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RUSSELL MEANS, Petitioner-Appellant, 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,
Respondents-Appellees, and UNITED STATES OF AMERICA,
Respondent-Intervenor-Appellee.

No. 01-17489

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT


2005 U.S. App. LEXIS 27169

January 28, 2005 *, Resubmitted, 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 constitutionality of a federal statute,
the United States was entitled to intervene. 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.
December 13, 2005, Filed

PRIOR HISTORY: [*1] Appeal from the United States District Court for the
District of Arizona. D.C. No. CV-99-01057-EHC. Earl H. Carroll, District Judge,
Presiding.

DISPOSITION: AFFIRMED.

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, Window 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.

JUDGES: 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.

OPINIONBY: Andrew J. Kleinfeld

OPINION:

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2005), is withdrawn.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 [*2]
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.

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 Reservation.

In December 1997, Means allegedly threatened and battered 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,
n1 and 180 days in jail and a $ 500 fine for the [*3] battery. n2

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n1 See Navajo Nation Code tit. 17, § 310.

n2 See Navajo Nation Code tit. 17, § 316.

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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 Reservation. 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 nationalities 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 [*4] of the Navajo tribe
because membership required at least one quarter Navajo blood. n3 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.

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n3 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.

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The Navajo Nation trial court denied Means' motion to dismiss 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
Navajo reservation covers about 25,000 square miles, making it larger than many
U.S. states and foreign countries. n4 Over 9,000 Indians of other [*5] tribes
live within the Navajo Nation, so 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
Indians. 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 reservation, 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.

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n4 The Navajo Reservation is almost three times the size of New Jersey.

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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. n5

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n5 See McCoy v. Stewart, 282 F.3d 626, 629 (9th Cir. 2002); Moore v. Nelson,
270 F.3d 789, 790-92 (9th Cir. 2001).

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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
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 [*7] Navajo trial court or
face re-arrest and additional 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. Lydon n6 and Hensley v.
Municipal Court. n7 The parties have not challenged that conclusion before us,
and, although we are required to examine jurisdiction sua sponte, n8 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.

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n6 Justices of Boston Mun. Court v. Lydon, 466 U.S. 294, 300-02, 80 L. Ed. 2d
311 (1984).

n7 Hensley v. Mun. Court, San Jose-Milpitas Judicial Dist., Santa Clara
County, 411 U.S. 345, 351-52, 36 L. Ed. 2d 294 (1973).

n8 See Bernhardt v. County of Los Angeles, 279 F.3d 862, 868 (9th Cir. 2002).

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II. The 1990 Amendments to the Indian Civil Rights Act

In Oliphant v. Suquamish Indian Tribe, n9 the Supreme Court held that Indian
tribes do not possess criminal jurisdiction over non-Indians. n10 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 assaulting an
officer and resisting arrest. n11 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
away. n12 The Supreme Court disagreed and held that, although Indian tribes
enjoy some sovereign powers, their "domestic, dependent" n13 nature
distinguishes them from the governments of foreign countries. n14 It also held
that citizens of the United States who are not Indians cannot be subjected to
Indian tribal sovereignty for criminal purposes. n15

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n9 Oliphant v. Suquamish Indian Tribe, 435 U.S. 191, 55 L. Ed. 2d 209 (1978).
[*9]



n10 Id. at 194.

n11 Id.

n12 Id. at 195-96.

n13 See Cherokee Nation v. Georgia, 30 U.S. (5 Pet.) 1, 17, 8 L. Ed. 25
(1831).

n14 Oliphant, 435 U.S. at 211; see also United States v. Kagama, 118 U.S.
375, 379, 30 L. Ed. 228 (1886).

n15 Oliphant, 435 U.S. at 212.

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Following Oliphant, the Supreme Court suggested in United States v. Wheeler
n16 that the inherent sovereignty of a tribe might extend only to its own
enrolled members. n17 Then, in Duro v. Reina, n18 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 membership." n19 Duro reasoned that,
as American citizens, n20 Indians were entitled not to be subjected to the
criminal authority of sovereigns of which they were not and could not become
full members. n21

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n16 United States v. Wheeler, 435 U.S. 313, 55 L. Ed. 2d 303 (1978). [*10]



n17 Id. at 323, 326-29.

n18 Duro v. Reina, 495 U.S. 676, 109 L. Ed. 2d 693 (1990).

n19 Id. at 679.

n20 See Indian Citizenship Act of 1924, 8 U.S.C. § 1401(b).

n21 Duro, 495 U.S. at 692-93.

