of the Navajo Nation (1993) ...... 1,5

Navajo Divison of Education, Statistics on Navajo

(Diné) Education 1994-1995 (May 1995) ............ 8

Navajo Nation President Executive Order, “Relat-

ing to the —— of the Navajo Language as the

Language of Instruction at all Navajo Nation

Head Start Facilities,” (7-31-95) ............. Rbecwad 2

Navajo Times, January 13, 1982..................555 5

Navajo Times, April 14, 1982 ................0-00005- 5

Navajo Times, Jume 20, 1996 ............:ccccceceeees 7

Kent Nerburn, Neither Wolf Nor Dog, New World

BREE CRIED occ ccccvcccscveccsscccccsessseecesec 11

vi

TABLE OF AUTHORITIES - Continued

Doris Paul, The Navajo Code Talkers, Dorrance

Publishing Co. (1973)... . 0... 0-000 e eee e eee eens

Proclamation by the President of the United

States, July 28, 1982, National Code Talkers Day

Proclamation of 1763 by King George III of Eng-

DOE, on woncentecedvéscecchucenaseess cebaseunns

Tom Tso, Former Chief Justice, Supreme Court of

the Navajo Nation, “The Process of Decision

Making in Tribal Courts,” 31 Ariz. L. Rev. 225

CGE « ccccsevcccccveccessesecesecvcscsosoons

United States Bureau of the Census, 1990 Census

of the Population. ....... 2... . 6.6 c cece eee eeee

Unpublished Paper by Esther Yazzie, Navajo Lan-

guage Interpreter for the United States District

Court, District of New Mexico, “Native Ameri-

cans in Native Studies: Toward the End of Mar-

ginalization” (Spring 1995)...............+++5-

Robert Yazzie, Chief Justice, Supreme Court of the

Navajo Nation, “ ‘Life Comes From It,” Navajo

Justice Concepts,” 24 N.M. L. Rev. 175 (Spring

GORE cc cwcnccccccscoucecesnsocsuseorcsesesese

Page

INTEREST OF AMICUS CURIAE

This case concerns Article XXVIII of the Arizona

Constitution which declares English to be the “official

language” of the state and requires all Arizona officials

and employees performing Government business to “act”

only in English.’ In effect, Arizona seeks to impose

“English Only” requirements on sovereign Indian tribes

located within the boundaries of the State,? including one

of the largest American Indian tribes, the Navajo Nation.

The Navajo Nation is a federally recognized Indian

tribe, comprised of more than 200,000 members and occu-

pying approximately 25,000 square miles of trust lands

spanning 11 counties in three states, Arizona, New Mex-

ico, and Utah.* The Navajo Nation exercises nearly exclu-

sive jurisdiction within its territorial boundaries, and

provides a wide variety of governmental services

throughout its jurisdiction.

' Section 1(2) states that English “is the language of the

ballot, the public school and all government functions and

actions.”

2? According to the 1994-1995 “Arizona State Land

Department Annual Report,” twenty percent of the land in

Arizona is Indian trust lands.

3 Navajo Nation Division of Community Development,

1990 Census Population and Housing Characteristics of the Navajo

Nation (1993), at 28.

The United States recognized the authority of the Navajo

Nation over lands reserved for the Navajo people in the Treaty

of June 1, 1868, United States-Navajo Tribe, 15 Stat. 667. See also,

Williams v. Lee, 358 U.S. 217 (1959).

Article XXVIII directly impacts the free speech of

members of the Navajo Nation who are elected to politi-

cal offices in Arizona and those who are employed by the

State, including teachers in public schools located in the

Navajo Nation or in nearby towns. Article XXVIII also

has the effect of preventing the Navajo Nation from car-

rying out its own laws and policies concerning the preser-

vation and utilization of the Navajo language.* It has

4 10 N.N.C. § 111 Education in Navajo language

The Navajo language is an essential element of the

life, culture and identity of the Navajo People. The

Navajo Nation recognizes the importance of

preserving and perpetuating that language to the

survival of the Nation. Instruction in the Navajo

language shall be made available for all grade levels

in all schools serving the Navajo Nation. Navajo

language instruction shall include to the greatest

extent practicable: thinking, speaking,

comprehension, reading and writing skills and study

of the formal grammar of the language.

1994 Navajo Nation Long-Range Navajo Language Goals,

established by Resolution EC-MY-46-94 (May 27, 1994), of the

Education Committee of the Navajo Nation Council:

It is the policy of the Navajo Nation to work towards

the acceptance of the Navajo language in all areas of

contemporary Navajo life, and the prohibition of the

Navajo language in none.

