Means v. Navajo Nation ( 2005 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
RUSSELL MEANS, 
Petitioner-Appellant,
v.
NAVAJO NATION, a federally
recognized Indian Tribe; RAY No. 01-17489
GILMORE, Judge of the Judicial
D.C. No.
District of Chinle, Navajo Nation,
Arizona; ROBERT YAZZIE, Chief  CV-99-01057-EHC
Justice of the Navajo Nation, ORDER AND
Respondents-Appellees, OPINION
and
UNITED STATES OF AMERICA,
Respondent-Intervenor-
Appellee.

Appeal from the United States District Court
for the District of Arizona
Earl H. Carroll, District Judge, Presiding
Argued and Submitted October 10, 2002
Submission withdrawn November 19, 2003
Resubmitted January 28, 2005*
San Francisco, California
*We withdrew submission of this case when the Supreme Court granted
certiorari in United States v. Lara, 324 F.3d 635 (8th Cir.), cert. granted,
539 U.S. 987 (2003), rev’d, 541 U.S. 493 (2004), because Lara appeared
likely to resolve many of the important and difficult issues presented in
this case. Lara was decided April 19, 2004, but on June 10, 2004, the
United States advised the court that because this case challenged the con-
stitutionality of a federal statute, the United States was entitled to inter-
vene. See 28 U.S.C. § 2403(a); Fed. R. App. P. 44. The United States filed
a motion to intervene as of right on September 2, 2004. We granted the
United States’ motion, and the court subsequently received further briefing
by the intervenor, the parties, and amicus curiae.
16241
16242 MEANS v. NAVAJO NATION
Filed December 13, 2005
Before: Andrew J. Kleinfeld, Johnnie B. Rawlinson,
Circuit Judges, and Justin L. Quackenbush,** District Judge.
Opinion by Judge Kleinfeld
**The Honorable Justin L. Quackenbush, Senior United States District
Judge for the Eastern District of Washington, sitting by designation.
16244 MEANS v. NAVAJO NATION
COUNSEL
John Trebon, Trebon & Fine, P.C., Flagstaff, Arizona, for the
appellant.
Donovan D. Brown, Sr., Acting Deputy Assistant Attorney
General, Navajo Nation Office of the Attorney General, Win-
dow Rock, Arizona, for the appellees.
Thomas L. Sansonetti (briefed), Assistant Attorney General,
U.S. Department of Justice, Env. & Nat. Resources Division,
Washington, D.C., for the intervenor.
Jon Metropoulos (briefed), Gough, Shanahan, Johnson &
Waterman, Helena, Montana, for amicus curiae Thomas Lee
Morris and Elizabeth S. Morris.
MEANS v. NAVAJO NATION 16245
ORDER
The opinion filed August 23, 2005, and appearing at 420
F.3d 1037 (9th Cir. 2005), is withdrawn. Pursuant to General
Order 5.3.a, an opinion is filed contemporaneously with this
order. With the withdrawal and substitution of the opinion,
the petitions for rehearing and rehearing en banc are denied
as moot. Subsequent petitions for rehearing and rehearing en
banc may be filed. Federal Rule of Appellate Procedure 40
now controls.
OPINION
KLEINFELD, Circuit Judge:
This case concerns whether an Indian tribe can exercise
criminal jurisdiction over a person who is not a member of the
tribe, but who is an enrolled member of another Indian tribe.
Facts
This is an appeal from a denial of a petition for a writ of
habeas corpus. The petitioner, Russell Means, an enrolled
member of the Oglala-Sioux Indian Tribe, seeks to prevent
the Navajo Nation from criminally prosecuting him in Navajo
tribal court for an incident that occurred on the Navajo Reser-
vation.
In December 1997, Means allegedly threatened and bat-
tered his then father-in-law, who is an Omaha Indian, and
allegedly threatened another man, a Navajo Indian. The
offenses are misdemeanors under the Navajo Code, with
potential maximum penalties of 90 days in jail and a $250
fine for each threat,1 and 180 days in jail and a $500 fine for
the battery.2
1
See Navajo Nation Code tit. 17, § 310.
2
See Navajo Nation Code tit. 17, § 316.
