Opposition Brief — Means v. Navajo Nation (No. 05-1614)

an The

Supreme Court of the Anited States

,

vw

RUSSELL MEANS,

Petitioner,

V.

NAVAJO NATION, a federally recognized Indian Tribe;

RAY GILMORE, Judge of the Judicial District of Chinle,

Navajo Nation, Arizona; ROBERT YAZZIE,

Chief Justice of the Navajo Nation

ry

vy

On Petition For A Writ Of Certiorari

To The United States Court Of Appeals

For The Ninth Circuit

+

BRIEF IN OPPOSITION

¢

DONOVAN D. BROWN, SR.

Assistant Attorney General

Counsel of Record _

Navajo Nation Department of Justice

Post Office Box 2010

Window Rock, Arizona 86515

(928) 871-6275

Attorney for Respondents

+ meneame ict

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

OR CALL COLLECT (402) 342-2831

QUESTIONS PRESENTED

The Respondents restate the issues before this Court as

follows:

1. Whether the Navajo Nation, exercising its inher-

ent right to prosecute a nonmember Indian, as

recognized and affirmed by the Indian Civil

Rights Act (“ICRA”), 25 U.S.C. §§ 1301-1303,

provides appropriate procedural protections con-

sistent with or greater than those required of the

ICRA.

2. Whether the Navajo Nation, exercising its inher-

ent right to prosecute a nonmember Indian, as

recognized and affirmed by the Indian Civil

Rights Act (“ICRA”), 25 U.S.C. §§ 1301-1303,

without violating the Navajo Treaty of 1868, 15

Stat. 667 and without violating the equal protec-

tion provisions of the United States Constitution.

il

TABLE OF CONTENTS

S Page

III FINI oa ic'deesibccsictesnitbinccickcataccdemtealsats i

FN Oe Gini icitctercscicsennesnszicintdsiebarntnaieaniidctoaees li

ee Oe I virinticiethviiteniecvdapenscedlecdchccetiniiaeadnn tie oe

Summary of Reasons to Deny Petition ....................... 3 1

Statement of Case and Facts ...............cccccccccssereececeeeee es 2

Fe NRE dan LCE BON Oe aera Aa ek Beye OD 28

I. The Congress has Broad Constitutional Ple-

II.

III.

nary Power Over Indian Affairs and is Em-

powered to Legislatively Recognize and Affirm

the Long-Standing Inherent Criminal Juris-

diction of Federally Recognized Indian Tribes

Over Nonmember Indians ......................000ce00000:

The Navajo Nation’s Criminal Prosecution of

Petitioner, a Nonmember Indian, Does Not

Conflict With the Navajo Treaty of 1868...........

Legislation That Clarifies Relationships

Between Individuals and Federally Recognized

Indian Tribes Does Not Violate Equal Protec-

tion Provisions of the United States Constitu-

The Navajo Nation Courts Provide Individuals

With Procedural Protections Consistent With or

Greater Than Those Required by the ICRA.......

TRON «ii vsiscussusnccsbeesinrnniionicncioncheaeientiteammaieuuabidialand

a a a a at ar

ili

TABLE OF AUTHORITIES

Page

CASES:

Babbitt Ford, Inc. v. Navajo Indian Tribe, 710 F.2d

a speabcibbeniiinbonns 6

Choctaw Nation v. Oklahoma, 397 U.S. 620 (1970) ........... 5

Draper v. United States, 164 U.S. 240 (1896)........... cee 8

Duro v. Reina, 495 U.S. 676 (1990)......... ce eeeceee ee eee 4,8,12

Epps v. Andrus, 611 F.2d 915 (1st Cir. 1979)..........cccecee 11

Ex Parte Crow Dog, 109 U.S. 556 (1883) .0.... eee eeeeee ones 8

Fisher v. District Court, 424 U.S. 382 (1976)................ 7,14

Reeble uw. C.5. 423 UB. FIG CAGE) eccicocseccccsscocencssccevsevedocess 8

LaPier v. McCormick, 986 F.2d 303 (9th Cir. 1992).......... 10

Lone Wolf v. Hitchcock, 187 U.S. 553 (1903)................. 3,13

Means v. District Court of the Chinle Judicial

District, 2 Nav. App. R. 528, 26 LL.R. 6083 (Na-

I Fi enicntvna sa cckatesisetendineoinipuicnrpanantenisainieieals Daa :

Means v. Navajo Nation, 432 F.3d 924 (9th Cir.

| ERR NRE SIN TRCN OPM RO PAN He ME, ean DE EPO 2.6:6.23

Mississippi Band of Choctaw Indians v. Holyfield,

109 S. Ct. 1957, 490 U.S. 30, 104 L. Ed. 2d 79

2 FERRE EIR Retna A Ry Ora en RAS REM Be PRS 14

Moe v. Confederated Salish & Kootenai Tribes, 425

ea 14

Morton v. Mancari, 417 U.S. 535 (1974).......0........0.. 3.7, 14

Negonsott v. Samuels, 507 U.S. 99 (1993)..............ceee 8, 22

Oliphant v. Suquamish Indian Tribe et al., 435 U.S.

NE CE diiuakaumeae hace ee oR am 7, 8, 22

iV

TABLE OF AUTHORITIES — Continued

Page

Santa Clara Pueblo v. Martinez, 436 U.S. 49 (1978)........ 11

State of Arizona ex rel. Merrill v. Turtle, 413 F.2d

I i ech os anaduas 6

State v. Sebastion, 243 Conn. 115, 701 A. 2d 13

(1997), cert. denied, 118 S. Ct. 856 (1998)... 10

Talton v. Mayes, 163 U.S. 376 (1896).........cccceseseceseeseees 14

United States v. Antelope, 430 U.S. 641 (1977) .....10, 11, 14

United States v. Begay, 42 F.3d 486 (9th Cir. 1994) ........... 8

United States v. Errol D. Jr., 292 F.3d 1159 (9th Cir.

Ne i iechisidisa sieeshod io uacdsisicaaheasdidlaia ee biinuaseudd 8

United States v. Heath, 1509 F.2d 16 (9th Cir. 1974)....... 10

United States v. Holiday, 70 U.S. (3 Wall.) 407

Sissies palsutdscisadcsdcteusaiciesabdackgscesispuoroundndéedcndiohdueruas: 11

United States v. Keys, 103 F.3d 758 (9th Cir. 1996).......... 10

United States v. Kagama, 118 U.S. 375 (1886)................0. 8

United States v. Lara, 541 U.S. 193 (2004) ........ 4,21

United States v. McBratney, 104 U.S. 621 (1882)............... 8

United States v. Rogers, 45 U.S. (4 How.) 576 (1846)......... 4

United States v. Sandoval, 231 U.S. 28 (19138).........00....... 4

United States v. Wheeler, 435 U.S. 313 (1978)........0000.0.0.... 7

Washington v. Yakima Indian Nation, 439 U.S. 463

PTI ss ihcisc canistcckanceaids las coneuemnamsiansiseeeniaiicasianmpeatoniens 4,13