Navajo will be taught and used in schools as a living

language; students, staff, and parents will use Navajo

as a language of instruction, communication and

interaction.

Navajo Nation President Executive Order, “Relating to the

Usage of the Navajo Language as the Language of Instruction at

all Navajo Nation Head Start Facilities,” July 31, 1995.

destructive cultural consequences similar to the devastat-

ing results of an earlier (now repudiated) federal Indian

policy of assimilation.5 The enforcement provision offers

sweeping opportunities for punishing Navajo public ser-

vice employees who speak Navajo while performing Ari-

zona government busine ».¢

Contract relationships between Arizona and the

Navajo Nation will be necessarily implicated by Article

XXVIII, e.g., development of child support enforcement

agreements for payments under the Arizona Health Care

Cost Containment System (“AHCCCS”), A.R.S. § 36-2901

et seq. and Title XIX of the Social Security Act, 42 U.S.C.A.

§ 301 et seq. In many cases, the State contracts with the

Navajo Nation to provide these services. When the

Navajo Nation acts as an agent for the state to provide

certain services it does so to insure that impacted sectors

of the Navajo Nation effectively receive this assistance.

° Education was considered the cornerstone of

assimilation, the 19th century federal policy which was

premised on “civilizing” young American Indians by forcing

them to speak English and to adopt the ways (including the

language) of the predominant (“civilized”) culture. “Thus began

a federal initiative in cultural genocide, an explicit policy of

remaking the Indian in the white man’s image.” James

Crawford, Hold Your Tongue: Bilingualism and the Politics of

“English Only”, Addison-Wesley Publishing Co. (1992), at 44.

© Enforcement; Standing.

Section 4. A person who resides in or does business in

this State shall have standing to bring suit to enforce

this Article in a court of record of the State. The

Legislature may enact reasonable limitations on the

time and manner of bringing suit under this

subsection.

Article XXVIII acts to destroy the effectiveness of the

Navajo Nation in providing such services, particularly to

those members of the Navajo Nation who would other-

wise be denied assistance because of language issues.

The Navajo Nation is filing this Amicus Curiae brief

pursuant to United States Supreme Court Rule 37(4),

which does not require the consent of the parties.

S

STATEMENT OF FACTS

Long before the first English-speaking immigrants

arrived, American Indian nations were the aboriginal

occupants of this land.” It is estimated that between 500

and 1,000 indigenous tongues were spoken in North

America when white settlers arrived. This number has

been dramatically reduced since that time.? However, the

Navajo language is currently utilized by the vast majority

? Quoting President Franklin D. Roosevelt, who once

remarked, “all of our people all over the country, all except the

pure-blooded Indians, are immigrants or descendants of

immigrants, including those who came over on the Mayflower,”

the 9th Circuit noted that, “this country has historically prided

itself on welcoming [other] immigrants with a spirit of tolerance

and freedom. ...” Yniguez, et al. v. Arizonans for Official English,

et al., 69 F.3d 920, 948 (9th Cir. 1995).

8 Crawford, at 34-35.

* “Linguistic self-determination is also a matter of growing

concern to American Indians. While an estimated 206

indigenous languages still survive in the United States, a

majority of these are in extremely poor health, spoken by

dwindling groups of elders.” Crawford, at 245.

of the Navajo people, including many elders who speak

only Navajo, and is an essential element of the govern-

ment, culture and customs of the Navajo Nation.!°

Ironically, because Article XXVIII has the effect of

discouraging usage of the Navajo language, it has the

potential for destroying an invaluable asset in the preser-

vation of democracy. Thus, rather than protecting democ-

racy (a stated goal of the Article’s proponents), it may

very well have the opposite effect. Utilization of indige-

nous languages, and the Navajo language in particular,

has a distinguished history in the military annals of the

United States. Combat communications using indigenous

languages were an essential aspect of the success of the

United States military efforts during World War II."! Ari-

zona, New Mexico, and the United States have all

acknowledged the critical contributions of Navajo ser-

vicemen in the United States Marines (“Code Talkers”)

who effectively used the Navajo language in coded com-

munications during World War II.!?2 Unlike English lan-

guage codes, the Navajo code was never broken by

10 Navajo Nation Division of Community Development,

1990 Census Population and Housing Characteristics of the Navajo

Nation (1993). %

1! Alison R. Bernstein, American Indians and World War II,

Univ. of Oklahoma Press, (1991), at 46-49.