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In 1990 Congress responded to Indian tribes' concerns about the holding in
Duro by amending n22 the Indian Civil Rights Act n23 to say that the "powers of
self-government" of Indian tribes "means the inherent power of Indian tribes,
hereby recognized and affirmed, to exercise criminal jurisdiction over all
Indians." n24 "All Indians" plainly includes Indians who are not enrolled
members of the particular tribe exercising jurisdiction. It is significant for
the equal protection discussion 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 "Indian" is the same as "Indian" in the Major Crimes Act. n25

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n22 See Pub. L. 101-511, Title VIII, § 8077(b)-(c), 104 Stat. 1892 (1990).
[*11]



n23 Indian Civil Rights Act of 1968, 25 U.S.C. §§ 1301-1303.

n24 25 U.S.C. § 1301(2).

n25 18 U.S.C. § 1153.

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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." n26 The statute referred to, 18 U.S.C. §
1153 (the Major Crimes Act), says it applies to "any Indian." n27 In United
States v. Antelope, n28 enrolled Indians 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 "except 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 [*12] 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." n29 The Court pointed out that "federal jurisdiction under the
Major Crimes Act does not apply to 'many individuals who are racially to be
classified as "Indians."'" n30 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 intimated no views on the matter." n31

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n26 25 U.S.C. § 1301(4).

n27 See 18 U.S.C. § 1153(a).

n28 United States v. Antelope, 430 U.S. 641, 51 L. Ed. 2d 701 (1977).

n29 Id. At 646.

n30 Id. at 646 n.7 (quoting Morton v. Mancari, 417 U.S. 535, 553 n.24, 41 L.
Ed. 2d 290 (1974)).

n31 Id. At 646-47, n. 7.

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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 Amendments 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 classification.

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 Commerce n32 and Treaty n33 Clauses. Indian tribes are not bound by
the United States Constitution in the exercise of their powers, including their
judicial powers, n34 so federal judicial power over nonmembers could not be
delegated to them. n35

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n32 U.S. Const. art. I, § 8, cl. 3.

n33 U.S. Const. art. II, § 2, cl. 2.

n34 See Talton v. Mayes, 163 U.S. 376, 382-85, 41 L. Ed. 196 (1896).

n35 See Duro, 495 U.S. at 686.

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Following the 1990 Amendments, Means's theory was tested in other cases.
Double jeopardy cases examined whether the statutory language, "recognizing and
affirming" the power of tribes over nonmember Indians rather than "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 sovereign authority, an Indian defendant could be punished in both
the tribal court as well as in federal district court under the "dual
sovereignty" doctrine. n36 If the tribe was exercising delegated 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. n37 More
broadly, after the Supreme Court in Duro had concluded that the tribe had not
retained sovereign power over nonmember Indians, n38 the question was whether
Congress even had the ability to "recognize" an inherent power. n39

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n36 See, e.g., United States v. Lara, 324 F.3d 635, 636 (8th Cir. 2003) (en
banc), rev'd, 541 U.S. 193, 158 L. Ed. 2d 420 (2004); United States v. Enas, 255
F.3d 662, 675 (9th Cir. 2001) (en banc). [*15]



n37 See Enas, 255 F.3d at 667.

n38 See Duro, 495 U.S. at 679.

n39 See Enas, 255 F.3d at 667-75.

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These questions raised by Means's statutory argument n40 have, subsequent to
the original briefing in this case, been definitively answered by the Supreme
Court. United States v. Lara n41 holds that "Congress does possess the
constitutional power to lift the restrictions on the tribes' criminal
jurisdiction over nonmember Indians as the statute seeks to do." n42 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 prosecute nonmember Indians." n43 Thus, except for the questions
reserved in Lara, n44 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. [*16]

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n40 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.

n41 United States v. Lara, 541 U.S. 193, 158 L. Ed. 2d 420 (2004).

n42 Id. at 200.

n43 Id. at 210.

n44 See id. at 207-09 (declining to address equal protection and due process
challenges to the Indian Civil Rights Act).

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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. n45 Means argues that by
recognizing tribal criminal jurisdiction over nonmember Indians, the 1990
Amendments violate the equal protection guarantees of the Fifth Amendment n46
and the Indian Civil Rights Act n47 because they discriminate against [*17] him
as an Indian, subjecting him to adverse treatment on account of his race.