Washington v. Washington State Commercial Passenger

Fishing Vessel Ass’n, 443 U.S. 658 (1979) 0... ceeeseeee 14

Williams v. Lee, 358 U.S. 217 (1959).............0scssecccerceees 6, 11

TABLE OF AUTHORITIES — Continued

Page

FEDERAL AUTHORITIES:

General Allotment Act, 25 U.S.C. § 331............ cece 13

Indian Child Welfare Act, P.L. 95-608 ..............cceeeceeeeeeeeee 14

Indian Civil Rights Act of 1968, 25 U.S.C. § 1301 et

seq.

adie: Sk eaT CAEN bdbssuiciussaancooqshetenteleibapuatioesavssensinesen 1

ke TR Be. . ORE ERE reroerareecmtnnrenni reer are 10

ee I wicaececsbsinesabesdcosipacetaiaitissimnintatieckintion 10

Ba ear ae chai cickscebdsiesrvadicesuuinceicaccouhcadehaceialoabiitin 18

Rs Se RCN sick eieinndictnerttedehineaiiaiadpniacinbciiaaiecticns 18

SNRs Oe RIN icra sidesicciccchn hcgu konsasdsser baclesbacnacdlgcbrce ines 21

Indian Citizenship Act, 8 U.S.C. § 1401(a)(2).......0 13

Indian Country, 18 U.S.C. § 1151 ........... eens passim

Indian Country Assimilative Crimes Act, 18 U.S.C.

DEE Abc aiuinlaticnkinides buns apichasalenuaigewadiouokc ai emiaeginy saodipinseana 9

Indian Country Crimes Act, 18 U.S.C. § 1152......0.00....0.... 9

Indian Financing Act, 24 U.S.C. § 1451 et seq. .......... i

Indian Major Crimes Act, 18 U.S.C. § 1153.....0.00000000.. 9,10

BN RI BI onic siiseestasentenarnitcitelrceadmitiesleitiemspiibmialbanicie 13

Indian Reorganization Act, 25 U.S.C. § 461... 13

Indian Self-Determination and Education Assis-

tance Act, 25 U.S.C. § 450 et seq................cecesesserseeeeeens 12

Indian Tribal Government Tax Status Act of 1892,

SEEN TIT ine hnisshdsiccenassbuciadibetcasetindoneiiat ebidahiaeiak onatetde: 14

TABLE OF AUTHORITIES — Continued

Page

U.S. Const. Art. I, §8, Cl. 3 (Indian Commerce

GNI siesta cibhipethninnsicehccemiuaccnaitdibs shamaeidaiaa catalerstlcwaas oo iaaaaad 3

U.S. Const. Amend XIV (Equal Protection Clause).......... 13

MISCELLANEOUS:

Art. 1, Navajo Treaty of 1868, 15 Stat. 667............... passim

Ariz. Const. Art. XX, 36 Stat. 557, § 20 oe eeecseeeeeeeees 8

WRB GORGE, AGE, TER, Be OUR GB Docicesccctcsncecevestercrvesesis 8

Utah Const. Art. XXI, §§ 2, 10, 36 Stat. 557, § 2....0.0000.... 8

PUBLICATIONS:

David Getches, Beyond the Law: The Renquist’s

Court’s Pursuit of State’s Rights, Color-Blind

Justice and Mainstream Values, 86 Minn. L.R.

Se Ca SE seracks spevedincisicsecdaseicncariaiaeeccennmaaaon 25

E. Andrew Long, Article, The New Frontier of

Federal Law: The United States Supreme Court’s

Active Divestiture of Tribal Sovereignty, 23 Bluff.

I i Ra I cilehidissertncncrateb ac iebecscprantaibiennioasts 24

Gloria Valencia Webber, The Supreme Court's Law

Decisions: Deviations from Constitutional Prin-

ciples and the Crafting of Judicial Smallpox

Blankets, 5 U. Pa. J. Const.L. 405 (Jan. 2003) ............... 3

Kenneth W. Johnson, Note, Sovereignty, Citizen-

ship, and the Indian, 15 Ariz. L.R. 973 (1974).............. 13

Letter from George Catlin, in 1 Letters and Notes

on the North American Indian 8 (JG Press 1995) ........ 22

.. AEF IN OPPOSITION

SUMMARY OF REASONS TO DENY PETITION

This Court has previously affirmed Congress’ broad

constitutional plenary power to impose “benefits” and

“burdens” on federally recognized Indian Tribes and their

members. Recently the “plenary power” doctrine upheld

Congress’ constitutional authority to remove implied

restrictions prohibiting federally recognized Indian Tribes

from exercising inherent criminal jurisdiction over non-

members Indians. Consequently, current federal law and

federal policy support the Navajo Nation’s prosecution of

Petitioner. The Ninth Circuit Court of Appeals also prop-

erly concluded that the Navajo Treaty of 1868, Art. 1, 15

Stat. 667, and the Indian Civil Rights Act of 1968

(“ICRA”), 25 U.S.C. §§ 1301-1303, are reconcilable and

affirm, rather than prohibit the Navajo Nation’s prosecu-

tion of Petitioner. This decision is consistent with existing

federal policy given the unique political government-to-

government relationship and trust responsibilities of the

United States to the Navajo Nation. In addition, the Ninth

Circuit Court of Appeals decision was correct that the

Navajo Nation courts, “as a facial matter”, provide Peti-

tioner appropriate procedural protections consistent with

those required of the Constitution. Consequently, the

Navajo Nation provides procedural protections greater

than those required by the ICRA. The Court should

therefore deny the Petition because it does not qualify or

otherwise merit review by this Court.

S

-

STATEMENT OF CASE AND FACTS

Respondents incorporate the discussion of the facts in -

the opinion of the Ninth Circuit Court of Appeals (Means

v. Navajo Nation, 432 F.3d 924 (9th Cir. 2005)) and the

discussion of the facts in the opinion of the Supreme Court

of the Navajo Nation (Means v. District Court of the Chinle

Judicial District, 2 Nav. App. R. 528, 26 ILL.R. 6083

(1999)).

+

ARGUMENT

Like smallpox blankets, the Court’s judgments

create an immediate debilitating impact, confu-

sion in Indian Country for tribal governments

and their neighboring governments. The gov-

ernmental neighbors who often work together on

common concerns find that governance is now

unnecessarily complex for tribes especially, gov-

ernmental planning and economic development

have become more problematic. An ordinary exi-

gency, such as an accident somewhere in Indian

Country, with an immediate need for emergency

medical services, fire services, and possibly the

need to arrest an offender, raises questions about

which government has the authority to respond.

The cumulative decisions of the Court do not

engender optimism about the future of tribal

jurisdiction when the cases eviscerate, albeit

incrementally, the authority of the fist sover-

eigns within the borders of the United States.

[Footnote omitted] Like the toxic blankets, the

cases contain unacknowledged elements that in

their maximum force could destroy the tribes as

3

culturally, distinct nations governing their own

lands.’

