FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

RUSSELL MEANS, 

Petitioner-Appellant,

v.

NAVAJO NATION, a federally

recognized Indian Tribe; RAY No. 01-17489

GILMORE, Judge of the Judicial D.C. No. District of Chinle, Navajo Nation,  CV-99-01057-EHC Arizona; ROBERT YAZZIE, Chief

Justice of the Navajo Nation, ORDER AND

Respondents-Appellees, OPINION

and

UNITED STATES OF AMERICA,

Respondent-IntervenorAppellee. 

Appeal from the United States District Court

for the District of Arizona

Earl H. Carroll, District Judge, Presiding

Argued and Submitted October 10, 2002

Submission withdrawn November 19, 2003

Resubmitted January 28, 2005*

San Francisco, California

*We withdrew submission of this case when the Supreme Court granted

certiorari in United States v. Lara, 324 F.3d 635 (8th Cir.), cert. granted,

539 U.S. 987 (2003), rev’d, 541 U.S. 493 (2004), because Lara appeared

likely to resolve many of the important and difficult issues presented in

this case. Lara was decided April 19, 2004, but on June 10, 2004, the

United States advised the court that because this case challenged the constitutionality of a federal statute, the United States was entitled to intervene. See 28 U.S.C. § 2403(a); Fed. R. App. P. 44. The United States filed

a motion to intervene as of right on September 2, 2004. We granted the

United States’ motion, and the court subsequently received further briefing

by the intervenor, the parties, and amicus curiae. 

16241
Filed December 13, 2005

Before: Andrew J. Kleinfeld, Johnnie B. Rawlinson,

Circuit Judges, and Justin L. Quackenbush,** District Judge.

Opinion by Judge Kleinfeld

**The Honorable Justin L. Quackenbush, Senior United States District

Judge for the Eastern District of Washington, sitting by designation. 

16242 MEANS v. NAVAJO NATION
COUNSEL

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. 

Jon Metropoulos (briefed), Gough, Shanahan, Johnson &

Waterman, Helena, Montana, for amicus curiae Thomas Lee

Morris and Elizabeth S. Morris. 

16244 MEANS v. NAVAJO NATION
ORDER

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. 

OPINION

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.

Facts

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

1

See Navajo Nation Code tit. 17, § 310. 

2

See Navajo Nation Code tit. 17, § 316. 

MEANS v. NAVAJO NATION 16245
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 OglalaSioux 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 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

3Enrolled membership in the Navajo Nation is conditioned upon no less

than one-fourth degree of Navajo blood. One may not become a Navajo

by adoption or custom, and one cannot become a Navajo if he is an

enrolled member of another Indian Nation or Tribe. See Navajo Nation

Code tit. 1, §§ 701-703. 

4The Navajo Reservation is almost three times the size of New Jersey.

16246 MEANS v. NAVAJO NATION
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. 

Analysis

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

5

See McCoy v. Stewart, 282 F.3d 626, 629 (9th Cir. 2002); Moore v.

Nelson, 270 F.3d 789, 790-92 (9th Cir. 2001). 

MEANS v. NAVAJO NATION 16247
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. 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

6

Justices of Boston Mun. Court v. Lydon, 466 U.S. 294, 300-02 (1984).

7Hensley v. Mun. Court, San Jose-Milpitas Judicial Dist., Santa Clara

County, 411 U.S. 345, 351-52 (1973). 

8

See Bernhardt v. County of Los Angeles, 279 F.3d 862, 868 (9th Cir.

2002). 

9Oliphant v. Suquamish Indian Tribe, 435 U.S. 191 (1978). 

10Id. at 194. 

11Id.

16248 MEANS v. NAVAJO NATION
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

[1] 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

[2] 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,

12Id. at 195-96. 

13See Cherokee Nation v. Georgia, 30 U.S. (5 Pet.) 1, 17 (1831). 

14Oliphant, 435 U.S. at 211; see also United States v. Kagama, 118 U.S.

