FILED

United States Court of Appeals

Tenth Circuit

July 29, 2009

Elisabeth A. Shumaker

Clerk of Court

PUBLISH

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 08-2190

DIONYSIUS SPENCER FOX,

Defendant-Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW MEXICO

(D.C. NO. CR 05-00772-JB-1)

Laura Fashing, Assistant United States Attorney, Albuquerque, New Mexico

(Gregory J. Fouratt, United States Attorney, with her on the brief) for PlaintiffAppellee.

Roger A. Finzel, Assistant Federal Public Defender, Albuquerque, New Mexico,

for Defendant-Appellant.

Before McCONNELL, HOLLOWAY and BALDOCK, Circuit Judges.

McCONNELL, Circuit Judge.

Dionysius Fox, a member of the Navajo Nation, was arrested on the Navajo

Reservation on an unrelated charge and found in possession of a shotgun and a
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rifle. Mr. Fox is a convicted felon, subject to the provisions of 18 U.S.C. §

922(g)(1), which prohibits the possession of firearms by those previously

adjudged guilty of felonies. Although he acknowledges that he is prohibited from

possessing firearms beyond Navajo Reservation land, Mr. Fox asserts that he is

entitled to possess guns for the limited purpose of hunting on the Navajo

Reservation, pursuant to an 1868 Treaty between the United States and the Navajo

Nation. We conclude, however, that Mr. Fox has relinquished any treaty right to

use firearms for hunting purposes, and therefore affirm the judgment of the

district court.

I. Background

The facts underlying Mr. Fox’s arrest are not under dispute. In March

2005, Navajo Nation Police found Mr. Fox asleep and intoxicated while in a

running vehicle in his sister’s driveway. After arresting Mr. Fox for driving

under the influence of alcohol, the police found a double-barrel shotgun and a

rifle with a scope under a floorboard in the trunk of the car. Mr. Fox claimed that

he had borrowed the guns from friends in order to hunt. Mr. Fox had previously

been convicted of several felonies, including aggravated assault, resisting arrest,

escape, and attempted sexual intercourse without consent. See Aple. Br. 3–4. 

Mr. Fox was therefore charged with violating 18 U.S.C. § 922(g)(1), which

provides that “[i]t shall be unlawful for any person . . . who has been convicted in
1

For the first time on appeal, Mr. Fox also argues that 18 U.S.C. § 922(g)

violates the Second Amendment. Because Mr. Fox voluntarily and intelligently

entered his guilty plea, preserving only an appeal on the basis of his alleged treaty

right, he has waived all other non-jurisdictional challenges to his conviction. See

United States v. Wright, 43 F.3d 491, 494 (10th Cir. 1994). 

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any court of a crime punishable by imprisonment for a term exceeding one year . .

. to possess in or affecting commerce, any firearm . . . .”

Although Mr. Fox acknowledged that he would otherwise be prohibited

from possessing a firearm on account of his past felonies, he argues that an 1868

Treaty between the United States and the Navajo Nation guarantees him the right

to hunt on his reservation. After an evidentiary hearing, the district court denied

Mr. Fox’s motion to dismiss the indictment or present an affirmative defense

based on his alleged treaty right. The court found that “the Treaty of 1868

concerns the Navajo Indian Tribe’s right to hunt, not individual Navajo Indians’

right to hunt.” Dist. Ct. Op. 1. As a result, although the court agreed that 18

U.S.C. § 922(g)(1) did not abrogate the Treaty of 1868, it concluded that

imposing criminal liability on Mr. Fox did not conflict with any right protected

under the Treaty. Dist. Ct. Op. 11. Following the district court’s ruling, Mr. Fox

pled guilty pursuant to a plea agreement, while reserving his right to appeal the

district court’s ruling on his motion to dismiss the indictment or present an

affirmative defense. This appeal followed.1

II. Discussion
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In order to ascertain whether Mr. Fox might be exempt from prosecution

under 18 U.S.C. § 922(g), we must evaluate both whether the Treaty of 1868

conferred a right to hunt on the Navajo Reservation that may be asserted by an

individual member of the Navajo Nation and whether Mr. Fox may exercise such

a right. We begin with first principles. When a federal law of general

applicability is silent on the issue of applicability to Indian tribes, we have

explained that it applies equally to Indians unless: “(1) the law touches ‘exclusive

rights of self-governance in purely intramural-matters’; (2) the application of the

law to the tribe would ‘abrogate rights guaranteed by Indian treaties’; or (3) there

is proof ‘by legislative history or some other means that Congress intended [the

law] not to apply to Indians on their reservations . . . .’” Nero v. Cherokee Nation

of Oklahoma, 892 F.2d 1457, 1462–63 (10th Cir. 1989) (citation omitted). In any

of these three situations, we look for a “clear and plain” expression signaling

Congress’ intention to abrogate Indian treaty rights. United States v. Dion, 476

U.S. 734, 738 (1986). Although Congress need not declare its intent to abrogate

the treaty right expressly, we will not infer such an intent in the absence of “clear

evidence that Congress actually considered the conflict between its intended

action on the one hand and Indian treaty rights on the other, and chose to resolve

that conflict by abrogating the treaty.” Id. at 740.

Both parties agree that 18 U.S.C. § 922(g) is a law of general applicability

which is silent regarding the law’s application to Indians. See Aplt. Br. 9; Aple.
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Br. 10. The government also concedes that the felon-in-possession statute itself

“does not abrogate the Navajo tribe’s right to hunt.” Aple. Br. 7. Whether

application of § 922(g) to Mr. Fox would abrogate rights guaranteed by the 1868

Treaty depends therefore primarily on the scope of the treaty right and Mr. Fox’s

eligibility to assert it.