16246 MEANS v. NAVAJO NATION
Means moved in the Navajo tribal court to dismiss the
tribal proceedings. He argued that the tribal court had no
jurisdiction over him because he was not a Navajo. Means
testified that he is an enrolled member of the Oglala-Sioux
Tribe of Indians and a permanent resident of Porcupine, a
town in South Dakota on the Pine Ridge Sioux Indian Reser-
vation. Means lived on the Navajo Indian Reservation from
1987 to 1997 when he was married to a woman who was a
half-Navajo, half-Omaha Indian. Means moved back to the
Sioux reservation in 1997, and the alleged offenses occurred
later when Means was visiting the Navajo reservation.
Means testified that the difference between an Oglala-
Sioux and a Navajo is analogous to the difference in nationali-
ties between an American and a French person. Although
Means lived on the Navajo reservation for a decade while
married to his ex-wife, he could never become a member of
the Navajo tribe because membership required at least one
quarter Navajo blood.3 Means does not speak Navajo, and as
a non-Navajo, he had difficulty obtaining employment
because of tribal preferences given to Navajos and restrictions
that make it difficult for a non-Navajo to find employment,
participate in civic life, and license a business.
The Navajo Nation trial court denied Means’ motion to dis-
miss for lack of jurisdiction. Means appealed to the Navajo
Nation Supreme Court which also denied his motion. The
decision of the Navajo Supreme Court explains that the Nav-
ajo reservation covers about 25,000 square miles, making it
larger than many U.S. states and foreign countries.4 Over
9,000 Indians of other tribes live within the Navajo Nation, so
3
Enrolled membership in the Navajo Nation is conditioned upon no less
than one-fourth degree of Navajo blood. One may not become a Navajo
by adoption or custom, and one cannot become a Navajo if he is an
enrolled member of another Indian Nation or Tribe. See Navajo Nation
Code tit. 1, §§ 701-703.
4
The Navajo Reservation is almost three times the size of New Jersey.
MEANS v. NAVAJO NATION 16247
domestic violence cases involving non-Navajo Indians arise
from time to time. The Navajo Supreme Court explained that
the considerable amount of violence arising from alcohol,
when combined with the size and ethnic inclusiveness of the
reservation, generates a “need to exercise criminal jurisdiction
over all who enter the Navajo Nation,” not just Navajo Indi-
ans. The Navajo Supreme Court decision says that while there
are preferences for Navajos in employment and contracting,
they are not absolute barriers, and that Means could have
qualified for jury service in the Navajo tribal courts had he
been registered to vote in Arizona. The Navajo Supreme
Court also noted that, because Means had married a Navajo,
he was a “hadane,” or in-law, during his residence on the res-
ervation, connected by rights and obligations to his wife’s
clan. As the Navajo Supreme Court notes, however, becoming
a “hadane” does not make one a Navajo.
After exhausting his remedies in the Navajo courts, Means
petitioned the United States District Court for a writ of habeas
corpus to enjoin the tribal courts from proceeding further in
his case. The district court denied Means’s petition, and he
appeals.
Analysis
All the questions before us are purely matters of law and
arise on appeal of the district court’s denial of a writ of habeas
corpus under 25 U.S.C. § 1303, so we review de novo.5
I. Jurisdiction
Means has exhausted his tribal court remedies regarding
jurisdiction, but he has still not been tried for the alleged
threats and battery. Nonetheless, Means remains subject to
conditions of pretrial release. Means cannot have any contact
5
See McCoy v. Stewart, 282 F.3d 626, 629 (9th Cir. 2002); Moore v.
Nelson, 270 F.3d 789, 790-92 (9th Cir. 2001).
16248 MEANS v. NAVAJO NATION
with his former father-in-law or go within 100 yards of his
former father-in-law’s home. Means also must appear as
ordered by the Navajo trial court or face re-arrest and addi-
tional punishment for any failure to appear. The district court
therefore concluded that Means was in custody for purposes
of habeas jurisdiction under Justices of Boston Municipal
Court v. Lydon6 and Hensley v. Municipal Court.7 The parties
have not challenged that conclusion before us, and, although
we are required to examine jurisdiction sua sponte,8 we agree
with the district court. The charges against Means remain
pending in the Navajo Nation trial court, and although the
Navajo Nation and Means have stipulated to a stay in the trial
court until this appeal is decided, the Navajo Nation states
that it fully intends to prosecute Means if jurisdiction is
resolved in its favor. Accordingly, we have jurisdiction to
consider this appeal.