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n45 See id. at 208-09; see also id. at 213-14 (Kennedy, J., concurring).

n46 See U.S. Const. amend. V.

n47 See 25 U.S.C. § 1302(8).

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Means's equal protection argument has real force. He argues that, although
the 1990 Amendments permit the Navajo tribe to criminally prosecute its own
members and members 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. n48 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 Process and Equal Protection Clauses of the
Fourteenth Amendment. Although he is an Indian, Means [*18] 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. n49 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.

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n48 See Oliphant, 435 U.S. at 194.

n49 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, 56 L. Ed. 2d 106
(1978).

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Despite the force of [*19] Means's argument, we nonetheless conclude that
the weight of established law requires us to reject Means's equal protection
claim. Morton v. Mancari n50 holds (albeit in the distinguishable context of
Indian employment preferences by the federal government) that federal statutory
recognition of Indian status is "political rather than racial in nature." n51
Means argues that Mancari is undermined by Adarand Constructors, Inc. v. Pena,
n52 but both the Supreme Court and our court have continued to rely on Mancari,
n53 and we are bound to follow it under the doctrine of Agostini v. Felton. n54

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n50 Morton v. Mancari, 417 U.S. 535, 41 L. Ed. 2d 290 (1974).

n51 Id. at 553 n.24.

n52 Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 227, 132 L. Ed. 2d 158
(1995); see also Johnson v. California, 543 U.S. 499, 125 S. Ct. 1141, 1147-48,
160 L. Ed. 2d 949 (2005).

n53 See Rice v. Cayetano, 528 U.S. 495, 518-22, 145 L. Ed. 2d 1007 (2000);
Kahawaiolaa v. Norton, 386 F.3d 1271, 1279 (9th Cir. 2004). [*20]



n54 Agostini v. Felton, 521 U.S. 203, 237, 138 L. Ed. 2d 391 (1997); see also
United States v. Hatter, 532 U.S. 557, 567, 149 L. Ed. 2d 820 (2001); State Oil
Co. v. Khan, 522 U.S. 3, 20, 139 L. Ed. 2d 199 (1997); Rodriguez de Quijas v.
Shearson/Am. Express, Inc., 490 U.S. 477, 484, 104 L. Ed. 2d 526 (1989).

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Mancari held that an employment preference for Indians in the Bureau of
Indian Affairs was not "invidious racial discrimination in violation of the Due
Process Clause of the Fifth Amendment" n55 because "it is not even a 'racial'
preference." n56 "Legislation that singles out Indians for particular and
special treatment" is in a special category because of the historical
relationship of the United States with the Indians and the Indian Commerce
Clause, n57 and "as long as the special treatment can be tied rationally to the
fulfillment of Congress' unique obligation toward the Indians, such legislative
judgments will not be disturbed." n58 The preference at issue passed this
"rational tie" standard, because it was "reasonable [*21] and rationally
designed to further Indian self-government." n59

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n55 Mancari, 417 U.S. at 551.

n56 Id. at 553.

n57 See id. at 551-55.

n58 Id. at 555.

n59 Id.

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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. [*22]
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 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 adjudicate thousands of cases per year. If
Means was not subject to prosecution in the Navajo courts, he could not be
prosecuted 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,
n60 and there is no federal court jurisdiction because Means's alleged offenses
do not fall within the Major Crimes Act. n61

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n60 See, e.g., Application of Denetclaw, 83 Ariz. 299, 320 P.2d 697, 698-701
(Ariz. 1958).

n61 See 18 U.S.C. § 1153.

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Second, the reason Congress can recognize [*23] 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 applicability of federal law to a prosecution for a
murder that had taken place on the tribe's reservation. n62 Had they been of a
different race, they argued, a more favorable provision of state law would have
applied under the Assimilative Crimes Act, n63 rather than the less favorable
federal provision that applied under the Major Crimes Act. n64 But the Supreme
Court noted its holding in Mancari that the employment preference was granted to
Indians "not as a discrete racial group, but rather, as members of
quasi-sovereign political entities," n65 and extended Mancari even though the
context did not [*24] 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." n66

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n62 Antelope, 430 U.S. at 642-44.

n63 18 U.S.C. § 13; see United States v. McBratney, 104 U.S. 621, 621-24, 26
L. Ed. 869 (1881).

n64 18 U.S.C. § 1153.

n65 Antelope, 430 U.S. at 645 (quoting Mancari, 417 U.S. at 554).

n66 Antelope, 430 U.S. at 646.