12 This recognition includes the following proclamations:

Navajo Code Talker’s Day in Arizona on January 30, 1982,

proclaimed by the Arizona Governor. Navajo Times, p. 14,

1-13-82.

Navajo Code Talker’s Day in New Mexico on April 10, 1982,

proclaimed by the New Mexico Governor. Navajo Times, 4-14-82.

National Navajo Code Talkers Day (August 14th — the

anniversary date of the Japanese surrender) proclamation

Japanese cryptologists and was a vital element of the

United States military success in the Pacific.

The Navajo language is integral to an understanding

of Navajo culture.'* Language is the vehicle through

which history, religion, custom and tradition are taught,

and thus is not a neutral instrument, but a conveyor of

values.'5 Navajo religious ceremonies require a profound

signed by the President of the United States on July 28, 1982.

McClain, Navajo Weapon, pp 235-237.

13 See generally, Sally McClain, Navajo Weapon, Books

Beyond Borders (1994); Doris Paul, The Navajo Code Talkers,

Dorrance Publishing Co. (1973).

14 “We, the Navajo people, were very fortunate to

contribute our language as a code for our country’s victory. For

this I strongly recommend we teach our children the language

our ancestors were blessed with at the beginning of time. It is

very sacred and represents the power of life.” Kee Etsicitty,

Code Talker, 3rd Division, quoted in McClain at v.

'S “Navajo elders taught me that language is the controlling

factor in one’s life. It is sacred, and that requires Navajos to

become familiar with their language and how words are

used... . ‘Power’ is a linguistic issue. In the Navajo language,

words are ‘powerful,’ but it is wrong to use them to exert power

over others.” Unpublished Paper by Esther Yazzie, Navajo

Language Interpreter for the United States District Court,

District of New Mexico, “Native Americans in Native Studies:

Toward the End of Marginalization” (Spring 1995).

“Coercive anglicization has taken more from Native

Americans than a set of linguistic skills. It has isolated them

from cultural resources they need to define themselves, leaving

many unprepared to enter a wider society, still far from color-

blind, that is likely to reject them regardless of their English-

speaking ability.” Crawford at 248.

On June 19, 1996, a Memorandum of Understanding was

signed by the Navajo Nation and the Federal National Mortgage

understanding of the language in order to accurately

describe both to whom a prayer is offered, and the appropri-

ate supplication.'® Similarly, an explanation of the complex

Navajo family clan system, through which individuals

understand and define who they are, also requires Navajo

language proficiency.'7 Navajo is the primary language of

the Courts of the Navajo Nation and the principal means of

conveying traditional values and customary law.'8

Article XXVIII forbids Navajo teachers in all public

schools from speaking in the Navajo language to Navajo

school children, and their families, except to teach Navajo

as a “foreign” language or as a means of teaching

English. As a result, Navajo children could be deprived of

Association (“Fannie Mae”), implementing a housing initiative in

the Navajo Nation with standard mortgage and note forms which

require an oral Navajo language translation whenever notice is

given. Fannie Mae thus recognized the critical importance of the

Navajo language in understanding these documents and the rights

and responsibilities conveyed through them. Resolution

IGRMY-116-9%6 of the Intergovernmental Relations Committee of the

Navajo Nation Council (5-20-96).

16 “The Navajo language was given to us by our Great

Spirit and we are to use that [language] to communicate to Him

through prayer.” Harry Tome, Navajo elder and member of the

Native American Church, “NAC to Promote, Preserve, Protect

Our Culture,” Navajo Times, June 20, 1996, at A-5.

17 Robert Yazzie, Chief Justice, Supreme Court of the

Navajo Nation, “ ‘Life Comes From It’: Navajo Justice

Concepts,” 24 N.M. L. Rev. 175, at 182 (Spring 1994).

18 Tom Tso, Former Chief Justice, Supreme Court of the

Navajo Nation, “The Process of Decision Making in Tribal

Courts,” 31 Ariz. L. Rev. 225-36 (1989). “Navajos have survived

since before the time of Columbus as a separate and distinct

people. What holds us together is a strong set of values and

customs, not words on paper.”

critical opportunities to speak and to be spoken to in their

own indigenous language and through that language, to

learn the teachings of the Navajo culture. The resulting

message to Navajo children (i.e., Navajo is a second class

language, school is a place where you must speak

English, not Navajo, use of the Navajo language must be

restricted) is similar to the boarding school teachings of

the late 19th and early 20th centuries, the ultimate result

of which is a modern day initiative in cultural genocide.'?

