Navajo Nation Case Could Redefine Scope of Tribal Courts

Navajo Nation v. Russell Means catches the American judicial system in a difficult position.

The case, which was heard before the Navajo Nation Supreme Court Saturday morning at Harvard Law School (HLS), illustrates the complicated and tenuous relationship between the national and American Indian judicial systems.

Means, an Oglala Sioux, is charged by the Navajo Nation Supreme Court with one count of "threatening" and two counts of battery stemming from a 1997 incident with his in-laws.

Means has argued that the Navajo court has no jurisdiction over him because he is from another tribe. He claims that current law--which makes him accountable to the Navajo judicial system because he is an American Indian--is racist and unfair.

The Means case is the latest conundrum in the American judicial system's attempt to address the authority of individual tribal judicial systems over those not belonging to the tribe.

In their quest to carve out a defined scope for the powers of traditional tribal courts, Congress and the Supreme Court have differed over the extent of that jurisdiction.

Both have agreed that American Indian tribes should not have criminal jurisdiction over non-American Indians on reservation land, but they have disagreed on jurisdiction over American Indians who are not members of the local tribe.

In 1990, the Supreme Court restricted the jurisdiction of tribal governments in Duro v. Reina, ruling that individual tribes only had authority over their own members, not over American Indians from other tribes on their reservations.

Under this ruling, Means would not be subject to Navajo law, because he is not from that tribe.

But Congress reversed the Court's ruling, expanding the Indian Civil Rights Act to give individual tribal governments criminal jurisdiction over any American Indian on their lands.

This law makes Means subject to the jurisdiction of the Navajo judicial system.

The question of jurisdiction may ultimately be decided by the Supreme Court.

According to Joseph W. Singer, a professor at Harvard Law School (HLS), if Means loses he will sue the Navajo Nation Supreme Court in federal court, claiming they again that they do not have jurisdiction over him.

Singer said Means would argue he should be treated no differently than non-Indians who commit a crime on reservation land.

"It's hard to see why Indians and non-Indians should be treated differently if they're not members of the tribe," Singer said.

If the Navajo courts are found not to have jurisdiction, then it is still not clear who does, Singer said.

"Someone could commit a crime [on tribal land] and no one would be able to step in," he said.

The solution would be to allow for federal prosecution, but those efforts could be hampered by a lack of funds to provide adequate enforcement--which, Singer said, would "leave Indian Country in a very bad state."

According to Wenona T. Singel, a third-year student at HLS who is vicechair of the Native American Law Students Association, part of the problem lies in misconceptions about the Navajo judicial process.

"People need to recognize that the jurisprudence of the Navajo Supreme Court incorporates Navajo tradition, practice and common law rather than relying on strictly American law," Singel said.

"Historically, that has resulted in some skepticism on the part of the American public because they don't understand how tribal custom is used in tribal courts."