II. The 1990 Amendments to the Indian Civil Rights Act
In Oliphant v. Suquamish Indian Tribe,9 the Supreme Court
held that Indian tribes do not possess criminal jurisdiction
over non-Indians.10 In Oliphant, the Suquamish Tribe had
prosecuted two non-Indians, one for racing down a highway
and colliding with a tribal police car, and another for assault-
ing an officer and resisting arrest.11 The tribe did not claim
that Congress had given it authority to exercise jurisdiction,
but rather that the tribe had an inherent sovereign authority to
exercise criminal jurisdiction over incidents that occurred on
its reservation — an authority that Congress had never taken
6
Justices of Boston Mun. Court v. Lydon, 466 U.S. 294, 300-02 (1984).
7
Hensley v. Mun. Court, San Jose-Milpitas Judicial Dist., Santa Clara
County, 411 U.S. 345, 351-52 (1973).
8
See Bernhardt v. County of Los Angeles, 279 F.3d 862, 868 (9th Cir.
2002).
9
Oliphant v. Suquamish Indian Tribe, 435 U.S. 191 (1978).
10
Id. at 194.
11
Id.
MEANS v. NAVAJO NATION 16249
away.12 The Supreme Court disagreed and held that, although
Indian tribes enjoy some sovereign powers, their “domestic,
dependent”13 nature distinguishes them from the governments
of foreign countries.14 It also held that citizens of the United
States who are not Indians cannot be subjected to Indian tribal
sovereignty for criminal purposes.15
[1] Following Oliphant, the Supreme Court suggested in
United States v. Wheeler16 that the inherent sovereignty of a
tribe might extend only to its own enrolled members.17 Then,
in Duro v. Reina,18 the Court explicitly held that “the retained
sovereignty of the tribe as a political and social organization
to govern its own affairs does not include the authority to
impose criminal sanctions against a citizen outside its own mem-
bership.”19 Duro reasoned that, as American citizens,20 Indians
were entitled not to be subjected to the criminal authority of
sovereigns of which they were not and could not become full
members.21
[2] In 1990 Congress responded to Indian tribes’ concerns
about the holding in Duro by amending22 the Indian Civil
Rights Act23 to say that the “powers of self-government” of
Indian tribes “means the inherent power of Indian tribes,
12
Id. at 195-96.
13
See Cherokee Nation v. Georgia, 30 U.S. (5 Pet.) 1, 17 (1831).
14
Oliphant, 435 U.S. at 211; see also United States v. Kagama, 118 U.S.
375, 379 (1886).
15
Oliphant, 435 U.S. at 212.
16
United States v. Wheeler, 435 U.S. 313 (1978).
17
Id. at 323, 326-29.
18
Duro v. Reina, 495 U.S. 676 (1990).
19
Id. at 679.
20
See Indian Citizenship Act of 1924, 8 U.S.C. § 1401(b).
21
Duro, 495 U.S. at 692-93.
22
See Pub. L. 101-511, Title VIII, § 8077(b)-(c), 104 Stat. 1892 (1990).
23
Indian Civil Rights Act of 1968, 25 U.S.C. §§ 1301-1303.
16250 MEANS v. NAVAJO NATION
hereby recognized and affirmed, to exercise criminal jurisdic-
tion over all Indians.”24 “All Indians” plainly includes Indians
who are not enrolled members of the particular tribe exercis-
ing jurisdiction. It is significant for the equal protection dis-
cussion below, however, that the 1990 Amendments do not
cover all persons who may be ethnically Indian. In addition
to extending tribal criminal jurisdiction to “all” Indians, the
1990 Amendments make it plain that the definition of “Indi-
an” is the same as “Indian” in the Major Crimes Act.25
The 1990 Amendments define “Indian” as “any person who
would be subject to the jurisdiction of the United States as an
Indian under section 1153, Title 18, if that person were to
commit an offense listed in that section in Indian country to
which that section applies.”26 The statute referred to, 18
U.S.C. § 1153 (the Major Crimes Act), says it applies to
“[a]ny Indian.”27 In United States v. Antelope,28 enrolled Indi-
ans prosecuted under the Major Crimes Act argued that they
were denied equal protection of the laws, because, had they
not been Indians, they would have been prosecuted under
more favorable state law. The Court described the federal
scheme as one in which “[e]xcept for the offenses enumerated
in the Major Crimes Act, all crimes committed by enrolled
Indians against other Indians within Indian country are subject
to the jurisdiction of tribal courts.” The Court rejected the
Equal Protection challenge because “respondents were not
subjected to federal criminal jurisdiction because they were of
the Indian race but because they were enrolled members of
the Coeur d’Alene Tribe.”29 The Court pointed out that “fed-
eral jurisdiction under the Major Crimes Act does not apply
24
25 U.S.C. § 1301(2).
25
18 U.S.C. § 1153.
26
25 U.S.C. § 1301(4).
27
See 18 U.S.C. § 1153(a).