Currently, two-thirds of Navajo school children attend

public schools in the Navajo Nation, or in border towns.7° A

number of state offices with largely Navajo service popula-

tions are located in the Navajo Nation?! or in nearby towns.

19 “Off-reservation federal boarding schools were founded

in 1879... . [as a means of completely removing Indian youth]

from the family and the barbarism of tribal life... .

Anthropologist Peter Farb described the boarding school

experience:

The children usually were kept at boarding school for

eight years, during which time they were not

permitted to see their parents, relatives, or friends.

Anything Indian - dress, language, religious

practices, even outlook on life ... was

uncompromisingly prohibited.

Felix S. Cohen's Handbook of Federal Indian Law, Michie Co. (1982

Ed.) at 140, n. 126 (citations omitted).

20 Navajo Division of Education, Statistics on Navajo (Diné)

Education 1994-1995, (May 1995) at 164-168. There are 57 public

schools in the Navajo Nation (33 of them in the Arizona portion

of the reservation).

21 According to Navajo Communications Co., Window

Rock, Navajo Nation (Arizona), there are 29 state and county

offices located in the Navajo Nation, providing services

primarily to Navajos.

The Navajo Nation government has repeatedly

expressed opposition to “English Only” initiatives, both

at the state and federal levels.22 Federal policy affirma-

tively supports Indian control of Indian education and

the preservation of indigenous languages as an integral

aspect of tribal self-determination.2 Although one of the

stated exceptions to Article XXVIII is “to comply with

other federal laws,”*4 there is no exception for compli-

ance with tribal laws. The blend of federal Indian law and

22 Navajo Nation Council Resolution CJY-34-88:

Opposing Passage of Proposition 106 which would mandate

English as the official language of the State of Arizona (7-29-88);

Navajo Nation Council Resolution CO-98-95: Requesting the

United States Congress to Oppose the Proposed “English-Only”

Legislation . . . and to Support the Concurrent “English Plus

Resolution,” H.Con.Res. 83. . . . (10-24-95); Intergovernmental

Relations Committee Resolution IGRJA-9-96: Strongly

Opposing the “English Only” Legislation and the Amendments

Intended to have Native Americans accept such legislation. .. .

(1-22-96); Navajo Nation Council Resolution CAP-35-96:

Opposing proposed Congressional Actions Implementing

“English Only” Policies (4-18-96).

2325 U.S.C. § 2011: Policy for Indian control of Indian

education:

(a) Facilitation of Indian control. It shall be the

policy of the Secretary [of the Interior] and the Bureau

[of Indian Affairs], in carrying out the functions of the

Bureau, to facilitate Indian control of Indian affairs in

all matters relating to education.

(b) Consultation with tribes. (1) All actions under

this Act shall be done with active consultation with

tribes.

Native American Languages Act of 1990, 25 U.S.C. § 2901, et

seq.

24 Arizona Constitution, Article XXVIIL, § 3(2)(b).

10

policy makes the exception for such compliance difficult

to interpret. In addition, the combination of tribal, federal

and state law issues in the provision of services to Ameri-

can Indians, makes the likelihood of misinterpretation of

the statutory exception to the detriment of the Navajo

people and other Indians in Arizona almost inevitable.

S

SUMMARY OF ARGUMENT

When first encountered by Europeans, American

Indian people were sovereign under the same principles

of natural law upon which our democratic form of gov-

ernment is founded. From the earliest contact, European

powers, and later the United States, recognized the

national character of Indian tribal governments through

treaties. Treaties between the United States and Indian

tribes,25 and implementing federal legislation,”® provide

that the internal affairs of Indian people shall remain

exclusively within the jurisdiction of the Indian tribal

governments.?” Because treaties with Indian nations were

25 See, e.g., Treaty of September 9, 1849, United States-

Navajo Tribe, 9 Stat. 974; Treaty of June 1, 1868, United States-

Navajo Tribe, 15 Stat. 667.

26 E.g., the Indian Trade and Intercourse Act of June 30,

1834, ch. 161, 4 Stat. 729 (codified as carried forward and

amended in 25 U.S.C. § 177), made applicable in Arizona by the

Act of February 27, 1851, ch. 14, § 7, 9 Stat. 574, 587.

27 McClanahan v. Arizona State Tax Comm’n., 411 U.S. 164,

174-75 (1973) (construing the 1868 Navajo Treaty); United States

v. Santa Fe Pacific R.R. Co., 314 U.S. 339, 347-348 (1941); Worcester

v. State of Georgia, 31 U.S. (6 Pet.) 515, 555, 556-557, 559-561,

581-582 (1832); The Seneca Lands, 1 Op.Atty.Gen. 465, 467 (1821).