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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. n67 We need not decide whether the same principle would apply if
he had been expelled from or had voluntarily and formally withdrawn from his
tribe n68 prior to committing [*25] the alleged misdemeanors because those
hypothetical facts are not claimed in this case. Morton v. Mancari suggests that
Indians "emancipated from tribal relations" or whose tribes have been terminated
are not subject to the Major Crimes Act even if they are "racially to be
classified as 'Indians.'" n69

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n67 25 U.S.C. § 1301(2); see Antelope, 430 U.S. at 646.

n68 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 terminate 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, 5 Dill. 453, 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).
[*26]



n69 Morton, 430 U.S. at 646-47, n. 7.

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Our court is among the lower courts that have gone where the Supreme Court
did not in Antelope, holding that formal enrollment in a tribe is not an
"absolute" requirement for Indian status even though it is the "common
evidentiary means of establishing Indian status." n70 United States v. Bruce n71
was a federal prosecution under 25 U.S.C. § 1152 (the Indian General Crimes Act)
for assault on a child on an Indian reservation. The defendant in Bruce argued
that she was an Indian, so she was entitled to the benefit of the exception in
that statute for crimes committed by an Indian against an Indian. She was not
enrolled in any tribe nor was she eligible for enrollment. We held (over a
strong dissent) that she was nevertheless 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'" n72 to make her an
"Indian" for purposes [*27] of the exception

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n70 United States v. Bruce, 394 F.3d 1215, 1224. (9th Cir. 2005).

n71 Id.

n72 Id. At 1224 (quoting St. Cloud v. United States, 702 F. Supp. 1456, 1461
(D.S.D. 1988)).

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Means's case is distinguishable from Bruce, most especially 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 subject to tribal
court jurisdiction. While Bruce was a federal prosecution which would have
implicitly limited tribal sovereignty 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 . . . prosecute misdemeanors against Indians [*28] who are
not members of that tribe." n73

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n73 Id. At 1220.

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B. Due Process

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 challenge to the Navajo trial proceedings would be premature. n74
Means's facial due process challenge to the 1990 Amendments has no force.
Although the U.S. Constitution does not bind the Navajo tribe in the exercise of
its own sovereign powers, n75 the Indian Civil Rights Act confers all the
criminal protections 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. n76 The right to grand jury
indictment would not pertain regardless, because Means is charged with a
misdemeanor. n77 The right to appointed counsel is conferred by the Navajo Bill
of Rights to any person within its jurisdiction. n78 Thus as a facial matter,
Means will not be [*29] deprived of any constitutionally protected rights
despite being tried by a sovereign not bound by the Constitution.

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n74 See Broadrick v. Oklahoma, 413 U.S. 601, 610, 37 L. Ed. 2d 830 (1973).

n75 See Talton, 163 U.S. at 382-85.

n76 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).

n77 See U.S. Const. amend. V; cf. Fed. R. Crim. P. 7(a)(2).

n78 See Navajo Nation Code tit. 1.

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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 treaty n79 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 prosecuted by the
Navajo tribe but must be turned over to the federal [*30] government for trial.

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n79 Treaty between the United States of America and the Navajo Tribe of
Indians, June 1, 1868, U.S.-Navajo, 15 Stat. 667.

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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. Guaranteeing 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. n80


A second clause, [*31] speaking expressly about Indians, is analogous:

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 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. n81


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n80 Id.

n81 Id.

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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 [*32] 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.

We accept neither argument because the 1868 Treaty does not conflict with,
and is easily reconciled with, the language 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
[*33] 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. n82 The treaty obligates the United States to arrest and punish
offenders against the Navajo, under federal law, 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. n83

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n82 Cf. Tsosie v. United States, 825 F.2d 393, 400-02 (Fed. Cir. 1987); Hebah
v. United States, 192 Ct. Cl. 785, 428 F.2d 1334, 1338-40 (Ct. Cl. 1970).

n83 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, 3 L. Ed. 2d 251 (1959).

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The remedies provided for by the 1868 treaty do not purport to be exclusive.
[*34] Under the treaty, Indian offenders are to be delivered to the United
States for prosecution under federal law on request. This provision, however, is
conditioned on a request from the United States's agent. The treaty conditions
have not been fulfilled in this case, so the rendition provision in the treaty
does not apply. 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.

Conclusion

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.