I. THE CONGRESS HAS BROAD CONSTITU-

TIONAL PLENARY POWER OVER INDIAN

AFFAIRS AND IS EMPOWERED TO LEGISLA-

TIVELY RECOGNIZE AND AFFIRM THE LONG-

STANDING INHERENT CRIMINAL JURISDIC-

TION OF FEDERALLY RECOGNIZED INDIAN

TRIBES OVER NONMEMBER INDIANS

The Petitioner argues that the Congress lacks suffi-

cient authority to impose ICRA burdens on members of

federally recognized Indian Tribes. (Pet. 20). In spite of his

assertion, the question whether Congress has plenary

authority to legislatively “recognize and affirm” inherent

Tribal court jurisdiction over members of federally recog-

nized Indian Tribes has long been affirmed. Lone Wolf v.

Hitchcock, 187 U.S. 533 (1903).

The plenary power of Congress to deal with the

special problems of Indians is drawn both explic-

itly and implicitly from the Constitution itself.

Article I, § 8, cl. 3, provides Congress with the

power to “regulate Commerce * * * with the In-

dian Tribes,” and thus, to this extent, singles

Indians out as a proper subject for separate legis-

lation.

Morton v. Mancari, 417 U.S. 535, 551-552 (1979).

* Gloria Valencia-Webber, The Supreme Court’s Indian Law

Decisions: Deviations from Constitutional Principles and the Crafting of

Judicial Smallpox Blankets, 6 U. Pa. J. Const. L. 405, 409-10 (Jan.

2003).

4

In Duro v. Reina, 495 U.S. 676, 692 (1990), this Court

stated clearly that Congress has “broad authority” to

- “impose burdens and benefits” on federally recognized

Indian Tribes and their members. Recently the Court

found that Congress’ plenary power included the “constitu-

tional power to lift restrictions on the tribes’ criminal

jurisdiction over nonmember Indians.” United States uv.

Lara, 541 U.S. 193, 200 (2004), 124 S. Ct. 1628 (2004).

Unquestionably, Congress has well-established “plenary

and exclusive power” with regard to enacting legislation

that singles out federally recognized Indian Tribes and

their members, Washington v. Yakima Indian Nation, 439

U.S. 463, 470-471 (1979), that provide both benefits and

burdens.

The Congress, then, must have equal authority and

responsibility to clarify relationships between federally

recognized Indian Tribes and individuals. United States v.

Sandoval, 231 U.S. 28, 45-46 (1913) (Congress has “the

power and the duty of exercising a fostering care and

protection over all dependent Indian communities). Ac-

cordingly, the ICRA amendments, in plain language,

simply “recognize and affirm” a constitutionally recognized

right of the Navajo Nation to enact and enforce its own

laws, United States v. Rogers, 45 U.S. 567, 573 (1846), and

clarifies the relationship between federally recognized

Indians and nonmember Indians.

Applying sound federal Indian policy and following

this Court’s interpretation of Congress’ broad constitu-

tional authority over Indian affairs, the Ninth Circuit

Court of Appeals correctly found that “it is settled law

that, pursuant to the 1990 amendments to the Indian Civil

Rights Act, an Indian tribe may exercise inherent sover-

eign judicial power in criminal cases against nonmember

5

Indians for crimes committed on the tribe’s reservation.”

Means, 432 F.3d at 931. :

II. THE NAVAJO NATION’S CRIMINAL PROSE-

CUTION OF PETITIONER, A NONMEMBER

INDIAN, DOES NOT CONFLICT WITH THE

NAVAJO TREATY OF 1868

The Petitioner encourages this Court to decide,

contrary to well established legal principles,’ that the

Treaty of 1868 prohibits the Navajo Nation from exercising

criminal jurisdiction over members of federally recognized

Indian Tribes.’ (Pet. 18-19) The Navajo Nation’s under-

standing is that the authority to regulate activities of non-

Navajos within its territorial jurisdiction was retained

when it signed the Navajo Treaty of 1868 with the United

States.“

* Choctaw Nation v. Oklahoma, 397 U.S. 620, 631 (1970). (“Treaties

with the Indians must be interpreted as they would have understood

them, and any doubtful expressions in them should be resolved in the

Indians’ favor.”)

* “If the bad men among the Indians shal! commit a wrong or

depredation upon the person or property of any one, white, black, or

Indian, subject to the authority of the United States and at peace

therewith, the Navajo tribe agree that they will, on proof made to their

agent, and on notice by him, deliver up the wrongdoer to the United

States, to be tried and punished according to its laws; and in case they

willfully refuse so to do, the person injured shall be reimbursed for his

loss from the annuities or other moneys due or to become due to

them....”

‘ “The Navajo Nation, however, argues that a discussion between

General Sherman and the Navajo Chief Barboncito during the treaty

negotiations expresses an understanding that the Navajo were entitled

to ‘drive out’ raiders from the Ute and Apache tribes who might molest

them, and that the Indian ‘bad men’ clause thereafter meant to confer

(Continued on following page)

6

The Navajo Treaty of 1868 strengthens Navajo Nation

jurisdiction over individuals and their activities within its

territorial jurisdiction. State of Arizona ex rel. Merrill v.

Turtle, 413 F.2d 683, 686 (9th Cir. 1969) (Navajo Nation

retains exclusive jurisdiction over extradition of members

of federally recognized Indian Tribes.) Babbit Ford, Inc. v.

Navajo Indian Tribe, 710 F.2d 587, 597 (9th Cir. 1983)

(Navajo Nation retains civil jurisdiction over non-Indians,

saying that “the reservation of land to the Navajos by

these treaties establishes Navajo lands as within the

exclusive sovereignty of the Tribe under general federal

supervision.”). See also Williams v. Lee, 358 U.S. 217

(1950).

Given the unique political government-to-government

relationship and trust responsibilities of the United States

to the Navajo Nation, the Ninth Circuit Court of Appeals,

while not accepting the Navajo Nation’s understanding,

reached the correct decision that the plain language

within the Navajo Treaty of 1868 and the ICRA can be

reconciled to affirm the Navajo Nation’s long-held inherent

authority to prosecute Petitioner for violating Navajo

criminal law.

As the Ninth Circuit Court of Appeals also observed,

“The United States has not demanded that the Navajo

turn Means over for federal prosecution, and the Navajo,

have chosen to prosecute Means themselves in tribal

court, which the 1990 Amendments to the Indian Civil

Rights Act recognize they have the power to do.” Means,

432 F. 3d at 937.

jurisdiction over nonmember Indians, not remove it.” Means, 432 F.3d

at 936.

7

II. LEGISLATION THAT CLARIFIES RELATION-

SHIPS BETWEEN INDIVIDUALS AND FED-

ERALLY RECOGNIZED INDIAN TRIBES DOES

NOT VIOLATE EQUAL PROTECTION PROVI-

SIONS OF THE UNITED STATES CONSTITU-

TION

The Petitioner suggests thi. the Congress has ex-

ceeded its authority under the Indian Commerce Clause

aad has now violated his equal protection rights because

Congress has singled out a whole race for purposes of

federal legislation. (Pet. 7-10). The legislation actually

focuses on the unique political government-to-government

relationship between the United States and federally

recognized Indian Tribes. As such, the question becomes

whether the ICRA amendments, as they impose a burden

on members of a federally recognized Indian Tribe, are

rationally related, Mancari, 417 U.S. at 555, to the “con-

gressional policy of Indian self-government”, Fisher uv.

