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Federal courts try to decide who is legally Indian
Wednesday, August 24, 2005

When the U.S. Supreme Court in 1990 ruled that tribal governments lack the inherent authority to prosecute members of other tribes, Congress quickly reacted by passing the "Duro fix."

Named after the Duro v. Reina case, the measure "hereby recognized and affirmed" the ability of tribes to "exercise criminal jurisdiction over all Indians." The Supreme Court, in April 2004, and the 9th Circuit Court of Appeals, in a decision issued yesterday, have since upheld the legality of the act.

But federal prosecutors and Indian law practitioners are finding that the fix didn't fix everything. "All Indians" doesn't mean "all" Indians, as recent decisions have shown.

In yesterday's case, the 9th Circuit pointed out that "all Indians" only includes enrolled members of federally recognized tribes. People with documented Indian ancestry, members of terminated tribes and members of non-recognized tribes will not be subject to the criminal jurisdiction of tribal governments for offenses they commit on reservations.

Even enrolled tribal members might not be covered all the time, the court suggested. Someone could theoretically "renounce" his or her affiliation in order to avoid tribal prosecution.

The issues are important due to the way criminal cases are handled in Indian Country. Depending on the race of the victim and the perpetrator, prosecution may rest with tribal, state or federal authorities.

As a result, the punishments may vary. People who are prosecuted as Indians under federal jurisdiction are often treated more harshly than non-Indians who commit the same crime.

"Does it make any sense that these Indians are subject to greater penalties than the rest of us?" U.S. District Judge Charles Kornmann once told reporters in South Dakota. "It’s ridiculous."

Furthermore, some crimes might go unpunished altogether. Depending on the nature of the offense, neither the tribe, state or federal government would be able to prosecute a person who isn't legally Indian. State and federal authorities may lack the resources, or the will, to go after certain cases as well.

The issue has already been tested. In a case involving an ex-Bureau of Indian Affairs officer who embraced his Indian heritage but isn't enrolled in a tribe, a federal judge ruled that he isn't legally Indian and therefore not subject to the jurisdiction of the Spokane Tribe of Washington, which is part of the 9th Circuit.

"At that point, though, he says, 'Wait, I'm not Indian,'" said Bethany Berger, an assistant professor of law at Wayne State University, at a recent Indian law conference. "This seems unfair -- that a guy that's taken advantage of being Indian would now be able be able to legally disclaim it when it's not working out for him."

But Berger pointed out a flip-side to the debate in another 9th Circuit case, where the court reversed a Montana woman's conviction of child abuse because federal prosecutors charged her as a non-Indian. Although she isn't enrolled in a tribe, the court said she presented enough evidence to prove she was legally Indian.

"There might have been defenses" the woman could have raised were she charged as an Indian, Berger said at the Federal Bar Association conference in April 2005. "It might have changed things a little bit."

The decision means that courts will now have to decide who is and isn't Indian, a task that has often been left to the agencies of the executive branch. In the two cases mentioned, the 9th Circuit looked at whether the person is "perceived" as a member of a tribe, not at blood-quantum or actual enrollment.

"It clearly doesn't rely on racial boundaries about being an Indian," Berger said of the test. "It also doesn't rely only on the fact that [a person] is not enrolled in a tribe or eligible for enrollment in a tribe."

In the case issued yesterday, prominent activist and actor Russell Means didn't dispute that he is an enrolled member of the Oglala Sioux Tribe of South Dakota. Instead, he argued that he doesn't fall under the jurisdiction of the Navajo Nation because non-Indians accused of the same crime would not face tribal prosecution.

"Means testified that the difference between an Oglala-Sioux and a Navajo is as different as an American and a French person," the court wrote in its unanimous opinion. "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. 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."

As with the other cases, however, the 9th Circuit responded that the issue is not one of race. "The [Duro fix] subjects Means to Navajo criminal jurisdiction, not because of his race, but because of his political status as an enrolled member of an Indian tribe, even though it is a different tribe than the one that seeks to assert jurisdiction over him," the court wrote.

But to Means, there is nothing fair about the "fix" that now applies to him. "We are all American citizens under one class of citizenship, therefore Indian law is unconstitutional," he said yesterday in an interview. "It is apartheid, it is segregationist, and therefore horrendously racist."

Duro Fix:
Indian Civil Rights Act (See § 1301 Definitions)

Court Decisions:
Russell Means v. Navajo Nation (August 23, 2005) | US v. Bruce (January 13, 2005) | In Re: Duane Garvais (December 2, 2004)