U.S. v. Fox, CR 05-772 JB.

• Decision Date: 16 July 2007
• Docket Number: No. CR 05-772 JB.,CR 05-772 JB.
• Citation: 557 F.Supp.2d 1251
• Parties: UNITED STATES of America, Plaintiff, v. Dionysius FOX, Defendant.
• Court: U.S. District Court — District of New Mexico

557 F.Supp.2d 1251

UNITED STATES of America, Plaintiff, v. Dionysius FOX, Defendant.

No. CR 05-772 JB.

United States District Court, D. New Mexico.

July 16, 2007.

COPYRIGHT MATERIAL OMITTED

Larry Gomez, Acting United States Attorney, Louis E. Valencia, Assistant United States Attorney, Albuquerque, NM, for the Plaintiff.

Roger A. Finzel, Assistant Federal Public Defender, Albuquerque, NM, for the Defendant

MEMORANDUM OPINION AND ORDER

JAMES O. BROWNING, District Judge.

THIS MATTER comes before the Court on the Defendant's Motion to Dismiss or, in the Alternative, to Present an Affirmative Defense Based on His Treaty-Recognized Right to Bear Arms for the Purpose of Hunting, filed March 26, 2007 (Doc. 78)("Motion"). The Court held an evidentiary hearing on the motion on May 22, 2007. The primary issues are: (i) whether the right to hunt recognized in the June 1, 1868 Native American Treaty Between the United States of America and the Navajo Tribe of Indians ("Treaty of 1868") prevents the United States from prosecuting Defendant Dionysius Fox for being a felon in possession of a firearm under 18 U.S.C. § 922(g)(1); and (ii) whether, in the alternative, Fox should be allowed to present an affirmative defense against the § 922(g)(1) charge brought against him based on the right to hunt acknowledged in the Treaty of 1868. Because the Court finds that the Treaty of 1868 concerns the Navajo Indian Tribe's right to hunt, not individual Navajo Indians' right to hunt, and because the Court finds that 18 U.S.C. § 922(g)(1) is a law of general applicability, the Court concludes that Fox may be prosecuted for being a convicted felon in possession of a firearm even though § 922(g)(1) did not abrogate the Treaty of 1868. Because the Court finds that there is no basis in law for concluding that the Navajo Tribe's right to hunt, as recognized in the Treaty of 1868, conflicts with imposing criminal liability on Fox for being a convicted felon in possession of a firearm, the Court will not allow Fox to present at trial the affirmative defense he seeks to assert.

FACTUAL BACKGROUND

The essential facts of this case are not in dispute.¹ On March 21, 2005, Navajo Police Officer Elroy Naswood found Fox asleep in a running vehicle parked in a driveway of a residence in Navajo, New Mexico. See Government's Response to Motion to Dismiss or, in the Alternative, to Present an Affirmative Defense at 1, filed April 16, 2007 (Doc. 83)("Response"). Naswood subsequently arrested Fox for driving under the influence of alcohol. See id. During an inventory search of the vehicle in which Fox was found, Navajo Police found a sawed-off, double-barrel shotgun and a rifle with a scope. See id. At the time of his arrest for driving under the influence of alcohol, Fox had prior felony convictions for aggravated assault, resisting arrest, and escape, and was prohibited from possessing firearms. See id. On April 12, 2005, a federal grand jury indicted Fox for violating 18 U.S.C. § 922(g)(1) and 18 U.S.C. 924(a)(2). See Indictment, filed April 12, 2005 (Doc. 9).

PROCEDURAL BACKGROUND

On March 26, 2007, Fox filed his motion to dismiss, or, in the alternative, to present an affirmative defense. See Doc. 78. In his motion, Fox contends that the Treaty of 1868 acknowledged the Navajo Tribe's right to hunt on reservation land, and on unoccupied land contiguous to the reservation, that the Treaty of 1868's recognition of the Navajo Tribe's right to hunt protects the right of individual Navajo Indians to hunt, that 18 U.S.C. § 922(g)(1) did not abrogate the Treaty of 1868, and that, as such, the United States "initiation of prosecution against [ ] Fox for his possession of firearms was defective because [ ] Fox's treaty-recognized [ ] right of hunting predated [§ 922(g)(1) ] and immunized him from prosecution for possession of hunting firearms." Motion at 2. See id. at 2-7. With his motion, Fox also moves the Court, in the alternative, to allow him to "present his treaty-recognized right to hunt on reservation land as an affirmative defense." Id. at 7. "Fox's theory of defense is the existence of his treaty-recognized right to hunt on reservation land, a right which predates the criminal statute with which he is charged and immunizes him from prosecution for possession of a firearm, if possessed for hunting." Id.