375, 379 (1886). 

15Oliphant, 435 U.S. at 212. 

16United States v. Wheeler, 435 U.S. 313 (1978). 

17Id. at 323, 326-29. 

18Duro v. Reina, 495 U.S. 676 (1990). 

19Id. at 679. 

20See Indian Citizenship Act of 1924, 8 U.S.C. § 1401(b). 

21Duro, 495 U.S. at 692-93. 

22See Pub. L. 101-511, Title VIII, § 8077(b)-(c), 104 Stat. 1892 (1990).

23Indian Civil Rights Act of 1968, 25 U.S.C. §§ 1301-1303. 

MEANS v. NAVAJO NATION 16249
hereby recognized and affirmed, to exercise criminal 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 Act), says it applies to

“[a]ny Indian.”

27 In United States v. Antelope,28 enrolled Indians prosecuted under the Major Crimes Act argued that they

were denied equal protection of the laws, because, had they

not been Indians, they would have been prosecuted under

more favorable state law. The Court described the federal

scheme as one in which “[e]xcept for the offenses enumerated

in the Major Crimes Act, all crimes committed by enrolled

Indians against other Indians within Indian country are subject

to the jurisdiction of tribal courts.” The Court rejected the

Equal Protection challenge because “respondents were not

subjected to federal criminal jurisdiction because they were of

the Indian race but because they were enrolled members of

the Coeur d’Alene Tribe.”

29 The Court pointed out that “federal jurisdiction under the Major Crimes Act does not apply

2425 U.S.C. § 1301(2). 

2518 U.S.C. § 1153. 

2625 U.S.C. § 1301(4). 

27See 18 U.S.C. § 1153(a). 

28United States v. Antelope, 430 U.S. 641 (1977). 

29Id. At 646. 

16250 MEANS v. NAVAJO NATION
to ‘many individuals who are racially to be classified as “Indians.” ’ ”

30 The Court noted in dictum that lower courts had

held that enrollment was not an “absolute” requirement for

federal jurisdiction in some circumstances, but because

respondents were enrolled, the Court was “not called upon to

decide” whether enrollment was an absolute requirement and

“therefore intimate[d] no views on the matter.”

31

[3] Taken together, the 1990 Amendments, the Major

Crimes Act, and Antelope mean that the criminal jurisdiction

of tribes over “all Indians” recognized by the 1990 Amendments means all of Indian ancestry who are also Indians by

political affiliation, not all who are racially Indians. For that

reason, subjecting Means to tribal court jurisdiction but not

non-Indians, is, as we explain further below, not a racial classification. 

Means argues that the 1990 Amendments were outside the

powers of Congress because they were an unconstitutional

delegation of federal governmental authority and because they

went beyond the congressional power authorized under the

Indian Commerce32 and Treaty33 Clauses. Indian tribes are not

bound by the United States Constitution in the exercise of

their powers, including their judicial powers,34 so federal judicial power over nonmembers could not be delegated to them.35

Following the 1990 Amendments, Means’s theory was

tested in other cases. Double jeopardy cases examined

whether the statutory language, “recogniz[ing] and affirm-

[ing]” the power of tribes over nonmember Indians rather than

30Id. at 646 n.7 (quoting Morton v. Mancari, 417 U.S. 535, 553 n.24

(1974)). 

31Id. At 646-47, n. 7. 

32U.S. Const. art. I, § 8, cl. 3. 

33U.S. Const. art. II, § 2, cl. 2. 

34See Talton v. Mayes, 163 U.S. 376, 382-85 (1896). 

35See Duro, 495 U.S. at 686. 