District Court, 424 U.S. 382, 390-391 (1976). The ICRA

amendments easily satisfy this requirement.

The United States and the Navajo Nation consecrated

their political government-to-government relationship by

signing the Navajo Treaty of 1868 more than a century

ago. One hundred years later the Court announced that

federally recognized Indian Tribes “possess those aspects

of sovereignty not withdrawn by treaty or statute, or by

implication as a necessary result of their dependent

status.” United States v. Wheeler, 435 U.S. 313, 323 (1978)

[Emphasis added]. Even though the Court recognized the

continued inherent authority of federally recognized

Indian Tribes to prosecute their own members, /d., at

326, the Court held in Oliphant v. Suquamish, 435 U.S.

191 (1978) that federally recognized Indian Tribes were

8

implicitly divested of their inherent power to prosecute

nonindians. Jd. at 206-212 (1978). [Emphasis added]. A

mere twelve years later, the Court again implicitly

divested federally recognized Indian Tribes of inherent

governmental authority when it found that federally

recognized Indian Tribes no longer had criminal jurisdic-

tion over members of other federally recognized Indian

Tribes. Duro, 495 U.S. at 684-696 (1990). [Emphasis

added]. ;

The result of course was certain, there was no sover-

eign with recognized authority to prosecute federally

recognized nonmember Indians for misdemeanor crimes in

Indian Country unless the criminal act fell within applica-

ble federal law. States lacked authority to prosecute

members of federally recognized Indian Tribes for their

criminal conduct in Indian Country, (Ariz. Const. Art. XX,

36 Stat. 557, § 20; N.M. Const. Art. III, 28 Stat. 107, § 3;

Utah Const. Art. XXI, §§ 2, 10, 36 Stat. 557, § 2°) See also

Negonsott v. Samuels, 507 U.S. 99, 103 (1993); Draper uv.

United States, 164 U.S. 240, 242-243 (1896); United States

v. Kagama, 118 U.S. 375, 384 (1886); United States uv.

McBratney, 104 U.S. 621, 623 (1882). The United States,

while it had some authority to prosecute federal crimes in

Indian Country, actually lacked jurisdiction over most

minor crimes committed in Indian Country by members

of federally recognized Indian Tribes. United States v.

Begay, 42 F.3d 486, 498 (9th Cir. 1994); Keeble v. U.S.,

412 U.S. 205, 210-212 (1973); Ex Parte Crow Dog, 109

U.S. 556, 571 (1883); United States v. Errol D. Jr., 292

* Enabling legislation of the States of Arizona, New Mexico, and

Utah renouncing jurisdiction in Indian Country as a requirement for

admission into the Union.

9

F.3d 1159, 1161-1162 (9th Cir. Mont. 2002); Indian Coun-

try Crimes Act, 18 U.S.C. 1152 (Prohibiting federal prose-

cution of crimes committed by members of federally

recognized Indian Tribe against another member of a

federally recognized Indian.); Major Crimes Act, 18 U.S.C.

1153 (Limiting criminal jurisdiction to only fourteen

offenses); Assimilative Crimes Act, 18 U.S.C. 13 (Prohibit-

ing federal prosecution of misdemeanor crimes committed

by members of federally recognized Indian Tribe against

another member of a federally recognized Indian Tribe).

By a simple stroke of a pen, the “smallpox blanket”

was suddenly reintroduced into Indian Country. With

federally recognized Indian Tribes being implicitly

divested of its long-held constitutionally recognized inher-

ent authority to prosecute nonmember Indians; the United

States having only limited authority and lacking sufficient

resources to prosecute misdemeanor crimes in Indian

Country; and, the states being prohibited generally from

prosecuting these Indians, nonmember Indians were

granted clear authority to engage in criminal activities,

especially domestic violence,® while evading prosecution

for their criminal acts.’ The ability to provide appropriate

* According to statistics reported by the Navajo Nation Judicial Branch,

63,127 new civil and criminal cases were filed in Fiscal Year 2005, including

3,484 civil actions, 11,198 criminal actions, and 5,052 domestic violence cases.

Civil and criminal traffic offenses are not included here, nor are offenses

involving juveniles. Judicial Branch of the Navajo Nation, Annual Report,

Fiscal Year 2005 (October 1, 2004 — September 30, 2005) Released March 2006.

" It is not uncommon for the United States Attorney’s Office for the

District of Arizona, the District of New Mexico, and the District of Utah

to decline a case, although working from three separate and distinct

federal prosecutorial] guidelines, because it does not involve “severe

bodily injury or death”, or does not involve a significant amount of

illegal drugs, or does not involve a significant amount of money. It is

(Continued on following page)

10

public safety services was significantly impacted diminish-

ing the quality of life in Indian country.

The Court acknowledged, however, the “ultimate [con

gressional} authority over Indian affairs” and expressly

invited Congress to legislatively remedy the problem. Duro

at 698. Almost immediately, Congress amended ICRA’s

definition of Tribes’ “powers of self-government” with clear

language to include, the inherent power of Indian tribes,

“hereby recognized and affirmed, to exercise criminal juris-

diction over all Indians.” 25 U.S.C. 1301(2). [Emphasis

added]. The legislation went on to define “Indian” to mean

any person subject to criminal jurisdiction as an “Indian” for

purposes of 18 U.S.C. 1153. See 25 U.S.C. 1301(4).

A person meets this definition if he is of Indian ances-

try and enrolled in or affiliated with a federally recognized

Indian Tribe. United States v. Antelope, 430 U.S. 641, 646-

647, n.7 (1977); United States v. Keys, 103 F.3d 758, 761

(9th Cir. 1996). On the other hand, a person who is only of

Indian descent but is not an enrolled member of a feder-

ally recognized Indian Tribe is not an “Indian” for pur-

poses of this definition. LaPier v. McCormick, 986 F.2d

303, 305 (9th Cir. 1999); State v. Sebastian, 243 Conn. 115,

701 A.2d 13 (1997), cert. denied, 118 S. Ct. 856 (1998),

United States v. Heath, 509 F.2d 16, 19 (9th Cir. 1974).

The Petitioner also attempts to compare the NAACP

and its members with members of federally recognized

Indian Tribes in an attempt to identify an equal protection

argument. (Pet. 14). However, while the NAACP may be a

voluntary organization with members and a “political”

agenda, it is not a federally recognized government that

common knowledge that the primary focus of the United States

Attorney’s Office is homeland security and border patrol.