The United States filed a response contesting the arguments and requests contained within Fox's motion on April 16, 2007. See Doc. 83. Following that submission, Fox filed his Reply to Government's Response to Defendant's Motion to Dismiss or, in the Alternative, to Present an Affirmative Defense Based on his Treaty-Recognized Right to Bear Arms for the Purpose of Hunting, filed April 30, 2007 (Doc. 84)("Reply"). The Court held an evidentiary hearing on May 22, 2007. See Clerk's Minutes at 1, filed May 25, 207 (Doc. 91). At the hearing, Fox's counsel, Roger Finzel, confirmed that Fox was not making "a preemption argument here," and that what he was "talking about is that the 1968 law (§ 922(g)(1)) did not abrogate the 1868 treaty...." Transcript of Hearing at 4:8-11 (Finzel) (taken May 22, 2007).² Fox and Senior Special Agent Frank Ortiz of the Bureau of Alcohol, Tobacco, Firearms, and Explosives testified at the hearing. See id. at 4:17-5:21(Fox); 47:12-23 (Ortiz). Following the hearing, the United States filed its Surreply in re Defendant's Motion to Dismiss or, in the Alternative, to Present an Affirmative Defense, filed on March 26, 2007, filed May 23, 2007 (Doc. 89)("United States' Surreply"). Fox replied to the United States' surreply on June 18,2007. See Defendant's Sur-Surreply to Government's Surreply to Defendant's Motion to Dismiss or, in the Alternative, to Present an Affirmative Defense Based on his Treaty-Recognized Right to Bear Arms for the Purpose of Hunting, filed June 18, 2007 (Doc. 96)("Fox's Surreply").

TREATY OF 1868

The United States and the Navajo Tribe of Indians concluded the Treaty of 1868 at Fort Sumner, New Mexico, on June 1, 1868. See Response, Exhibit 2, Treaty of 1868, Preamble. The Treaty was proclaimed on August 12, 1868. See id. Article II of the Treaty sets forth the physical boundaries of the Navajo reservation, defining the land "set apart for the use and occupation of the Navajo tribe of Indians." Id., Art. II. The language of Article II — "for the use and occupation of the Navajo tribe of Indians" — recognizes the right of the Navajo Tribe to hunt on the land designated as its reservation. See United States v. Dion, 476 U.S. 734, 738, 106 S.Ct. 2216, 90 L.Ed.2d 767 (1986)("As a general rule, Indians enjoy exclusive treaty rights to hunt ... on land reserved to them, unless such rights were clearly relinquished by treaty or have been modified by Congress."); Menominee Tribe of Indians v. United States, 391 U.S. 404, 405, 88 S.Ct. 1705, 20 L.Ed.2d 697 (1968)("Nothing was said in the 1854 treaty about hunting ... rights. Yet we agree ... that the language `to be held as Indian lands are held' includes the right ... to hunt."). Article IX of the Treaty provides that the Navajo Tribe "retain[s] the right to hunt on any unoccupied lands contiguous to [its] reservation." Treaty of 1868, Art. IX. Together, Article II and Article IX of the Treaty of 1868 establish that the Navajo Tribe has the right to hunt on its reservation land and the land contiguous thereto. The Treaty is silent regarding with which implements the Navajo tribe may hunt. See Treaty of 1868.

18 U.S.C. § 922(g)(1)

The effective date of 18 U.S.C. § 922(g)(1) is December 16, 1968. 18 U.S.C.A. § 922. Section 922(g)(1) provides that:

(g) It shall be unlawful for any person —

(1) who has been convicted in any court of, a crime punishable by imprisonment for a term exceeding one year ...

to ship or transport in interstate or foreign commerce, or possess in or affecting commerce, any firearm or ammunition; or to receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce.

18 U.S.C. § 922(g)(1). "The elements of the crime of possession of a firearm by a convicted felon as described in 18 U.S.C. § 922(g)(1) are as follows: [i] The defendant was convicted of a felony; [ii] Thereafter the defendant knowingly possessed a firearm; and [hi] The defendant's possession of the firearm was in or affecting commerce." United States v. Shunk, 881 F.2d 917, 921 (10th Cir.1989). To be convicted of violating § 922(g)(1), a defendant need not have known that it was illegal for a felon to possess a firearm; "the only knowledge required for a § 922(g)[1] conviction is knowledge that the instrument possessed [was] a firearm." United States v. Capps, 77 F.3d 350, 352 (10th Cir.1996)(internal quotations and citations omitted). 18 U.S.C. § 922(g)(1) is a statute of general applicability. See United States v. Gallaher, 275 F.3d 784, 788 (9th Cir.2001)(citing United States v. Young, 936 F.2d 1050, 1055 (9th Cir.1991)).

LAW REGARDING TREATIES WITH INDIANS

The right to hunt on reservation land is a tribal right. Individual Indians enjoy a right of user in tribal property derived from the Tribe's right. Hunting rights thus belong to a tribe as a whole and not to any individual member of the tribe.

1. Basic Principles.

Congress may appeal or amend, with later statute, the terms and provisions of treaties between the United States and Indian tribes. See Choate v. Trapp, 224 U.S. 665, 671, 32 S.Ct. 565, 56 L.Ed. 941 (1912)("The Tribes have been regarded as dependent nations, and treaties with them have been looked upon not as contracts, but as public laws which could be abrogated at the will of the United States."). When a later enacted statute is inconsistent with a treaty, the statute, to the extent of conflict, renders the treaty null. See Breard v. Greene, 523 U.S. 371, 376, 118 S.Ct. 1352, 140 L.Ed.2d 529 (1998); Hijo v. United States, 194 U.S. 315, 324, 24 S.Ct. 727, 48 L.Ed. 994 (1904)("[Concerning] a conflict...