MEANS v. NAVAJO NATION 16251
“delegating” it, avoided double jeopardy problems when both

a tribe and the federal government punished someone for the

same conduct. If the tribe was exercising its inherent sovereign authority, an Indian defendant could be punished in both

the tribal court as well as in federal district court under the

“dual sovereignty” doctrine.36 If the tribe was exercising delegated federal power, then the federal government would be

punishing the Indian twice for the same conduct, which it

could not do under the double jeopardy clause.37 More

broadly, after the Supreme Court in Duro had concluded that

the tribe had not retained sovereign power over nonmember

Indians,38 the question was whether Congress even had the

ability to “recognize” an inherent power.39

[4] These questions raised by Means’s statutory argument40

have, subsequent to the original briefing in this case, been

definitively answered by the Supreme Court. United States v.

Lara41 holds that “Congress does possess the constitutional

power to lift the restrictions on the tribes’ criminal jurisdiction over nonmember Indians as the statute seeks to do.”

42 As

for whether the tribe’s exercise of criminal jurisdiction was a

delegated power or an inherent sovereign power, the Court

held, with certain reservations, that “the Constitution permits

tribes, as an exercise of their inherent tribal authority, to prosecute nonmember Indians.”

43 Thus, except for the questions

36See, e.g., United States v. Lara, 324 F.3d 635, 636 (8th Cir. 2003) (en

banc), rev’d, 541 U.S. 193 (2004); United States v. Enas, 255 F.3d 662,

675 (9th Cir. 2001) (en banc). 

37See Enas, 255 F.3d at 667. 

38See Duro, 495 U.S. at 679. 

39See Enas, 255 F.3d at 667-75. 

40Cf. Enas, 255 F.3d at 665; Means v. N. Cheyenne Tribal Court, 154

F.3d 941, 942 (9th Cir. 1998), overruled in part, Enas, 255 F.3d at 675

n.8. 

41United States v. Lara, 541 U.S. 193 (2004). 

42Id. at 200. 

43Id. at 210. 

16252 MEANS v. NAVAJO NATION
reserved in Lara,

44 it is settled law that, pursuant to the 1990

amendment to the Indian Civil Rights Act, an Indian tribe

may exercise inherent sovereign judicial power in criminal

cases against nonmember Indians for crimes committed on the

tribe’s reservation. 

III. Equal Protection and Due Process

A. Equal Protection

Lara expressly declined to answer the question of whether

the tribal criminal prosecution of a nonmember Indian would

violate the Due Process and Equal Protection guarantees of

the Fifth Amendment.45 Means argues that by recognizing

tribal criminal jurisdiction over nonmember Indians, the 1990

Amendments violate the equal protection guarantees of the

Fifth Amendment46 and the Indian Civil Rights Act47 because

they discriminate against him as an Indian, subjecting him to

adverse treatment on account of his race. 

Means’s equal protection argument has real force. He

argues that, although the 1990 Amendments permit the Navajo tribe to criminally prosecute its own members and members of other Indian tribes, the Navajo tribe cannot

constitutionally prosecute whites, blacks, Asians, or any other

non-Navajos who are accused of crimes on the reservation.48

This makes Means’s case different from, say, an Alaskan who

threatens and batters his father-in-law in Los Angeles, and

then is prosecuted by the State of California. Not only can an

Alaskan become a Californian, but the State of California,

although “sovereign,” nonetheless is bound by the Due Pro44See id. at 207-09 (declining to address equal protection and due process challenges to the Indian Civil Rights Act). 

45See id. at 208-09; see also id. at 213-14 (Kennedy, J., concurring). 

46See U.S. Const. amend. V. 

47See 25 U.S.C. § 1302(8). 

48See Oliphant, 435 U.S. at 194. 

MEANS v. NAVAJO NATION 16253
cess and Equal Protection Clauses of the Fourteenth Amendment. Although he is an Indian, Means is nonetheless a citizen

of the United States, entitled to the full protection of the

United States Constitution. But unlike states, when Indian

tribes exercise their sovereign authority they do not have to

comply with the United States Constitution.49 As an OglalaSioux, Means can never become a member of the Navajo

political community, no matter how long he makes the Navajo

reservation his home. 