11

written in a language foreign to the Indian people,** long-

standing canons of construction require that these

English-language treaties be construed as the Indian peo-

ple themselves understood them,”* that they be given a

liberal interpretation,“ and that ambiguous expressions

be resolved in favor of the Indians.*!

The United States has a trust obligation to American

Indian tribes based upon the relationships established in

these treaties, the Indian Commerce Clause of the United

States Constitution»? which vests exclusive authority

over Indian affairs in the United States Congress, and

federal laws enacted pursuant to such federal congres-

sional authority. This Court repeatedly has acted to

uphold and protect the sovereignty of Indian nations,

particularly the authority of Indian tribal governments to

govern their lands and people free from state interfer-

ence. Federal law and policy strongly support the

28 “That's what our treaties were. Pieces of paper written in

a language we didn’t understand and read to us by people we

didn’t trust.” Kent Nerburn, Neither Wolf Nor Dog, New World

Library (1994), at 139.

2% Choctaw Nation v. Oklahoma, 397 U.S. 620, 630-31 (1970);

Worcester v. State of Georgia, 31 U.S. (6 Pet.) at 581-582.

% Antoine v. Washington, 420 U.S. 194, 200 (1975); Choctaw

Nation v. United States, 318 U.S. 423, 431-32 (1943); Choate v.

Trapp, 224 U.S. 665, 675 (1912).

~ 3) MeClanahan v. Arizona State Tax Commission, 411 U.S. 164,

174 (1973); Winters v. United States, 207 U.S. 564, 576-77 (1908).

2 Art. | § 8, Cl. 3.

% E.g., New Mexico v. Mescalero Apache Tribe, 462 U.S. 324

(1983); White Mountain Apache Tribe v. Bracker, 448 U.S. 136, 142

(1980); Bryan v. Itasca County, 426 U.S. 373 (1976); McClanahan v.

Arizona State Tax Comm'n., 411 U.S. 164 (1973); Warren Trading

12

exercise of inherent sovereign powers of self-government

of Indian people by their elected tribal governments,

including the preservation of tribal history, culture, reli-

gion, and language.™

Article XXVIII violates the First Amendment to the

United States Constitution, by impairing the right of

Indian people to exercise protected speech. It acts to

deprive American Indian people in Arizona of the ability

to preserve and protect the indigenous languages upon

which their tribal cultures, religion and traditions

depend. In addition, Article XXVIII violates the Four-

teenth Amendment to the United States Constitution, by

discri:ninating against American Indian people in Ari-

zona based upon national origin.

Article XXVIII has the effect of frustrating the strong

federal policy supporting preservation of tribal govern-

ments, cultures, and languages. As a result, Article

XXVIII violates the treaties between the United States and

Indian nations and the federal legislation implementing

those treaties.

Post Co. v. Arizona Tax Commission, 380 U.S. 685 (1965); Williams

v. Lee, 358 U.S. 217 (1959).

™ Indian Reorganization Act of 1934, 25 U.S.C. §§ 461-479;

Indian Civil Rights Act of 1968, 25 U.S.C. §§ 1301-1341; Indian

Self-Determination and Education Act of 1975, 25 U.S.C.

§§ 450-450n; American Indian Religious Freedom Act, 42 U.S.C.

§ 1996 (1978); Bilingual Education Act of 1978, 25 U.S.C.

§§ 3221-3261; Native American Languages Act of 1990, 25 U.S.C.

§§ 2901-2906 (1990); Santa Clara Pueblo v. Martinez, 436 U.S. 49

(1978); Brendale v. Confederated Tribes and Bands of the Yakima

Indian Nation, 492 U.S. 408, 106 L.Ed. 343, 369 n.3 (1989).

_

13

Article XXVIII results in less effective, more oppres-

sive State government, which specifically, unfairly and

unlawfully negatively impacts American Indian people in

Arizona. Thus, the decision of the Ninth Circuit Court of

Appeals that Article XXVIII is unconstitutionally over-

broad should be affirmed.

