[Marxism] Russell Means and Navajo Nation justice
hunterbadbear at earthlink.net
Wed Aug 24 09:07:15 MDT 2005
NOTE BY HUNTER BEAR:
Russell Means does not want to face the justice system of Navajo Nation --
and has shown himself willing to scuttle a significant dimension of the
tribal sovereignty of Natives generally [in what's called the United States]
in order to personally escape. But he now has no way around it. This just
issued decision by 9th Circuit is solid and quite consistent with the
established foundations of what is, in Federal Indian Law, called "residual"
or "limited" sovereignty. The 1978 Oliphant decision, while exempting
non-Indians from tribal prosecution [though not from state and Federal
actions] clearly provided that tribal criminal justice systems could deal
with what amounted to misdemeanors committed by Indians of any tribe within
the respective jurisdiction of that particular tribal justice system. [The
Feds, under the Major Crimes Act of 1885, and some states under PL280
, handle felony-type situations. The very aberrant USSC Duro decision
of 1990, an attempted incursion into what remained of tribal sovereignty,
sought to exempt non-member Indians who were not of that particular tribe
but resident therein, from criminal justice coverage by the host tribe.
This decision was properly denounced by practically everyone: tribal
nations, Feds, states. Congress immediately moved to handle this and the
result was the "Duro Fix" which simply went back to the immediate pre-Duro
If all of this seems complicated, it is -- but Native tribal sovereignty,
consistently and badly eroded over the many many decades and generations,
has to be defended [and expanded] at every possible juncture.
The basic answer to all of this is to restore full tribal national
sovereignty -- including full civil and criminal jurisdictional dimensions--
to the Indian Nations.
Bottom line for Russell Means at this point: Navajo tribal justice.
"Navajo Nation President Joe Shirley Jr.: "This decision reinforces the
sovereignty of Native nations. That's the way it should be," he said
yesterday. "Using sovereignty, we can relate to one another as nations."
Yours, Hunter Bear
Indianz.Com. In Print.
Appeals court opens Means to tribal prosecution
Wednesday, August 24, 2005
American Indian activist and actor Russell Means can be prosecuted by the
Navajo Nation for a crime he allegedly committed on the Navajo Reservation,
a federal appeals court ruled on Tuesday.
Means, a member of the Oglala Sioux Tribe of South Dakota, has been fighting
the Navajo Nation's jurisdiction since 1997. He is accused of threatening
and beating his former father-in-law, an Omaha from Nebraska, and
threatening another man, who is Navajo.
Means argued the tribe lacked the authority to prosecute him since he is not
a member of the Navajo Nation and will never be. He said that a 1990 act of
Congress known as the "Duro fix" violated his constitutional rights because
it subjects "all Indians," regardless of membership, to the criminal
jurisdiction of tribes.
The 9th Circuit Court of Appeals, however, rejected that stance. In a
19-page opinion, a three-judge panel affirmed the legality of Duro fix,
which was passed in 1990 in response to a U.S. Supreme Court decision that
limited tribal sovereignty.
"'All Indians' plainly includes Indians who are not members of the tribe,"
Judge Andrew J. Kleinfeld wrote in the unanimous decision. "[I]t is settled
law that, pursuant to the 1990 amendment to the Indian Civil Rights Act, an
Indian tribe may exercise inherent sovereign judicial power in criminal
cases against nonmember Indians for crimes committed on the tribe's
reservation," the opinion further stated.
The decision brought a stinging rebuke from Means, one of the most visible
Native American activists of the past century. "It goes to prove that
American Indians are nothing more than Colonial subjects, subjected to
dictatorial rule, and that we are not American citizens," he said in a phone
interview from his home near Santa Fe, New Mexico.
The ruling isn't a victory for Indian rights because tribal jurisdiction is
tied to an act of Congress, Means argued. "Sovereignty means you are
dependent on no one -- that is sovereignty, he said. "Look at up in the
dictionary. Sovereignty isn't playing house with the dictatorial regimes of
the U.S. government."
Navajo Nation President Joe Shirley Jr. didn't see it that way though. "This
decision reinforces the sovereignty of Native nations. That's the way it
should be," he said yesterday. "Using sovereignty, we can relate to one
another as nations."