[5] Despite the force of Means’s argument, we nonetheless

conclude that the weight of established law requires us to

reject Means’s equal protection claim. Morton v. Mancari50

holds (albeit in the distinguishable context of Indian employment preferences by the federal government) that federal statutory recognition of Indian status is “political rather than

racial in nature.”

51 Means argues that Mancari is undermined

by Adarand Constructors, Inc. v. Pena,

52 but both the

Supreme Court and our court have continued to rely on Mancari,

53 and we are bound to follow it under the doctrine of

Agostini v. Felton.

54

49See Talton, 163 U.S. at 382-85; Trans-Canada Enterprises, Ltd. v.

Muckleshoot Indian Tribe, 634 F.2d 474, 476-77 (9th Cir. 1980).

Although the Indian Civil Rights Act imposes due process limitations

upon Indian tribes, 25 U.S.C. § 1302(8), not all the constitutional restraints

are imposed. They are statutory, not constitutional, and the sole remedy

for violations is habeas corpus. See Santa Clara Pueblo v. Martinez, 436

U.S. 49, 56-57 (1978). 

50Morton v. Mancari, 417 U.S. 535 (1974). 

51Id. at 553 n.24. 

52Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 227 (1995); see

also Johnson v. California, 543 U.S. 499, 125 S.Ct. 1141, 1147-48 (2005).

53See Rice v. Cayetano, 528 U.S. 495, 518-22 (2000); Kahawaiolaa v.

Norton, 386 F.3d 1271, 1279 (9th Cir. 2004). 

54Agostini v. Felton, 521 U.S. 203, 237 (1997); see also United States

v. Hatter, 532 U.S. 557, 567 (2001); State Oil Co. v. Khan, 522 U.S. 3,

20 (1997); Rodrigues de Quijas v. Shearson/Am. Express, Inc., 490 U.S.

477, 484 (1989). 

16254 MEANS v. NAVAJO NATION
Mancari held that an employment preference for Indians in

the Bureau of Indian Affairs was not “invidious racial discrimination in violation of the Due Process Clause of the Fifth

Amendment”

55 because “it is not even a ‘racial’ preference.”56

“[L]egislation that singles out Indians for particular and special treatment” is in a special category because of the historical relationship of the United States with the Indians and the

Indian Commerce Clause,57 and “[a]s long as the special treatment can be tied rationally to the fulfillment of Congress’

unique obligation toward the Indians, such legislative judgments will not be disturbed.”

58 The preference at issue passed

this “rational tie” standard, because it was “reasonable and

rationally designed to further Indian self-government.”

59

[6] We conclude that a law subjecting nonmember Indians

to tribal criminal jurisdiction in “Indian country” passes the

“rational tie” standard of Mancari. First, recognizing criminal

jurisdiction of tribal courts over nonmember Indians furthers

Indian self-government. The Navajo reservation, larger than

many states and countries, has to be able to maintain order

within its boundaries. The 1990 Amendments to the Indian

Civil Rights Act were meant to protect Indians and others

who reside in or visit Indian country against lawlessness by

nonmember Indians who might not otherwise be subject to

any criminal jurisdiction. As the Navajo Supreme Court notes,

there are a significant number of Indians who are not Navajos

but live on the Navajo reservation because of intermarriage.

It is a matter of ordinary experience that many people are not

at their best when their marriages break up, so misdemeanor

jurisdiction over nonmember Indians is rationally related to

Indian self-government in an area where rapid and effective

55Mancari, 417 U.S. at 551. 

56Id. at 553. 

57See id. at 551-55. 

58Id. at 555. 

59Id.

