Friday, August 26, 2005

Means v. Navajo nation

No. 01-17489 (8-23-05). This is a "Means test" to Indian tribal jurisdiction over non-tribal Indians. The 9th, following the Supremes in Lara v. US v. 541 US 493 (2004), holds that Congress does indeed have the constitutional power under the 1990 Duro response amendment to extend tribal jurisdiction over non-tribal Indians within the tribe's Reservation. Such power is inherent (the 9th foreshadowed this in Enos -- argued by AFPD Zig Popko, D. Az). The 9th is troubled with the equal protection challenge, acknowledging that the Constitution would forbid permitting jurisdiction over an Asian or African American exclusively. Indians though are different because they can be exempt from some constitutional protections (first amendment, or tribal preferences) and because of the Indian commerce clause. In addition, there is Antelope that characterizes tribes as political rather than racial. Due process and treaty challenges are also dismissed. Bottom line is that Russell means, an Oglala-Sioux, living on the Navajo Reservation, is subject to the Navajo tribal jurisdiction.


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