"It's unfortunate another government had to find it for us," he added. "But
it's a good decision."
In ruling against Means, the 9th Circuit followed a critical decision issued
by the Supreme Court last year in the US v. Lara case. By a 7-2 vote, the
justices agreed that tribes have the inherent power to prosecute other
Indians under the Duro fix.
At the time, however, the high court left open the question of whether
tribal criminal prosecution violates the due process and equal protection
guarantees of the Fifth Amendment. The majority noted that its ruling was
limited to the double jeopardy clause of the Fifth Amendment.
The 9th Circuit appears to settle the outstanding issues. First, the court
said the Duro fix doesn't violate the equal protection clause because
Indians are a political class, not a racial one. Congress therefore has the
power to affirm and recognize tribal sovereignty, the panel said.
"First, recognizing criminal jurisdiction of tribal courts over nonmember
Indians furthers Indian self-government," Judge Kleinfeld wrote.
"Second, the reason Congress can recognize the power of a tribe to exercise
criminal jurisdiction over a nonmember Indian like Means - but not over a
nonmember, non-Indian who like Means might become involved in a domestic
dispute - is ... Indian tribal identity is political rather than racial, and
the only Indians subjected to tribal court jurisdiction are enrolled members
of tribes, not all ethnic Indians," the decision stated.
Tribal criminal prosecution also doesn't violate due process rights because
the Indian Civil Rights Act "confers all the criminal protections on Means
that he would receive under the Federal Constitution," the court said. "Thus
as a facial matter, Means will not be deprived of any constitutionally
protected rights despite being tried by a sovereign not bound by the
Constitution," Kleinfeld wrote.
Finally, the court said the Duro fix is consistent with the 1868 Navajo
Nation treaty. Means argued that a clause in the treaty dealing with "bad
men" requires the tribe to turn him over to the federal government. However,
the tribe he is charged with is not covered by federal statutes.
"The treaty obligates the United States to arrest and punish offenders
against the Navajo, under federal law," the 9th Circuit acknowledged, "but
it does not say that the Navajo cannot do so on their own, and there is
nothing in the treaty language inconsistent with the concurrent jurisdiction
that we have recognized in other contexts."
The court, however, noted that tribal criminal prosecution is limited to
members of federally recognized tribes, not to people who are "merely
The Navajo Nation has stated in the past that it fully intends to prosecute
Means once the jurisdiction question is settled. The Navajo Nation Supreme
Court, on its own, has already concluded that it has the authority to punish
Means because he was married to a Navajo tribal member at the time.
Means said he would consider asking a full panel of the 9th Circuit to
rehear the case. He said an appeal to the U.S. Supreme Court is possible
even though he lacks confidence in the federal system.
"I want to pound the final nail of the coffin of our Colonial existence," he
said yesterday. "This ruling, if this stands at the Supreme Court, will
definitely separate us from the rest of the America and its Constitution
Get the Decision:
Russell Means v. Navajo Nation (August 23, 2005)
US v. Lara Decision:
Syllabus | Opinion [Breyer] | Concurrence [Stevens] | Concurrence [Kennedy |
Concurrence [Thomas] | Dissent [Souter]
Russell Means - http://www.russellmeans.com
Navajo Nation - http://www.navajo.org
Means loses lawsuit against Oglala Sioux election (03/09)
Judge denies tribal jurisdiction over Indian descendant (12/08)
Russell Means sues after losing Pine Ridge election (12/03)
Harjo: Pine Ridge election about character (10/29)
Russell Means arrested for missing court date (10/25)
Russell Means top vote-getter in Pine Ridge primary (10/7)
Russell Means not welcome as Republican either (07/30)
Tribal authority over all Indians still unsettled question (06/23)
Russell Means ready to give up on Republican Party (06/03)
Supreme Court affirms tribal powers over all Indians (04/20)
Thune gains endorsement from odd source: Russell Means (02/05)
Supreme Court hears tribal powers case (01/22)
Supreme Court case on jurisdiction attracts attention (01/08)
DOJ's Supreme Court brief backs sovereignty (7/30)
Tribal jurisdiction faces test before Supreme Court (07/03)
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