MEANS v. NAVAJO NATION 16255
tribal responses may be needed. The Navajo Nation has a

sophisticated body of published laws, and an experienced

court system in which trained trial and appellate judges adjudicate thousands of cases per year. If Means was not subject

to prosecution in the Navajo courts, he could not be prosecuted in any court. The state of Arizona, like the majority of

states, does not have jurisdiction to try Indians for offenses

committed on a reservation,60 and there is no federal court

jurisdiction because Means’s alleged offenses do not fall

within the Major Crimes Act.61

[7] Second, the reason Congress can recognize the power

of a tribe to exercise criminal jurisdiction over a nonmember

Indian like Means — but not over a nonmember, non-Indian

who like Means might become involved in a domestic dispute

— is the same reason given by the Supreme Court for the

employment preference in Mancari: Indian tribal identity is

political rather than racial, and the only Indians subjected to

tribal court jurisdiction are enrolled or de facto members of

tribes, not all ethnic Indians. 

In United States v. Antelope, Indians who were enrolled

members of the Coeur d’Alene Tribe challenged the applicability of federal law to a prosecution for a murder that had

taken place on the tribe’s reservation.62 Had they been of a

different race, they argued, a more favorable provision of

state law would have applied under the Assimilative Crimes

Act,63 rather than the less favorable federal provision that

applied under the Major Crimes Act.64 But the Supreme Court

noted its holding in Mancari that the employment preference

60See, e.g., Application of Denetclaw, 320 P.2d 697, 698-701 (Ariz.

1958). 

61See 18 U.S.C. § 1153. 

62Antelope, 430 U.S. at 642-44. 

6318 U.S.C. § 13; see United States v. McBratney, 104 U.S. 621, 621-24

(1881). 

6418 U.S.C. § 1153. 

16256 MEANS v. NAVAJO NATION
was granted to Indians “not as a discrete racial group, but

rather, as members of quasi-sovereign political entities,”

65 and

extended Mancari even though the context did not involve

Indian self-government. The Court found that the respondents

were subjected to federal law “not because they are of the

Indian race but because they are enrolled members of the

Coeur d’Alene tribe.”

66

There is no sound distinction in principle between Antelope

and this case. The statute subjects Means to Navajo criminal

jurisdiction not because of his race but because of his political

status as an enrolled member of a different Indian tribe.67 We

need not decide whether the same principle would apply if he

had been expelled from or had voluntarily and formally withdrawn from his tribe68 prior to committing the alleged misdemeanors because those hypothetical facts are not claimed in

this case. Morton v. Mancari suggests that Indians “emancipated from tribal relations” or whose tribes have been terminated are not subject to the Major Crimes Act even if they are

“racially to be classified as ‘Indians.’ ”

69

Our court is among the lower courts that have gone where

the Supreme Court did not in Antelope, holding that formal

65Antelope, 430 U.S. at 645 (quoting Mancari, 417 U.S. at 554). 

66Antelope, 430 U.S. at 646. 

6725 U.S.C. § 1301(2); see Antelope, 430 U.S. at 646. 

68The authorities suggest that members of Indian tribes can renounce

their membership. See Felix S. Cohen’s Handbook of Federal Indian Law

22 (1982 ed.) (“Tribal membership is a bilateral relation, depending for its

existence not only upon the action of the tribe but also upon the action of

the individual concerned. A member of any Indian tribe is at liberty to terminate the tribal relationship whenever he or she so chooses, although

such termination will not lightly be inferred.”); see, e.g., Smith v. Bonifer,

154 F. 883, 886 (C.C.D. Or. 1907) (No. 2,683), aff’d, 116 F. 846 (9th Cir.

1909); United States ex rel. Standing Bear v. Crook, 25 F. Cas. 695, 699

(C.C.D. Neb. 1879) (No. 14,891); Thompson v. County of Franklin, 180

F.R.D. 216, 225 (N.D.N.Y. 1998). 

69Morton, 430 U.S. at 646-47, n. 7. 

MEANS v. NAVAJO NATION 16257
enrollment in a tribe is not an “absolute” requirement for

Indian status even though it is the “common evidentiary

means of establishing Indian status.”