11

possesses a political government-to-government relation-

ship with the United States. The definition of “Indian” for

determining criminal jurisdiction in Indian Country does

not violate equal protection because it is based on a

voluntary political affiliation with a federally recognized

Indian Tribe, not one based on race as the Petitioner

suggests. See Antelope, 430 U.S. at 645-650. United States

v. Holiday, 70 U.S. (3 Wall.) 407, 419 (1866) (the action of

the federal government in recognizing or failing to recog-

nize a tribe has traditionally been held to be a political one

not subject to judicial review.). There can be no “Indian”

without a federally recognized tribe. See Epps v. Andrus,

611 F.2d 915 (1st Cir. 1979). The reason then for subjecting

an individual to criminal jurisdiction in Indian Country is

the person must meet the specific requirements for volun-

tary membership. Santa Clara Pueblo v. Martinez, 436

U.S. 49 (1978); Williams v. Lee, 358 U.S. 217, 220 (1959)

(Federally recognized Indian Tribes have the right to

“make their own laws and be ruled by them.”)

Consequently, federally recognized Indian Tribes, such

as the Navajo Nation, have legislatively created enroll-

ment requirements’ and established procedures that make

* 1 N.N.C. § 701, “The membership of the Navajo Nation shall

consist of the following persons:

A. All persons of Navajo blood whose names appear on the official

roll of the Navajo Nation maintained by the Burer.a of Indian Affairs.

B. Any person who is at least one-fourth degree Navajo blood, but

who has not previously been enrolled &: ~ member of the Navajo

Nation, is eligible for membership and enrol.

C. Children born to any enrolled member of the Navajo Nation

shall automatically become members of the Navajo Nation and shall be

enrolled, provided they are at least one-fourth degree Navajo blood.”

12

Tribal membership completely voluntary’, just as an

individual’s decision to enter into Indian Country and

commit a criminal act is completely voluntary. If an

individual does not care for the benefits or burdens of

voluntary membership in a federally recognized Indian

Tribe then that person has the right to relinquish or

renounce their membership.” See Duro v. Reina, 495 U.S.

676, 694 (1990). Equally important, if an individual does

not care to be subject to the laws of the Navajo Nation

then they have the right not to enter within the territorial

jurisdiction of the Navajo Nation, which has clear and

defined legal boundaries.

The Petitioner admits that he is an enrolled member

of the Oglala Sioux Tribe, a federally recognized tribe.

(Pet. 3-4). As a result, it is his political status as a volun-

tary member of the Oglala Sioux Tribe that subjects him to

Navajo Nation jurisdiction not his race. The Navajo

Nation does not exercise criminal jurisdiction over indi-

viduals simply because they are genetically descendent

from the mongoloid race without consent.”

* 1N N.C. § 751, “Anyone wishing to apply for enrollment in the

Navajo Nation may submit an application pursuant to 1 N.N.C. § 760.

Such application must be verified before a notary public.”

* 1N.N.C. § 705, “Any enrolled member of the Navajo Nation may

renounce his membership by written petition to the President of the

Navajo Nation requesting that his name be stricken from the Navajo

Nation roll. Such person may be reinstated in the Navajo Nation only

by the vote of a majority of the Navajo Nation Council.” According to

records maintained by the Navajo Department of Vital Records, at least

1,417 individuals have voluntarily renounced or relinquished their

membership with the Navajo Nation since 1947.

™ See Saint Francis College v. Al-Khazrayi, 481 U.S. 604 (1987);

Metrobroadcasting v. FCC, 497'U.S. 547 (1990) (question reduced to _

“blood, not background and environment.”

13

If the Petitioner was not a member of a federally

recognized Indian Tribe but yet possessed some minor

amount of genetic “Indian” heritage he could stand all day

long on the top of the highest mountain screaming in his

loudest voice that he was in fact an “Indian” without any

hope of receiving any “benefit” or “burden” received by the

most silent member of a federally recognized Indian Tribe.

The act, therefore, of clarifying the relationship between

federally recognized Indian Tribes and their members

merely clarified the balance of “benefits” and “burdens”

members of federally recognized Indian tribes receive in

Indian Country. This Court has held that the Congress’

broad constitutional authority over Indian affairs includes

the ability to promulgate “legislation that might otherwise

be offensive.” Yakima Indian Nation, 439 U.S. at 500-501.

Accordingly, the Court has upheld other legislation that,

like the ICRA, has provided both “benefits” and “burdens” to

members of federally recognized Indian Tribes. The following

are but a few: Removal Act (removing members of federally

recognized Indian Tribes from their eastern homelands

without their consent), Indian Citizenship Act (granting

federal, and state citizenship through the 14th Amendment,

to members of federally recognized Indian Tribes without

their consent), General Allotment Act (1987) (Distributing

land holdings of federally recognized Indian Tribes among its

members without their consent), See Lone Wolf v. Hitchcock,

187 U.S. 553 (1903), Indian Reorganization Act, 25 U.S.C.

461 et seq., (reversed the affects of the General Allotment Act

and permitted tribes to design legal structures to aid in self-

government), Indian Financing Act of 1974, 24 U.S.C. 1451

” See generally, Kenneth W. Johnson, Note, Sovereignty, Citizen-

ship, and the Indian, 15 Ariz. L.R. 973 (1974).

14

et seq., (established a revolving loan fund to aid Indian

Country development), Indian Self-Determination and

Education Assistance Act, 25 U.S.C., 450 et seq., (authorized

federally recognized Indian Tribes to assume administrative

responsibility for federal Indian programs), Indian Tribal

Government Tax Status Act of 1982, 96 Stat. 2607 (according

federally recognized Indian Tribes federal tax advantages

enjoyed by states), Indian Child Welfare Act, P.L. 95-608, see

Mississippi Band of Choctaw Indians v. Holyfield, 109 S. Ct.

1597, 490 U.S. 30, 104 L. Ed. 2d 79 (1989), Fisher v. District —

Court, 424 U.S. 382, 390-391 (1976) (exclusive Tribal court

jurisdiction over child custody proceedings); Moe v. Salish &

Kootenai Tribes, 425 U.S. 463, 479-480 (1976) (tobacco taxes);

Morton v. Mancari, 417 U.S. 535, 552-554 (1974) (BIA hiring

preference); see also Washington v. Washington State Com-

mercial Passenger Fishing Vessel Ass’n, 443 U.S. 658, 673, n.

20 (1979) (exercise of treaty rights); United States v. Antelope,

430 U.S. 642-650 (1977).

IV. THE NAVAJO NATION COURTS PROVIDE

INDIVIDUALS WITH PROCEDURAL PROTEC-

TIONS CONSISTENT WITH OR GREATER

THAN THOSE REQUIRED BY THE ICRA

Because this Court has determined that the Bill of

Rights does not directly apply to federally recognized

Indian Tribes, Jalton v. Mayes, 163 U.S. 376 (1896), the

Petitioner makes a broad allegation that he is being

unconstitutionally subjected to a nonconstitutional forum -

that does not provide the “full panoply” of procedural

‘g protections required by the United States Constitution.

(Pet. 16-18) This is simply incorrect.

