432 F.3d 924 (9th Cir. 2005), 01-17489, Means v. Navajo Nation

Docket Nº:01-17489.
Citation:432 F.3d 924
Party Name: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.
Case Date:December 13, 2005
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit

Page 924

432 F.3d 924 (9th Cir. 2005)

Russell MEANS, Petitioner-Appellant,


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,


United States of America, Respondent-Intervenor-Appellee.

No. 01-17489.

United States Court of Appeals, Ninth Circuit.

December 13, 2005

Argued and Submitted Oct. 10, 2002.

Submission withdrawn Nov. 19, 2003.

Resubmitted Jan. 28, 2005.[*]

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[Copyrighted Material Omitted]

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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.

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Jon Metropoulos (briefed), Gough, Shanahan, Johnson & Waterman, Helena, Montana, for amicus curiae Thomas Lee Morris and Elizabeth S. Morris.

Appeal from the United States District Court for the District of Arizona; Earl H. Carroll, District Judge, Presiding. D.C. No. CV-99-01057-EHC.

Before: Andrew J. Kleinfeld, Johnnie B. Rawlinson, Circuit Judges, and Justin L. Quackenbush, [**] District Judge.


The opinion filed August 23, 2005, and appearing at 420 F.3d 1037 (9th Cir. 2005), is withdrawn.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.


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.


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, 1 and 180 days in jail and a $500 fine for the battery.2

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 of the Navajo tribe because membership required at least one quarter Navajo blood.3 Means does not speak Navajo, and

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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 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.4 Over 9,000 Indians of other 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.

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.


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 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 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. 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.

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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 assaulting 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 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

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 membership."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

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, hereby recognized and affirmed, to exercise criminal

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jurisdiction over all Indians."24 "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.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...

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