28
United States v. Antelope, 430 U.S. 641 (1977).
29
Id. At 646.
 MEANS v. NAVAJO NATION 16251
to ‘many individuals who are racially to be classified as “Indi-
ans.” ’ ”30 The Court noted in dictum that lower courts had
held that enrollment was not an “absolute” requirement for
federal jurisdiction in some circumstances, but because
respondents were enrolled, the Court was “not called upon to
decide” whether enrollment was an absolute requirement and
“therefore intimate[d] no views on the matter.”31
[3] Taken together, the 1990 Amendments, the Major
Crimes Act, and Antelope mean that the criminal jurisdiction
of tribes over “all Indians” recognized by the 1990 Amend-
ments means all of Indian ancestry who are also Indians by
political affiliation, not all who are racially Indians. For that
reason, subjecting Means to tribal court jurisdiction but not
non-Indians, is, as we explain further below, not a racial clas-
sification.
Means argues that the 1990 Amendments were outside the
powers of Congress because they were an unconstitutional
delegation of federal governmental authority and because they
went beyond the congressional power authorized under the
Indian Commerce32 and Treaty33 Clauses. Indian tribes are not
bound by the United States Constitution in the exercise of
their powers, including their judicial powers,34 so federal judi-
cial power over nonmembers could not be delegated to them.35
Following the 1990 Amendments, Means’s theory was
tested in other cases. Double jeopardy cases examined
whether the statutory language, “recogniz[ing] and affirm-
[ing]” the power of tribes over nonmember Indians rather than
30
Id. at 646 n.7 (quoting Morton v. Mancari, 417 U.S. 535, 553 n.24
(1974)).
31
Id. At 646-47, n. 7.
32
U.S. Const. art. I, § 8, cl. 3.
33
U.S. Const. art. II, § 2, cl. 2.
34
See Talton v. Mayes, 163 U.S. 376, 382-85 (1896).
35
See Duro, 495 U.S. at 686.
16252 MEANS v. NAVAJO NATION
“delegating” it, avoided double jeopardy problems when both
a tribe and the federal government punished someone for the
same conduct. If the tribe was exercising its inherent sover-
eign authority, an Indian defendant could be punished in both
the tribal court as well as in federal district court under the
“dual sovereignty” doctrine.36 If the tribe was exercising dele-
gated federal power, then the federal government would be
punishing the Indian twice for the same conduct, which it
could not do under the double jeopardy clause.37 More
broadly, after the Supreme Court in Duro had concluded that
the tribe had not retained sovereign power over nonmember
Indians,38 the question was whether Congress even had the
ability to “recognize” an inherent power.39
[4] These questions raised by Means’s statutory argument40
have, subsequent to the original briefing in this case, been
definitively answered by the Supreme Court. United States v.
Lara41 holds that “Congress does possess the constitutional
power to lift the restrictions on the tribes’ criminal jurisdic-
tion over nonmember Indians as the statute seeks to do.”42 As
for whether the tribe’s exercise of criminal jurisdiction was a
delegated power or an inherent sovereign power, the Court
held, with certain reservations, that “the Constitution permits
tribes, as an exercise of their inherent tribal authority, to pros-
ecute nonmember Indians.”43 Thus, except for the questions
36
See, e.g., United States v. Lara, 324 F.3d 635, 636 (8th Cir. 2003) (en
banc), rev’d, 541 U.S. 193 (2004); United States v. Enas, 255 F.3d 662,
675 (9th Cir. 2001) (en banc).
37
See Enas, 255 F.3d at 667.
38
See Duro, 495 U.S. at 679.
39
See Enas, 255 F.3d at 667-75.