70 United States v. Bruce71

was a federal prosecution under 25 U.S.C. § 1152 (the Indian

General Crimes Act) for assault on a child on an Indian reservation. The defendant in Bruce argued that she was an Indian,

so she was entitled to the benefit of the exception in that statute for crimes committed by an Indian against an Indian. She

was not enrolled in any tribe nor was she eligible for enrollment. We held (over a strong dissent) that she was nevertheless entitled to the benefit of the Indian exception because her

mother’s enrollment, two of her three children’s enrollment,

and other evidence of affiliation with the tribe demonstrated

“ ‘a sufficient non-racial link to a formerly sovereign people’ ”

72

to make her an “Indian” for purposes of the exception 

Means’s case is distinguishable from Bruce, most especially by his tribal enrollment. We therefore can and do leave

for another day the challenging question Bruce invites:

whether a person who was racially Indian, but who was not

enrolled or eligible for enrollment in any tribe, would be subject to tribal court jurisdiction. While Bruce was a federal

prosecution which would have implicitly limited tribal sovereignty if the Indian exception did not apply, this case is a

tribal court prosecution. Means has chosen to affiliate himself

politically as an Indian by maintaining enrollment in a tribe.

His Indian status is therefore political, not merely racial.

Bruce concluded, as we do, that “Tribal courts may . . . prosecute misdemeanors against Indians who are not members of

that tribe.”

73

70United States v. Bruce, 394 F.3d 1215, 1224. (9th Cir. 2005). 

71Id.

72Id. At 1224 (quoting St. Cloud v. United States, 702 F.Supp. 1456,

1461 (D.S.D. 1988)). 

73Id. At 1220. 

16258 MEANS v. NAVAJO NATION
B. Due Process

[8] Because the criminal proceedings against Means in the

Navajo trial court have been stayed pending the outcome of

his jurisdictional challenge, an “as applied” due process challenge to the Navajo trial proceedings would be premature.74

Means’s facial due process challenge to the 1990 Amendments has no force. Although the U.S. Constitution does not

bind the Navajo tribe in the exercise of its own sovereign powers,75 the Indian Civil Rights Act confers all the criminal protections on Means that he would receive under the Federal

Constitution, except for the right to grand jury indictment and

the right to appointed counsel if he cannot afford an attorney.76

The right to grand jury indictment would not pertain regardless, because Means is charged with a misdemeanor.77 The

right to appointed counsel is conferred by the Navajo Bill of

Rights to any person within its jurisdiction.78 Thus as a facial

matter, Means will not be deprived of any constitutionally

protected rights despite being tried by a sovereign not bound

by the Constitution. 

IV. The Treaty of 1868

The war between the United States and the Navajo Nation,

which began in the middle of the U.S. Civil War, ended in

1868 with a treaty79 signed on behalf of the United States by

General William Tecumseh Sherman. Means argues that,

under the terms of this treaty, he may not be criminally prose74See Broadrick v. Oklahoma, 413 U.S. 601, 610 (1973). 

75See Talton, 163 U.S. at 382-85. 

76See 25 U.S.C. § 1302; Santa Clara Pueblo, 436 U.S. at 61; Randall

v. Yakima Nation Tribal Court, 841 F.2d 897, 899-900 (9th Cir. 1988). 

77See U.S. Const. amend. V; cf. Fed. R. Crim. P. 7(a)(2). 

78See Navajo Nation Code tit. 1. 

79Treaty between the United States of America and the Navajo Tribe of

Indians, June 1, 1868, U.S.-Navajo, 15 Stat. 667. 

MEANS v. NAVAJO NATION 16259
cuted by the Navajo tribe but must be turned over to the federal government for trial. 

Means bases his argument on the so-called “bad men”

clauses of the 1868 Treaty. Indian tribes warred, not only with

the federal government, but also with other tribes. Guaranteeing that the Indians would return to a peaceful way of life,

therefore, required some means of dealing with the hostile

foreign tribes. 

