# Amicus Curiae Brief — Arizonans for Official English v. Arizona

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 1997
- **Citation:** 520 U.S. 43

## Text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385013_0680%3A35. Public record. Not legal advice.