*

ARGUMENT

I. ARTICLE XXVIII VIOLATES THE FIRST AMEND-

MENT OF THE UNITED STATES CONSTITUTION

BY UNLAWFULLY IMPAIRING THE FREE SPEECH

INTERESTS OF THE NAVAJO NATION, OTHER

INDIGENOUS AMERICAN INDIAN NATIONS,

AND OTHER NATIONAL ORIGIN GROUPS IN

ARIZONA

Nothing less than the right to speak in an indigenous

tongue is at stake in this case. Article XXVIII seeks to

deny that right to the indigenous people of Arizona, and

to their sovereign Indian governments by commanding

the use of English.°5 In hundreds of State offices and

public schools located within the Navajo Nation, Navajo

employees are prohibited from speaking to Navajo con-

stituents, students and their families in the Navajo lan-

guage. It could not be more obvious that the denial of

such speech is a profound violation of the free speech

3% Article XXVIII unlawfully impairs the free speech

interr sts of a significant portion of the indigenous population

served by the State. According to the 1990 U.S. Census, there are

203,527 indigenous natives in Arizona who are age 18 and older,

comprising nearly 6% of the State’s voting population.

14

interests of the Navajo people. Such singling out of lan-

guages unique to national origin groups in Arizona is

unlawfully overbroad, in violation of both the First and

Fourteenth Amendments of the United States Constitu-

tion.

Scenario One: Arizona State office located in the

Navajo Nation, where State employee who is a Navajo

speaker cannot explain state benefits in the Navajo lan-

guage to elderly Navajos in need of state services.

Scenario Two: In an Arizona public school located in

the Navajo Nation, a history teacher who is a Navajo

speaker cannot explain Navajo history to Navajo students

in the Navajo language.

Scenario Three: An Arizona public school teacher or

administrator who is a Navajo speaker cannot speak in

Navajo to parents or grandparents of a Navajo student

with troubled behavior.

Scenario Four: An elected state official who is Navajo

with a majority Navajo constituency cannot speak in

Navajo to his own constituents.

Scenario Five: The Navajo Nation cannot use the

Navajo language when explaining to members of the

Navajo Nation the state (and federal) benefits available as

a result of a contract to provide services.

In each of these scenarios the State message is inev-

itably bound to be “garbled and distorted,” the exact

opposite result claimed by Petitioners. Efficiency, effec-

tiveness, accuracy and the preservation of unity are sacri-

ficed, ultimately resulting in the destruction of diversity

and the mediocritization of America.

15

Historically, the Navajo language is an oral language,

with the first Navajo orthography developed in the late

1880s.% Because many Navajos do not read or write the

Navajo language, the Navajo Nation is not seeking the

written publication of State documents in Navajo. It is the

overbroad (absolute) denial of oral Navajo discussions by

elected officials and employees of State services and the

ability to use the Navajo language as a medium of

instruction in public schools throughout the Navajo

Nation as well as in neighboring communities which

inflict irreparable harm.

The Navajo Nation is unquestionably harmed by

Article XXVIII's suppression of the right of employees of

the State to utilize languages other than English in pro-

viding services to its citizens. And when denial of such

speech takes place on lands reserved by treaties which

protect tribal self-determination, federal policies are also

implicated.

Il. ARTICLE XXVIII VIOLATES THE FOURTEENTH

AMENDMENT OF THE UNITED STATES CON-

STITUTION BY UNLAWFULLY DISCRIMINAT-

ING AGAINST THE NAVAJO NATION, OTHER

AMERICAN INDIAN NATIONS AND OTHER

NATIONAL ORIGIN GROUPS

Article XXVIII violates the Equal Protection Clause of

the Fourteenth Amendment to the United States Constitu-

tion, which provides that “(n)o state shall . . . deny to any

%¢ Louise Lockard, “New Paper Words: Historical Images of

Navajo Language Literacy,” 19(1) Am. Indian Q. 17, at 21

(Winter 1995).

16

person within its jurisdiction the equal protection of the

laws.” That command is violated when a state’s constitu-

tion renders some persons ineligible for “the . . . pro-

tection of the laws” from an entire category of harm.

Here, the State’s constitution absolutely precludes the

usage of indigenous languages in “all government func-

tions and actions.” The harm is the impending loss, not

only of indigenous languages, but the culture, custom

and traditions which form the foundations of American

Indian tribal governments and which depend upon the

languages for their very definition. Arizona has set apart

American Indian tribes and other national origin groups

by declaring that only English may be used by

employees of the State when conducting State business.

A. Protection of culture

Article XXVIII forbids Navajo teachers in the 33 pub-

lic schools (with a majority of Navajo students) located

on the Navajo Reservation or in public schools in nearby

communities from speaking to Navajo students, and their

families, in the Navajo language, except (1) when teach-

ing Navajo as a “foreign” language or (2) as a tool for

teaching English. As noted above, two-thirds of all

Navajo students are in these public schools.*”

37 The Johnsofi-O’Malley Act of 1934, 25 U.S.C. §§ 452-454,

authorized the federal government to contract with states for,

the education of American Indians, inter alia. Since Article

XXVIII doesn’t interfere with federal programs, American

Indian students attending public schools may receive more

training in native culture and language because tribal

governments require this type of teaching.