The Navajo Nation’s territorial jurisdiction includes

approximately 27,000 square miles of rural country and

15

limited infrastructure spanning across the states of Arizona,

New Mexico, and Utah. It is one of the largest federally

recognized Indian Tribes within the United States with

255,543 enrolled citizens. (Navajo Nation Vital Records

Office (2001)) Among the quarter million Navajos, almost

170,000, or close to three-fourths of these citizens live within

the territorial jurisdiction of the Navajo Nation. Approxi-

mately 12,000 additional residents of the Navajo Nation are

nonNavajo and there are hundreds of thousands visitors and

guests who travel within the territorial jurisdiction of the

Navajo Nation annually. The median population age is 22,

with a per capita income of $6,804. In addition, 31.9 percent

of tribal housing lacked complete plumbing, 28.1 percent

lacked complete kitchen facilities, and 60.1 percent lacked

telephone services. (United States Census (2000)) The

Navajo Nation’s unemployment rate is estimated at 58

percent. (Navajo Nation Economic Development Office).

Consequently, all the right ingredients for civil disputes and

criminal mischief are present on the Navajo Nation.

To address these issues appropriately, the Navajo

Nation has developed a complex civil and criminal justice

system that provides parties a fair” and neutral forum” to

* 1N.N.C. §3 (1995); “Life, liberty, and the pursuit of happiness

are recognized as fundamental individual rights of all human beings.

Equality of rights under the law shall not be denied or abridged by the

Navajo Nation...”

“ “The right to an impartial judge is an essential element of due

process and the basic right of a criminal defendant, McCabe v. Walters,

5 Nav. R. 43 (1985). The standard for the disqualification of a judge is

that there must be facts which show bias and prejudice, which influ-

ences the judge so that there may not be a fair trial. Estate of Pesh-

Jakai, 3 Nav. R. 180 (Shiprock D. Ct. 1981); Toledo v. Benally, 4 Nav. R.

142 (Window Rock D. Ct. 1983).” Navajo Nation v. MacDonald, 7 Nav.

R. 1, 2 (1992).

16

resolve civil disputes and prosecute crimes. To ensure

that everyone is provided appropriate notice as to what is

expected from them as citizens, visitors and guests, the

Navajo Nation has enacted and published comprehensive

laws that govern individuals and activities within its

territorial jurisdiction.” To help guide the parties through

this complex system, the Navajo Nation has adopted

detailed rules and procedures for governing proceedings

within its courts, including criminal prosecutions.”

The Navajo Nation, as a responsible democratic

government,” has consciously taken appropriate steps to

provide every criminal defendant with broad legal protec-

tions pursuant to the Navajo Bill of Rights.” These rights

are consistent with those provided by state and federal

courts and greater than those required by the ICRA.” The

Navajo Nation Supreme Court has consistently issued

decisions strongly defending these rights, especially as it

applies to the right of criminal defendants to fair proceed-

ings with appropriate procedural safeguards.

* See Titles 1-24 of the Navajo Nation Code.

* The Navajo Nation Rules of Criminal Procedure were adopted by

the Navajo Nation Supreme Court on December 29, 1986 and were

approved by the Judiciary Committee of the Navajo Nation Council on

January 9, 1987 and became effective March 1, 1987.

" The sovereign Navajo Nation has the powers to make laws,

execute its laws, and interpret its laws. The Navajo Nation Council

enacts the laws; the Executive Branch executes those laws; and the

Navajo Nation Courts interprets these laws.

* 1N.NLC. §§ 1-9

“ The Navajo Nation provides appointed counsel to indigent

defendants either from the Navajo Nation Public Defender’s Office or

by requiring pro bono services from members of the Navajo Nation Bar

Association, Inc.

17

Among these rights are the right to a speedy trial”

and public trial, the right to be informed of the nature of

the charges against them, the right against self-

incrimination,” the right to confront witnesses against

them, the right to compulsory process to obtain witnesses

on their behalf, the right to counsel,” and the right to a

* “Under the Navajo Bill of Rights criminal defendants have a

right to a speedy trial. 1 N.N.C. § 6 (2005). In determining whether the

right to a speedy trial has been violated, the court applies four factors:

(1) the length of delay; (2) the reason for the delay; (3) the defendant’s

assertion of the right; and, (4) prejudice to the defendant caused by the

delay. Navajo Nation v. MacDonald, 7 Nav. R. 1, 11 (Nav. Sup. Ct.

1992); Navajo Nation v. Bedonie, 2 Nav. R. 131, 139 (Nav. Ct. App.

1979). The Court interprets these factors in light of Dine’ bi beena-

haz’a’anii. Navajo Nation v. Badonie, No. SC-CV-06-05 slip op. at 4

(Nav. Sup. Ct. March 7, 2006). They are related factors and the Court

must consider them together with the relative circumstances, ‘engaging

in a difficult and sensitive balancing process.’ Jd. Further, ‘the right of a

speedy trial is necessarily relative,’ as ‘it is consistent with delays and

depends upon circumstances, and secures rights to a defendant, but

does not preclude the rights of public justice.’ Jd. at 4-5.” Seaton v.

Greyeyes, No. SC-CV-04-06, slip op. at 5.

™ “We therefore hold that the police, and other law enforcement

entities and agencies, must provide a form for the person in custody to

show their voluntary waiver. They must also explain the rights on the

form sufficiently for the person in custody to understand them. Merely

providing a written English language form is not enough. (citations

omitted). The sufficiency of the explanation in a Navajo setting means,

at a minimum that the rights be explained in Navajo if the police officer

or other interviewer has reason to know the person speaks or under-

stands Navajo. If the person does not speak or understand Navajo, the

rights should be explained in English so the person has a minimum

understanding of the impact of any waiver. Only then will a signature

on a waiver form allow admission of any subsequent statement into

evidence.” Navajo Nation v. Rodriguez, No. SC-CR-03-04.

” “The right to counsel is in the Navajo Bill of Rights including the

right to effective assistance of counsel. This right is also guaranteed by

the Navajo common law. The traditional Navajo “trial” involved affected

individuals “talking” about the offense and the offender to resolve the

problem. The alleged offender had the right for someone to speak for

(Continued on following page)

18

trial by jury” if the offense carries jail-time upon convic-

tion.” See also 25 U.S.C. 1302(6) and (10). Unlike the

several states that place burdens or restrictions on non-

citizen participation in the legal system, the Navajo

Nation also allows nonmembers, including non-Indians,

the opportunity to help develop Navajo law by serving on

juries.”

him. Boos v. Yazzie, 6 Nav. R. 211, 214 (1990). The effectiveness of the

speaker (and there could be more than one) was measured by what the

speaker said. If the speaker spoke wisely and with knowledge while

persuading others in their search for consensus, that indicated effec-

tiveness. If the speaker was hesitant, was unsure, or failed to move

others, that person was not a good speaker and thus was ineffective.

This Navajo culture standard is stronger than that required by the

Indian Civil Rights Act, just as the Navajo courts have gone beyond

that Act by appointing members of the Navajo Nation Bar Association

to provide pro bono defense services to indigents. (citations omitted).

Navajo Nation v. MacDonald, 6 Nav. R. 432, 436 (1991).