40
Cf. Enas, 255 F.3d at 665; Means v. N. Cheyenne Tribal Court, 154
F.3d 941, 942 (9th Cir. 1998), overruled in part, Enas, 255 F.3d at 675
n.8.
41
United States v. Lara, 541 U.S. 193 (2004).
42
Id. at 200.
43
Id. at 210.
 MEANS v. NAVAJO NATION 16253
reserved in Lara,44 it 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.
III. Equal Protection and Due Process
A. Equal Protection
Lara expressly declined to answer the question of whether
the tribal criminal prosecution of a nonmember Indian would
violate the Due Process and Equal Protection guarantees of
the Fifth Amendment.45 Means argues that by recognizing
tribal criminal jurisdiction over nonmember Indians, the 1990
Amendments violate the equal protection guarantees of the
Fifth Amendment46 and the Indian Civil Rights Act47 because
they discriminate against him as an Indian, subjecting him to
adverse treatment on account of his race.
Means’s equal protection argument has real force. He
argues that, although the 1990 Amendments permit the Nav-
ajo tribe to criminally prosecute its own members and mem-
bers of other Indian tribes, the Navajo tribe cannot
constitutionally prosecute whites, blacks, Asians, or any other
non-Navajos who are accused of crimes on the reservation.48
This makes Means’s case different from, say, an Alaskan who
threatens and batters his father-in-law in Los Angeles, and
then is prosecuted by the State of California. Not only can an
Alaskan become a Californian, but the State of California,
although “sovereign,” nonetheless is bound by the Due Pro-
44
See id. at 207-09 (declining to address equal protection and due pro-
cess challenges to the Indian Civil Rights Act).
45
See id. at 208-09; see also id. at 213-14 (Kennedy, J., concurring).
46
See U.S. Const. amend. V.
47
See 25 U.S.C. § 1302(8).
48
See Oliphant, 435 U.S. at 194.
16254 MEANS v. NAVAJO NATION
cess and Equal Protection Clauses of the Fourteenth Amend-
ment. Although he is an Indian, Means is nonetheless a citizen
of the United States, entitled to the full protection of the
United States Constitution. But unlike states, when Indian
tribes exercise their sovereign authority they do not have to
comply with the United States Constitution.49 As an Oglala-
Sioux, Means can never become a member of the Navajo
political community, no matter how long he makes the Navajo
reservation his home.
[5] Despite the force of Means’s argument, we nonetheless
conclude that the weight of established law requires us to
reject Means’s equal protection claim. Morton v. Mancari50
holds (albeit in the distinguishable context of Indian employ-
ment preferences by the federal government) that federal stat-
utory recognition of Indian status is “political rather than
racial in nature.”51 Means argues that Mancari is undermined
by Adarand Constructors, Inc. v. Pena,52 but both the
Supreme Court and our court have continued to rely on Man-
cari,53 and we are bound to follow it under the doctrine of
Agostini v. Felton.54
49
See Talton, 163 U.S. at 382-85; Trans-Canada Enterprises, Ltd. v.
Muckleshoot Indian Tribe, 634 F.2d 474, 476-77 (9th Cir. 1980).
Although the Indian Civil Rights Act imposes due process limitations
upon Indian tribes, 25 U.S.C. § 1302(8), not all the constitutional restraints
are imposed. They are statutory, not constitutional, and the sole remedy
for violations is habeas corpus. See Santa Clara Pueblo v. Martinez, 436
U.S. 49, 56-57 (1978).
50
Morton v. Mancari, 417 U.S. 535 (1974).
51
Id. at 553 n.24.
52
Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 227 (1995); see
also Johnson v. California, 543 U.S. 499, 125 S. Ct. 1141, 1147-48 (2005).
53
See Rice v. Cayetano, 528 U.S. 495, 518-22 (2000); Kahawaiolaa v.
Norton, 386 F.3d 1271, 1279 (9th Cir. 2004).
54
Agostini v. Felton, 521 U.S. 203, 237 (1997); see also United States
v. Hatter, 532 U.S. 557, 567 (2001); State Oil Co. v. Khan, 522 U.S. 3,
20 (1997); Rodrigues de Quijas v. Shearson/Am. Express, Inc., 490 U.S.
477, 484 (1989).