17

In 1990, Congress found thaf, “there is convincing

evidence that student achievement and performance,

community and school pride, and educational oppor-

tunity is clearly and directly tied to respect for, and

support of, the first language of the child or student{,}”

and declared it the policy of the United States to,

“encourage and support the use of Native American lan-

guages as a medium of instruction.”** (Emphasis added.)

Article XXVIII clearly violates this federal policy and

unlawfully discriminates against the Fourteenth Amend-

ment rights of the Navajo people.

Article XXVIII denies the Navajo Nation the right to

implement its own educational law and policy to pre-

serve and protect Navajo culture by utilizing the Navajo

language in all schools located within the Navajo

Nation's jurisdiction. Implementation of Tribal law and

policy is particularly important because of an erosion of

Navajo language skills in the younger generations.*?

B. Provision of services

Article XXVIII forbids Navajo employees of the State

from speaking to Navajo people in the Navajo language.

In State offices located throughout the Navajo Nation and

in nearby communities, the result is either the ineffective

provision of services, or a denial of services altogether to

monolingual members of the Navajo Nation, and those

36 25 U.S.C. § 2901(6), § 2903(3).

% James Crawford, “Endangered Native American

Languages: What Needs to Be Done, and Why?” 19 Bilingual

Research J. 17-38 (Winter 1995).

18

with limited proficiency in English. Those most likely to

be harmed are often the ones most likely to be in need of

State services: Navajo elders.

Article XXVIII forbids the Navajo Nation, when act-

ing as an agent of the State for the provision of federal or

State services, from using the Navajo language in commu-

nications with its own citizens. Tribal governments are

singled out as the only governmental entities in Arizona

denied the use of their own indigenous languages in

providing these services.

One of the most insidious effects which the Article

XXVIII may have in Arizona is the impact on services

provided by tribal governments through contracts with

the State of Arizona. There are Arizona programs, funded

by state and federal funds, which tribes contract to pro-

vide to their members. The Navajo Nation has several

such contracts with Arizona, particularly in the health

and human services areas.#

The main reason for tribal governments to contract

with the State to offer this assistance is to provide more

effective, culturally relevant services. The key to provid-

ing these services more effectively is through the use of

the native language. As has been stated, many Navajos,

particularly the elderly, are not fluent in English; their

primary communications are in Navajo. To effectively

receive any assistance offered by the State, the services,

#0 Such programs include: Title III of the Older Americans

Act, 42 U.S.C. § 3021, et seq.: Title XIX of the Social Security Act

(long-term care, serious mental illness, and developmentally

disabled services); and Jobs Training Partnership Act programs,

29 U.S.C. § 1501, et seq., for employment and training.

en

19

including a determination of eligibility,44 must be

explained and delivered in Navajo. The elimination of

Navajo as a language through which services may be

delivered, eliminates any opportunity for these persons

to receive the same State services accessible to those

speaking English, in contravention of the Fourteenth

Amendment to the United States Constitution.

Not only are individuals speaking primarily Navajo

further disenfranchised, but governments, like the

Navajo Nation are put at risk because of the attempt to

make State-provided services more culturally relevant,

and thereby more effective. For the programs which the

Navajo Nation contracts with the State, the Nation takes

on the responsibility to deliver these services. While each

of these contracts specifies that the Navajo Nation is an

independent contractor, the State remains ultimately lia-

ble under equal protection theories for this assistance.

So it is likely that if this constitutional provision is

upheld that the Navajo Nation may be required to deliver

services in English through either agency theories or

simply because certain elements of the State government

7

*! In fact, the Navajo Nation has contracted to fund

counties to hire Navajo speakers to assist in determining

eligibility for Arizona programs, particularly those offered by

AHCCCS (the State medicaid program) since under Arizona

law, counties may make this determination. Although the

constitutional provisions challenged exclude both the

protection of public health and compliance with federal laws, it

is not at all clear that these exclusions would apply, since State-

funds match the federal dollars to be expended and, in any

event, eligibility determinations do not directly or necessarily

impact on the receipt of medical services.

20

may feel constrained to force, as a contract term, the use

of English. This will eliminate any effective service deliv-

ery to the Navajo people, resulting in unlawful discrimi-

nation on the basis of national origin in violation of the

Fourteenth Amendment.