* George v. Navajo Tribe, 2 Nav. R. 1 (1979) (criminal defendants

provided prospective Navajo and non-Navajo jurors from Navajo Nation

and Arizona’s Navajo and Apache counties.)

* 1N.N.C. § 7. Rights of accused; trial by jury; right to counsel: In

all criminal prosecutions, the accused shall enjoy the right to a speedy

and public trial, and shall be informed of the nature and cause of the

accusation; shall be confronted with the witnesses against him or her;

and shall have compulsory process for obtaining witnesses in their

favor. No person accused of an offense punishable by imprisonment and

no party to a civil action at law, as provided under 7 N.N.C. § 651 shall

be denied the right, upon request, to a trial by jury of not less than six

persons; nor shall any person be denied the right to have the assistance

of counsel, at their own expense, and to have defense counsel appointed

in accordance with the rules of the courts of the Navajo Nation upon

satisfactory proof to the court of their inability to provide for their own

counsel for the defense of any punishable offense under the laws of the

Navajo Nation.

* 7 N.N.C. § 654. Eligibility of jurors: Any person residing within

the territorial jurisdiction of the Navajo Nation over the age of 18 years,

of at least ordinary intelligence, and not under judicial] restraint, shall

be eligible to be a juror. “The requirement that a jury must be a fair

(Continued on following page)

19

If an individual claims a violation of due process or

equal protection he or she has the right to request judicial

review.” The Petitioner’s case, however, does not raise any

cross-section of the community comes from the United States Supreme

Court ruling in Glasser v. United States, 315 U.S. 60 (1942). The rule

was applied to the states in Duncan v. Louisiana, 391 U.S. 145 (1968).

The standards for the rule are found in Taylor v. Louisiana, 419 U.S.

522 (1975), and they are as follows: 1) juries must be drawn from a

source which is fairly representative of the community, but need not

mirror it; 2) all defendants may assert the right, including people who

are not members of an excluded group (i.e., Indians can challenge the

exclusion of non-Indians from juries); 3) a defendant can prevail by

’ showing a systematic exclusion of distinctive groups of people; but not

an occasional mistaken exclusion. The groups which must not be

excluded include ‘large distinctive groups’ and ‘iJdentifiable segments

playing major roles in the community.’ 2 LaFave & Israel, Criminal

Procedure § 21.2(d) (1984). Those rules will be applied in Navajo

Court.” Navajo Nation v. MacDonald, 6 Nav. R. 432, 434 (1991) “A jury

trial in our Navajo legal system is a modern manifestation of consen-

sus-based resolution our people have used throughout our history to

bring people in dispute back into harmony. Jurors are a part of the

fundamental principles of participatory democracy, where people came

together to resolve issues by “talking things out” Downy v. Bigman, 7

Nav. R. 176, 177-178 (Nav. Sup. Ct. 1995). “Through this process

community members in disharmony are brought back into a state of

hozho. See Navajo Nation v. Blake, 7 Nav. R. 233, 234 (Nav. Sup. Ct.

1996) (discussing purpose of dispute resolution as bringing persons

back into hozho in the context of resolving criminal matters). The

participation of the community in resolving disputes between parties is

a deeply-seated part of our collective identity and central to our ways of

government. As such, we must apply restrictions on the right to a jury

trial narrowly, as they turn us away from our traditional ways of

dealing with harmony. Given the importance of juries, we will interpret

Section 651 to restrict the right to a jury only when such restrictions

are clear. Only if the Navajo Nation Council found it absolutely

necessary, and clearly articulated the types of cases it deemed neces-

sary to restrict the right to a jury trial, will we deny the right to a

litigant that requests it.” Duncan v. Shiprock District Court, No. SC-CV-

51-04 (October 28, 2004).

* “This Court’s standard of review in criminal cases focuses upon

the essential fairness of the proceedings. The Court will examine any

(Continued on following page)

20

procedural issues for review. Aside from his initial pro se

motion to dismiss in the Chinle District Court, the Peti-

tioner has been represented by legal counsel. He has yet to

be formally prosecuted by the Navajo Nation and it is

uncertain he will be because of the significant amount of

time that has lapsed since the alleged incident and the

alleged victims have since been reported to have changed

their minds about the events that occurred and their

desire to prosecute the matter.

The Petitioner does not face any excessive fine or a

large sentence if convicted.” In accordance with Navajo

due process”, the Petitioner continues to be released from

custody on his own recognizance” and he does not allege

error, whether or not it is raised by a defendant, which is plain and

_affects substantial rights, or if review is necessary to avoid grave

injustice.” Navajo Nation v. MacDonald, 6 Nav. R. 432, 433 (Navajo

1991) (citing Navajo Nation v. Platero, 6 Nav. R. 422, 428 (1991)

” At the time of the Petitioner’s arrest, the Navajo Nation had not

adopted the 1986 ICRA amendments authorizing tribes to increase

their penalties from a $500 fine or no greater than six months impris-

onment or both to a $5000 fine or no greater than one-year imprison-

ment or both. As a result, the Petitioner will be facing the lesser

sentencing provisions.

* The Navajo principle of k’e is important to understanding Navajo

due process. K’e contemplates one’s unique, reciprocal relationship to

the community and the universe. It promotes respect, solidarity,

eompassion and cooperation so that people may live in hozho, or

harmony, k’e stresses the duties and obligations of individuals relative

to their community. (Footnote omitted). The importance of ke to

maintaining social order cannot be overstated. In light of k’e, due

process can be understood as a means to ensure that individuals who

are living in a state of disorder or harmony, are brought back into the

community so that order for the entire community can be reestab-

lished.” Atcitty and Begay v. W.R. Dist. Ct., 7 Nav. R. 227, 230, (1996).

* It should be noted that recently the Petitioner found gainful

employment within the Navajo Nation. As an actor, he played a major

role portraying a Navajo boxing coach in the motion picture, “Black

(Continued on following page)

21

any specific procedural defects in his prosecution. More

importantly, he has been provided numerous opportunities

to present his position at various levels and before various

tribunals through habeas corpus proceedings. And should

Petitioner by convicted” and sentenced; he once again has

the right to seek habeas corpus review of the detention, if

any’. 25 U.S.C. 1303.

While this Court in Lara, expressed concerns about a

defendant’s rights being protected in tribal courts, Id. at

207, the Ninth Circuit Court of Appeals found that “as a

Cloud”, that was filmed primarily within the territorial jurisdiction of

the Navajo Nation.

*” “The Navajo Nation must prove each element of each statutory

violation charged beyond a reasonable doubt. The defendant’s innocence

is presumed. 17 N.T.C. § 206, Platero, Nav. R. 422, 429.” Navajo Nation

v. MacDonald, Sr., 6 Nav. R. 432, 442 (1991).

* “A habeas corpus proceeding allows this Court to review whether

a person is being illegally detained. If, based on the allegations in the

defendant's petition, the Chief Justice believes there is a reasonable

likelihood of illegal detention, the Chief Justice issues the writ to have

the defendant produced to the Court. See Thompson v. Greyeyes, No.