MEANS v. NAVAJO NATION 16255
Mancari held that an employment preference for Indians in
the Bureau of Indian Affairs was not “invidious racial dis-
crimination in violation of the Due Process Clause of the Fifth
Amendment”55 because “it is not even a ‘racial’ preference.”56
“[L]egislation that singles out Indians for particular and spe-
cial treatment” is in a special category because of the histori-
cal relationship of the United States with the Indians and the
Indian Commerce Clause,57 and “[a]s long as the special treat-
ment can be tied rationally to the fulfillment of Congress’
unique obligation toward the Indians, such legislative judg-
ments will not be disturbed.”58 The preference at issue passed
this “rational tie” standard, because it was “reasonable and
rationally designed to further Indian self-government.”59
[6] We conclude that a law subjecting nonmember Indians
to tribal criminal jurisdiction in “Indian country” passes the
“rational tie” standard of Mancari. First, recognizing criminal
jurisdiction of tribal courts over nonmember Indians furthers
Indian self-government. The Navajo reservation, larger than
many states and countries, has to be able to maintain order
within its boundaries. The 1990 Amendments to the Indian
Civil Rights Act were meant to protect Indians and 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,
there are a significant number of Indians who are not Navajos
but live on the Navajo reservation because of intermarriage.
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
55
Mancari, 417 U.S. at 551.
56
Id. at 553.
57
See id. at 551-55.
58
Id. at 555.
59
Id.
16256 MEANS v. NAVAJO NATION
tribal responses may be needed. The Navajo Nation has a
sophisticated body of published laws, and an experienced
court system in which trained trial and appellate judges adju-
dicate thousands of cases per year. If Means was not subject
to prosecution in the Navajo courts, he could not be prose-
cuted in any court. The state of Arizona, like the majority of
states, does not have jurisdiction to try Indians for offenses
committed on a reservation,60 and there is no federal court
jurisdiction because Means’s alleged offenses do not fall
within the Major Crimes Act.61
[7] 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 the same reason given by the Supreme Court for the
employment preference in Mancari: Indian tribal identity is
political rather than racial, and the only Indians subjected to
tribal court jurisdiction are enrolled or de facto members of
tribes, not all ethnic Indians.
In United States v. Antelope, Indians who were enrolled
members of the Coeur d’Alene Tribe challenged the applica-
bility of federal law to a prosecution for a murder that had
taken place on the tribe’s reservation.62 Had they been of a
different race, they argued, a more favorable provision of
state law would have applied under the Assimilative Crimes
Act,63 rather than the less favorable federal provision that
applied under the Major Crimes Act.64 But the Supreme Court
noted its holding in Mancari that the employment preference
60
See, e.g., Application of Denetclaw, 320 P.2d 697, 698-701 (Ariz.
1958).
61
See 18 U.S.C. § 1153.
62
Antelope, 430 U.S. at 642-44.
63
18 U.S.C. § 13; see United States v. McBratney, 104 U.S. 621, 621-24
(1881).
64
18 U.S.C. § 1153.
MEANS v. NAVAJO NATION 16257
was granted to Indians “not as a discrete racial group, but
rather, as members of quasi-sovereign political entities,”65 and
extended Mancari even though the context did not involve
Indian self-government. The Court found that the respondents
were subjected to federal law “not because they are of the
Indian race but because they are enrolled members of the
Coeur d’Alene tribe.”66
There is no sound distinction in principle between Antelope
and this case. The statute subjects Means to Navajo criminal
jurisdiction not because of his race but because of his political
status as an enrolled member of a different Indian tribe.67 We
need not decide whether the same principle would apply if he
had been expelled from or had voluntarily and formally with-
drawn from his tribe68 prior to committing the alleged misde-
meanors because those hypothetical facts are not claimed in
this case. Morton v. Mancari suggests that Indians “emanci-
pated from tribal relations” or whose tribes have been termi-
nated are not subject to the Major Crimes Act even if they are
“racially to be classified as ‘Indians.’ ”69
Our court is among the lower courts that have gone where
the Supreme Court did not in Antelope, holding that formal
65
Antelope, 430 U.S. at 645 (quoting Mancari, 417 U.S. at 554).
66
Antelope, 430 U.S. at 646.