One clause in the 1868 Navajo Treaty — which is identical

to language used in a number of Indian Treaties of the time

— says that

If bad men among the whites, or among other people

subject to the authority of the United States, shall

commit any wrong upon the person or property of

the Indians, the United States will, upon proof made

to the agent and forwarded to the Commissioner of

Indian Affairs at Washington City, proceed at once

to cause the offender to be arrested and punished

according to the laws of the United States.80

A second clause, speaking expressly about Indians, is analogous: 

If bad men among the Indians shall commit a wrong

or depredation upon the person or property of any

one, white, black, or Indian, subject to the authority

of the United States and at peace therewith, the Navajo tribe agree that they will, on proof made to their

agent, and on notice by him, deliver up the wrongdoer to the United States, to be tried and punished

according to its laws.81

80Id.

81Id.

16260 MEANS v. NAVAJO NATION
Means argues that even if the Navajo Nation at one time

possessed the sovereign power to assert criminal jurisdiction

over nonmember Indians, it relinquished that right by entering

into the 1868 Treaty, which requires that the Navajo Tribe

deliver the wrongdoer to the United States, to be tried and

punished according to federal, not Indian, law. Means also

argues that the 1990 Amendments to the Indian Civil Rights

Act cannot abrogate the protections to which he is entitled

under the 1868 Treaty because Congress has never expressly

abrogated the treaty. 

The Navajo Nation, however, argues that a discussion

between General Sherman and the Navajo Chief Barboncito

during the treaty negotiations expresses an understanding that

the Navajo were entitled to “drive out” raiders from the Ute

and Apache tribes who might molest them, and that the Indian

“bad men” clause therefore meant to confer jurisdiction over

nonmember Indians, not to remove it. The Navajo Nation also

suggests that we are bound to defer to the understanding of

the treaty expressed well over a century after its adoption by

the Navajo Nation Supreme Court. That court found that the

1868 Treaty provides for criminal jurisdiction over Means

because he entered the Navajo Nation, married a Navajo

woman, and engaged in business and civic activities while

residing on the reservation. 

[9] We accept neither argument because the 1868 Treaty

does not conflict with, and is easily reconciled with, the language of the 1990 Amendments to the Indian Civil Rights Act

that recognizes the inherent sovereign power of the tribe. A

common sense understanding of the treaty language would be

that the United States was obligating itself to protect the

Navajos from “bad men,” of whom the world is never short,

and the Navajos were obligating themselves to turn the “bad

men” over to the United States when appropriate under the

specified conditions.82 The treaty obligates the United States

82Cf. Tsosie v. United States, 825 F.2d 393, 400-02 (Fed. Cir. 1987);

Hebah v. United States, 428 F.2d 1334, 1338-40 (Ct. Cl. 1970). 

MEANS v. NAVAJO NATION 16261
to arrest and punish offenders against the Navajo, under federal law, but it does not say that the Navajo cannot do so on

their own, and there is nothing in the treaty language inconsistent with the concurrent jurisdiction that we have recognized

in other contexts.83

[10] The remedies provided for by the 1868 treaty do not

purport to be exclusive. Under the treaty, Indian offenders are

to be delivered to the United States for prosecution under federal law on request. This provision, however, is conditioned

on a request from the United States’s agent. The treaty conditions have not been fulfilled in this case, so the rendition provision in the treaty does not apply. The United States has not

demanded that the Navajo turn Means over for federal prosecution, and the Navajo have chosen to prosecute Means themselves in tribal court, which the 1990 Amendments to the

Indian Civil Rights Act recognize they have the power to do.

Conclusion

[11] The Navajo Nation is empowered, under the 1990

Amendments, to prosecute and punish Indians for crimes even

though they are not members of the tribe. The denial of

Means’s petition for a writ of habeas corpus is 

AFFIRMED. 

83See Babbitt Ford, Inc. v. Navajo Indian Tribe, 710 F.2d 587, 595-98

(9th Cir. 1983); Arizona ex rel. Merrill v. Turtle, 413 F.2d 683, 685-86

(9th Cir. 1969); see also Williams v. Lee, 358 U.S. 217, 221-22 (1959). 

16262 MEANS v. NAVAJO NATION