SC-CV-29-04, slip op. at 4 (Nav. Sup. Ct. May 24, 2004) (Detention is

illegal if the court that ordered the detention violated that person’s

rights under the Navajo Bill of Rights. See e.g., id. slip op. at 8,

(violation of right against cruel and unusual] punishment); Martine v.

Antone, no. SC-CV-48-02, slip op. at 3 (Nav. Sup. Ct. August 13, 2003)

(same); Pelt v. Shiprock District Court, No. SC-CV-37-99, slip op. at 6-7

(Nav. Sup. Ct. May 4, 2001) (violation of right to liberty). The writ

simply orders the person holding the defendant to appear before the

Court, as the Court may not release the defendant without a hearing

before three justices. See Thompson, No. SC-CV-29-04, slip op. at 4;

Navajo Rules of Appellate Procedure, Rule 14(d) (footnote omitted). At

the hearing, the respondent . . . must justify the detention, Thompson,

slip op. at 4. If the detention is not justified, the remedy is the defen-

dant’s release from the illegal detention. In re H.M., No. SC-CV-63-04,

slip op. at 6 (Nav. Sup. Ct. October 13, 2004).” Seaton v. Greyeyes, No.

SC-CV-04-06, slip op. at 2-3 (Nav. Sup. Ct. March 28, 2006).

22

facial matter, Means will not be deprived of any constitu-

tionally protected rights despite being tried by a sovereign

not bound by the Constitution.” Means, 432 F.3d at 935.

The Navajo Nation, therefore, is providing “the full pano-

ply” of procedural protections to the Petitioner in a man-

ner consistent with those provided by state and federal

courts and greater than those required by the ICRA.

*.

v

CLOSING

As George Catlin, an 18th Century attorney and

famous early American painter of “North American Indi-

ans”, wrote, “Amongst the numerous historians, however,

of these [Indians] they have had some friends who have

done them justice; yet as a part of all systems of justice,

whenever it is meted to the poor Indians, it comes invaria-

bly too late, or is administered at an insufficient distance;

and that too when his enemies are continually about him,

and effectually applying the means of his destruction.”

These words continue to hold true.

As it stands, “Criminal jurisdiction over offenses

committed in Indian Country is governed by a complex

patchwork of federal, state, and tribal law.” Negonsott v.

Samuels, 507 U.S. 99, 102 (1993) (citations omitted);

Oliphant v. Suquamish Indian Tribe, 435 U.S. 191, 206

(1978). Which of these sovereigns have the authority to

prosecute a criminal act in Indian Country largely de-

pends on the nature of the offense, the existence of

applicable law, and whether the victim or the alleged

* Letter from George Catlin, in 1 Letters and Notes on the North

American Indian 8 (JG Press 19985).

23

perpetrator is a member of a federally recognized Indian

tribe.

With the passage of ICRA, as amended, the Congress

properly exercised its broad constitutional authority to

respond to the health, safety and welfare of all citizens,

visitors and guests within Indian Country while providing

members of federally recognized Indian Tribes adequate

procedural protections. The Ninth Circuit Court of Appeals

correctly affirmed the Navajo Nation’s inherent authority

to prosecute the Petitioner, a member of a federally recog-

nized Indian Tribe, applying well-reasoned precedent

interpreting the Congress’ broad constitutional authority

over Indian affairs and considering the procedural protec-

tions provided by the Navajo Nation to criminal defen-

dants.

Should this Court determine that the Navajo Nation

cannot prosecute nonmember Indians, then much like the

smallpox infected blankets that once spread disease and

destruction throughout Indian Country, the health, wel-

fare and safety of citizens, visitors and guests of Indian

Country would be in great jeopardy. An adverse ruling

would once again greatly diminish the quality of life and

opportunity for social, economic, and political development

in Indian Country and leave in its place uncoordinated,

ineffective and inefficient public safety services. Corre-

spondingly, it would foster greater opportunity for crime

and chaos with little or no ability to respond, especially for

acts of domestic violence.

Sons and daughters from almost every federally

recognized Indian tribe throughout Indian Country

proudly serve in every branch of the United States mili-

tary and unselfishly give their lives on foreign soil fighting

24

for the right of others to defend themselves from oppres-

sion.” They should not be required to return to sleep in the

midst of “smallpox blankets” as the inherent rights of

Indian Nations are slowly eroded through the legal fiction

of “implicit divestiture.”

“By re-shaping the definition of tribal sovereignty, the

Court has struck at the heart of governmental independ-

ence for tribes at a time when economies are at their

strongest.... Thus, as the tribes become active players in

the political arena and increasingly able to assert jurisdic-

tional powers, the Court weakened their political bargain-

ing position by undercutting their jurisdictional authority.”

As one writer has noted, “As broad as the extension of

Congressional power over Indian affairs was intended to

* “By 1880, only 250,000 Indians remained and this gave rise to

the “Vanishing American” theory. By 1940, this population had risen to

about 350,000. During World War II more than 44,000 Native Ameri-

cans saw military service. They served on all fronts in the conflict and

were honored by receiving numerous Purple Hearts, Air Medals,

Distinguished Flying Crosses, Bronze Stars, Silver Stars, Distinguished

Service Crosses, and three Congressional Medals of Honor. * * * As the

20th century comes to a close, there are nearly 190,000 Native Ameri-

can military veterans. It is well recognized that historically, Native

Americans have the highest record of service per capita when compared

to other ethnic groups.” American Indians in World War II, http://www.

defenselink mil/specials/nativeamerican01/wwii-html. The Department

of Navajo Veterans Affairs reports that there are presently 11,621

Navajo veterans officially recorded who have served honorably in the

United States military of which 8,175 are still alive. (Department of

Navajo Veterans Affairs)

“ E. Andrew Long, Article, The New Frontier of Federal Law: The

United States Supreme Court’s Active Divestiture of Tribal Sovereignty,

23 Bluff. Pub. Int. L.R. 1, 48 (2005)

25

be, it was not the purpose of the government, in claiming

or exercising that power, to destroy tribal sovereignty.””

4

v

CONCLUSION

The Navajo Nation is a responsible democratic gov-

ernment. While it may pre-date the Constitution and not

be bound by its Bill of Rights, and while there may be

procedural errors from time to time within its judicial

system, the Navajo Nation provides all individuals with an

opportunity to present their claim before a fair and impar-

tial court with appropriate procedural safeguards and in a

manner consistent with its state and federal counterparts,

including review by habeas corpus. If necessary, it is time

for the Court to distinguish the Navajo Nation from other

Indian Nations. The Petition for writ of certiorari should

be denied.

Respectfully Submitted,

DONOVAN D. Brown, SR.

Assistant Attorney General

Counsel of Record

Navajo Nation Department of Justice

Post Office Box 2010

Window Rock, Arizona 86515

(928) 871-6275

* David Getches, Beyond the Law: The Renquist’s Court’s Pursuit

of State’s Rights, Color-Blind Justice and Mainstream Values, 86 Minn.

L.R. 267, 271 (Dec. 2001)