67
25 U.S.C. § 1301(2); see Antelope, 430 U.S. at 646.
68
The authorities suggest that members of Indian tribes can renounce
their membership. See Felix S. Cohen’s Handbook of Federal Indian Law
22 (1982 ed.) (“Tribal membership is a bilateral relation, depending for its
existence not only upon the action of the tribe but also upon the action of
the individual concerned. A member of any Indian tribe is at liberty to ter-
minate the tribal relationship whenever he or she so chooses, although
such termination will not lightly be inferred.”); see, e.g., Smith v. Bonifer,
154 F. 883, 886 (C.C.D. Or. 1907) (No. 2,683), aff’d, 116 F. 846 (9th Cir.
1909); United States ex rel. Standing Bear v. Crook, 25 F. Cas. 695, 699
(C.C.D. Neb. 1879) (No. 14,891); Thompson v. County of Franklin, 180
F.R.D. 216, 225 (N.D.N.Y. 1998).
69
Morton, 430 U.S. at 646-47, n. 7.
16258 MEANS v. NAVAJO NATION
enrollment in a tribe is not an “absolute” requirement for
Indian status even though it is the “common evidentiary
means of establishing Indian status.”70 United States v. Bruce71
was a federal prosecution under 25 U.S.C. § 1152 (the Indian
General Crimes Act) for assault on a child on an Indian reser-
vation. The defendant in Bruce argued that she was an Indian,
so she was entitled to the benefit of the exception in that stat-
ute for crimes committed by an Indian against an Indian. She
was not enrolled in any tribe nor was she eligible for enroll-
ment. We held (over a strong dissent) that she was neverthe-
less entitled to the benefit of the Indian exception because her
mother’s enrollment, two of her three children’s enrollment,
and other evidence of affiliation with the tribe demonstrated
“ ‘a sufficient non-racial link to a formerly sovereign people’ ”72
to make her an “Indian” for purposes of the exception
Means’s case is distinguishable from Bruce, most espe-
cially by his tribal enrollment. We therefore can and do leave
for another day the challenging question Bruce invites:
whether a person who was racially Indian, but who was not
enrolled or eligible for enrollment in any tribe, would be sub-
ject to tribal court jurisdiction. While Bruce was a federal
prosecution which would have implicitly limited tribal sover-
eignty if the Indian exception did not apply, this case is a
tribal court prosecution. Means has chosen to affiliate himself
politically as an Indian by maintaining enrollment in a tribe.
His Indian status is therefore political, not merely racial.
Bruce concluded, as we do, that “Tribal courts may . . . prose-
cute misdemeanors against Indians who are not members of
that tribe.”73
70
United States v. Bruce, 394 F.3d 1215, 1224. (9th Cir. 2005).
71
Id.
72
Id. At 1224 (quoting St. Cloud v. United States, 702 F. Supp. 1456,
1461 (D.S.D. 1988)).
73
Id. At 1220.
 MEANS v. NAVAJO NATION 16259
B. Due Process
[8] Because the criminal proceedings against Means in the
Navajo trial court have been stayed pending the outcome of
his jurisdictional challenge, an “as applied” due process chal-
lenge to the Navajo trial proceedings would be premature.74
Means’s facial due process challenge to the 1990 Amend-
ments has no force. Although the U.S. Constitution does not
bind the Navajo tribe in the exercise of its own sovereign pow-
ers,75 the Indian Civil Rights Act confers all the criminal pro-
tections on Means that he would receive under the Federal
Constitution, except for the right to grand jury indictment and
the right to appointed counsel if he cannot afford an attorney.76
The right to grand jury indictment would not pertain regard-
less, because Means is charged with a misdemeanor.77 The
right to appointed counsel is conferred by the Navajo Bill of
Rights to any person within its jurisdiction.78 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.
IV. The Treaty of 1868
The war between the United States and the Navajo Nation,
which began in the middle of the U.S. Civil War, ended in
1868 with a treaty79 signed on behalf of the United States by
General William Tecumseh Sherman. Means argues that,
under the terms of this treaty, he may not be criminally prose-
74
See Broadrick v. Oklahoma, 413 U.S. 601, 610 (1973).
75
See Talton, 163 U.S. at 382-85.
76
See 25 U.S.C. § 1302; Santa Clara Pueblo, 436 U.S. at 61; Randall
v. Yakima Nation Tribal Court, 841 F.2d 897, 899-900 (9th Cir. 1988).
77
See U.S. Const. amend. V; cf. Fed. R. Crim. P. 7(a)(2).
78
See Navajo Nation Code tit. 1.