Ill. ARTICLE XXVIII IS PREEMPTED BY FEDERAL

LAW BECAUSE IT CONFLICTS WITH THE

NAVAJO PEOPLE’S RIGHT TO SELF-GOVERN-

MENT, PROTECTED UNDER THE NAVAJO

TREATIES AND APPLICABLE FEDERAL LEGIS-

LATION AND POLICY.

The Proclamation of 1763 by King George III of Eng-

land was the precursor of historic preference for the

exercise of federal authority in the field of Indian affairs.

25 U.S.C. § 177. Early Supreme Court cases consistently

held that state jurisdiction was lacking where Indian

interests were implicated.*

Recent history reflects a continuation of federal pre-

emption policy in Indian country where tribal sover-

eignty is threatened by state incursions.* As th Court

#2 Worcester v. Georgia, 31 U.S. (6 Pet.) 515 (1832); The New

York Indians, 72 U.S. (5 Wall.) 761 (1866); The Kansas Indians, 72

U.S. (5 Wall.) 737 (1866).

* “The policy of leaving Indians free from state jurisdiction

and control is deeply rooted in the Nation’s history.”

McClanahan v. Arizona State Tax Comm'n., 411 U.S. 164, 168 (1973)

(quoting Rice v. Olsen, 324 U.S. 786, 789 (1945)). “[B]road

preemption of state laws in Indian country has been

consistently recognized as a necessary implication from the

federal policy protecting tribal sovereignty.” F. Cohen at 273.

21

often has explained, congressional legislative authority

under the Indian Commerce Clause, “and the ‘semi-inde-

pendent position’ of Indian tribes have given rise to two

independent but related barriers” to the exercise of state

jurisdiction within Indian country. White Mountain Apache

Tribe v. Bracker, 448 U.S. 136, 142 (1980).

First, the exercise of such authority may be pre-

empted by federal law. . . . Second, it may

unlawfully infringe “on the right of reservation

Indians to make their own laws and be ruled by

them.”

Ibid. (quoting Williams v. Lee, 358 U.S. 217, 220 (1959)

(citations omitted)).

Federal treaties and statutes have been consis-

tently construed to reserve the right of self-

government to the tribes, and the Supreme

Court has held that this ‘tradition of sover-

eignty’ is the ‘backdrop against which the appli-

cable treaties and federal statutes must be read.’

Cohen at 273 (citing to McClanahan v. Arizona State Tax

Comm’'n., 411 U.S. 164, 172-73 (1973)). Thus, reading the

1868 Navajo Treaty in accordance with applicable canons

of treaty construction, “together with the tradition of

Indian independence[,]” this Court has held that

it cannot be doubted that the reservation of

“certain lands for the exclusive use of the

Navajos and the exclusion of non-Navajos from

the prescribed area was meant to establish the

lands as within the exclusive sovereignty of the

Navajos under general federal supervision.

McClanahan, 411 U.S. at 174-175.

22

In this case, it is the very heart of tribal sovereignty

which is at risk. Article XXVIII threatens the survival of

American Indian nations by crippling tribal capability to

speak their indigenous languages and to preserve, and

protect their use. This is particularly onerous in the field

of American Indian education, where federal regulation

is both “comprehensive and pervasive,” and thus

clearly preempts State power.

American Indians are keenly aware of the necessity

of linguistic self-determination as an integral aspect of

survival. In 1990, when the Native American Languages

Act was enacted, Congress found that, “languages are

the means of communication for the full range of

human experiences and are critical to the survival of

cultural and political integrity of any people[.|”*

(Emphasis added.) The Navajo Nation’s right to self-

government is impermissibly impaired by Article XXVIII,

a right which is protected under the Navajo treaties with

the United States and applicable federal legislation and

policy. Thus, Arizona’s authority to forbid the use of the

Navajo language is preempted by federal law.

SI

44 See Ramah Navajo School Board, Inc. v. Bureau of Revenue,

458 U.S. 832, 839 (1982), finding subject matter preemption in

the field of education.

45 25 U.S.C. § 2901(9).

23

CONCLUSION

For the foregoing reasons, the Navajo Nation urges

this Court to affirm the judgment below.

Respectfully submitted,

THe Navajo NATION

Hers Yazzie, Attorney General

THomas W. Curistie*

Assistant Attorney General

Jupy Leaminc, Attorney

P.O. Drawer 2010

Window Rock, Navajo Nation

(AZ) 86515

(520) 871-6346

*Counsel of Record

July 26, 1996