Metropolitan News-Enterprise


Wednesday, August 24, 2005


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Ninth Circuit Rejects Challenge by Indian Activist, Says Navajo Court Has Power to Try Nonmember


By a MetNews Staff Writer


An Indian tribe has constitutional and statutory authority to try an Indian who is not a tribal member for a crime committed on the tribe’s reservation, the Ninth U.S. Circuit Court of Appeals ruled yesterday.

Ruling in an eight-year-long jurisdictional dispute between the Navajo Nation and activist/actor Russell Means, the panel said the tribe can try Means on charges of threatening and battery resulting from an alleged altercation with two men, including Means’ then-father-in-law, a member of the Omaha tribe.

Means argued that as an Oglala Sioux, he was not subject to Navajo jurisdiction. Means was living near Chinle, on the Navajo reservation in Arizona, while married to Gloria Grant, his fourth wife, from whom he separated around that time.

Means has since lived in New Mexico, where he attempted to run for governor in 2002 but was disqualified as a result of a felony conviction, and in South Dakota. The felony conviction resulted from a South Dakota courthouse riot in 1975, but Means, who served more than a year for the offense, was pardoned by then-Gov. Bill Janklow before Janklow left office in January 2003.

Means is best known as one of the founders and leaders of the American Indian Movement, and came to prominence during the siege at Wounded Knee in the early 1970s. Twenty years later, he launched a film career by playing the title role in The Last of the Mohicans.

Before trial in the Chinle District Court of the Navajo Nation, Means moved to dismiss the charges for lack of jurisdiction, relying primarily on the U.S. Supreme Court decision of Duro v. Reina, in which the high court said that tribal courts could not try non-members, at least in the absence of congressional authority.

Congress subsequently passed the 1990 amendments to the Indian Civil Rights Act, including what is sometimes referred to as the “Duro fix,” permitting tribal courts to try non-member Indians, but not non-Indians.

Means argued that the “fix” violates the right to equal protection under the Fifth Amendment of the Constitution. He also contended the Navajo Nation had explicitly given up any such authority in the Treaty of 1868.

But U.S. District Judge Earl Carroll rejected those arguments, as did the Ninth Circuit.

The disparate treatment of nonmember Indians and non-Indians, Judge Andrew Kleinfeld wrote, has a rational basis—the desire of Congress to promote Indian self-government. The distinction, he added, is a political, rather than a racial, classification so no more than a rational basis is required to uphold the statute.

The judge explained:

“The 1990 Amendments to the Indian Civil Rights Act were meant to protect Indians, as well as others who reside in or visit Indian country, against lawlessness by nonmember Indians who might not otherwise be subject to any criminal jurisdiction. As the Navajo Supreme Court notes, because of intermarriage there are a significant number of Indians who are not Navajos but live on the Navajo reservation. It is a matter of ordinary experience that many people are not at their best when their marriages break up, so misdemeanor jurisdiction over nonmember Indians is rationally related to Indian self-government in an area where rapid and effective tribal response may be needed.”

The alternative, Kleinfeld wrote, would be to allow such crimes to go unpunished, because Arizona lacks jurisdiction over crimes committed on Indian lands and federal authorities can only prosecute under the Major Crimes Act, which does not cover misdemeanors.

The judge also rejected the claim that the Treaty of 1868, ending the war between the United States and the Navajo Nation, barred prosecution. The treaty, the judge explained, requires that “bad men” among the Navajo be turned over to the federal authorities for prosecution.

In this case, however, there was no demand by the federal government, Kleinfeld wrote. And the treaty, he added, has never been interpreted to limit the jurisdiction of the tribe to try cases itself.

The case is Means v. Navajo Nation, 01-17489.


Copyright 2005, Metropolitan News Company