79
Treaty between the United States of America and the Navajo Tribe of
Indians, June 1, 1868, U.S.-Navajo, 15 Stat. 667.
16260 MEANS v. NAVAJO NATION
cuted by the Navajo tribe but must be turned over to the fed-
eral government for trial.
Means bases his argument on the so-called “bad men”
clauses of the 1868 Treaty. Indian tribes warred, not only with
the federal government, but also with other tribes. Guarantee-
ing that the Indians would return to a peaceful way of life,
therefore, required some means of dealing with the hostile
foreign tribes.
One clause in the 1868 Navajo Treaty — which is identical
to language used in a number of Indian Treaties of the time
— says that
If bad men among the whites, or among other people
subject to the authority of the United States, shall
commit any wrong upon the person or property of
the Indians, the United States will, upon proof made
to the agent and forwarded to the Commissioner of
Indian Affairs at Washington City, proceed at once
to cause the offender to be arrested and punished
according to the laws of the United States.80
A second clause, speaking expressly about Indians, is analo-
gous:
If bad men among the Indians shall 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 Nav-
ajo tribe agree that they will, on proof made to their
agent, and on notice by him, deliver up the wrong-
doer to the United States, to be tried and punished
according to its laws.81
80
Id.
81
Id.
MEANS v. NAVAJO NATION 16261
Means argues that even if the Navajo Nation at one time
possessed the sovereign power to assert criminal jurisdiction
over nonmember Indians, it relinquished that right by entering
into the 1868 Treaty, which requires that the Navajo Tribe
deliver the wrongdoer to the United States, to be tried and
punished according to federal, not Indian, law. Means also
argues that the 1990 Amendments to the Indian Civil Rights
Act cannot abrogate the protections to which he is entitled
under the 1868 Treaty because Congress has never expressly
abrogated the treaty.
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 therefore meant to confer jurisdiction over
nonmember Indians, not to remove it. The Navajo Nation also
suggests that we are bound to defer to the understanding of
the treaty expressed well over a century after its adoption by
the Navajo Nation Supreme Court. That court found that the
1868 Treaty provides for criminal jurisdiction over Means
because he entered the Navajo Nation, married a Navajo
woman, and engaged in business and civic activities while
residing on the reservation.
[9] We accept neither argument because the 1868 Treaty
does not conflict with, and is easily reconciled with, the lan-
guage of the 1990 Amendments to the Indian Civil Rights Act
that recognizes the inherent sovereign power of the tribe. A
common sense understanding of the treaty language would be
that the United States was obligating itself to protect the
Navajos from “bad men,” of whom the world is never short,
and the Navajos were obligating themselves to turn the “bad
men” over to the United States when appropriate under the
specified conditions.82 The treaty obligates the United States
82
Cf. Tsosie v. United States, 825 F.2d 393, 400-02 (Fed. Cir. 1987);
Hebah v. United States, 428 F.2d 1334, 1338-40 (Ct. Cl. 1970).
16262 MEANS v. NAVAJO NATION
to arrest and punish offenders against the Navajo, under fed-
eral law, but it does not say that the Navajo cannot do so on
their own, and there is nothing in the treaty language inconsis-
tent with the concurrent jurisdiction that we have recognized
in other contexts.83
[10] The remedies provided for by the 1868 treaty do not
purport to be exclusive. Under the treaty, Indian offenders are
to be delivered to the United States for prosecution under fed-
eral law on request. This provision, however, is conditioned
on a request from the United States’s agent. The treaty condi-
tions have not been fulfilled in this case, so the rendition pro-
vision in the treaty does not apply. The United States has not
demanded that the Navajo turn Means over for federal prose-
cution, and the Navajo have chosen to prosecute Means them-
selves in tribal court, which the 1990 Amendments to the
Indian Civil Rights Act recognize they have the power to do.
Conclusion
[11] The Navajo Nation is empowered, under the 1990
Amendments, to prosecute and punish Indians for crimes even
though they are not members of the tribe. The denial of
Means’s petition for a writ of habeas corpus is
AFFIRMED.
83
See Babbitt Ford, Inc. v. Navajo Indian Tribe, 710 F.2d 587, 595-98
(9th Cir. 1983); Arizona ex rel. Merrill v. Turtle, 413 F.2d 683, 685-86
(9th Cir. 1969); see also Williams v. Lee, 358 U.S. 217, 221-22 (1959).