The Scope of Hunting Rights Guaranteed by the Treaty of 1868

The Supreme Court has noted that Indians “enjoy exclusive treaty rights to

hunt . . . on lands reserved to them, unless such rights were clearly relinquished

by treaty or have been modified by Congress.” United States v. Dion, 476 U.S.

734, 738 (1986) (citing FELIX COHEN, HANDBOOK OF FEDERAL INDIAN LAW 449

(1982)). “These rights need not be expressly mentioned in the treaty.” Dion, 476

U.S. at 738; see also Menominee Tribe of Indians v. United States, 391 U.S. 404,

406 & n.2 (1968) (noting that hunting and fishing were “normal incidents of

Indian life” and concluding that such rights were reserved by treaty even though

“[n]othing was said in the 1854 treaty about hunting and fishing rights”). Article

II of the Treaty of 1868 provides that the land making up the Navajo Reservation

“is hereby, set apart for the use and occupation of the Navajo tribe of Indians.” 

Treaty Between the United States of America and the Navajo Tribe of Indians,

Aug. 12, 1868, 15 Stat. 667 (“Treaty of 1868”). We view this general language as

sufficient to indicate that the Treaty of 1868 preserved for the Navajo Nation the

right to hunt on reservation lands.
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Although the government agrees that the Treaty of 1868 codified the

Navajo tribe’s right to hunt on the reservation, it argues that hunting rights

created by the Treaty of 1868 “belong to the tribe, not to individual members of

the tribe.” Aple. Br. 7. Both of the other circuits to consider this question in the

context of the prosecution of a tribal member pursuant to 18 U.S.C. § 922(g) have

reached the same conclusion. In United States v. Three Winchester 30-30 Caliber

Lever Action Carbines, 504 F.2d 1288 (7th Cir. 1974) (hereinafter “Three

Carbines”), the Seventh Circuit found that a convicted felon, a Menominee

Indian, was not exempt from prosecution under a predecessor statute to § 922(g)

even though he allegedly possessed weapons for the purpose of hunting on lands

to which his tribe retained hunting rights by treaty. The court determined that

“[t]he treaty rights allegedly abridged belong to the tribe as a whole and not to

any one individual.” Id. at 1292. As a result, the court concluded that by

enforcing the felon-in-possession statute, “the government has not made the

exercise of a treaty right illegal, but rather the defendant’s own actions have

limited him from participating fully in his tribe’s hunting rights.” Id. (emphasis

added). For similar reasons, the Ninth Circuit upheld a Colville Indian’s

conviction under § 922(g) in United States v. Gallaher, 275 F.3d 784, 788–89

(9th Cir. 2001). Relying largely on Three Carbines, the court reasoned that

“Gallaher lost his right as a Colville Indian to hunt by committing felony crimes.” 

Id. at 789.
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We are skeptical of the position that hunting rights guaranteed by treaty

only benefit the tribe collectively, as opposed to its individual members. To be

sure, “[t]he very great majority of Indian treaties create tribal, not individual,

rights.” Dry v. United States, 235 F.3d 1249, 1256 (10th Cir. 2000) (quoting

Hebah v. United States, 428 F.2d 1334, 1337 (Ct. Cl. 1970)). But while such

treaties are the product of negotiations with tribes as collective entities, there can

be little doubt that they endow individual tribal members with rights and

responsibilities. As the Supreme Court commented in McClanahan v. State Tax

Comm’n of Arizona, 411 U.S. 164, 181 (1973), “[w]e cannot accept the notion

that it is irrelevant whether [the law] infringes on (appellant’s) rights as an

individual Navajo Indian . . . . To be sure, when Congress has legislated on Indian

matters, it has, most often, dealt with the tribes as collective entities. But those

entities are, after all, composed of individual Indians, and the legislation confers

individual rights.” (quotation and citation omitted). Over one hundred years ago,

when addressing the applicability to individual Indians of fishing rights preserved

by a treaty between the United States and the Yakima Nation, the Supreme Court

explained:

[T]he treaty [creating a reservation] was not a grant of rights to the

Indians, but a grant of right from them—a reservation of those not

granted . . . . Reservations were not of particular parcels of land, and

could not be expressed in deeds, as dealings between private

individuals. The reservations were in large areas of territory, and the

negotiations were with the tribe. They reserved rights, however, to

every individual Indian, as though named therein. 
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United States v. Winans, 198 U.S. 371 (1905) (emphasis added); see also Mason

v. Sams, 5 F.2d 255, 258 (W.D.Wash. 1925) (“The treaty was with the tribe; but

the right of taking fish at all places within the reservation, and usual and

accustomed grounds and stations outside the reservation, was plainly a right

common to the members of the tribe—a right to a common is the right of an

individual of the community.”) (emphasis added).

Accordingly, while acknowledging “[t]he right to hunt and fish on

reservation land is a long-established tribal right,” we have long recognized that

“[i]ndividual Indians . . . enjoy a right of user in the tribe’s hunting and fishing

rights.” United States v. Felter, 752 F.2d 1505, 1509 (10th Cir. 1985). The right

of user in a tribal right to hunt or fish confers “a personal right” upon which an

individual member of the tribe may rely. Hackford v. Babbit, 14 F.3d 1457, 1467

(10th Cir. 1994). Likewise, the Supreme Court has explicitly held that such

hunting treaty rights “can be asserted by . . . an individual member of the Tribe.” 

Dion, 476 U.S. at 738 n.4. We therefore agree with Mr. Fox that the Treaty of

1868 guarantees hunting rights that may be asserted by individual Navajos.

Mr. Fox’s Eligibility to Assert a Treaty Right

Although we find that individual Navajos may assert their treaty-guaranteed

hunting rights as a general matter, this does not make Mr. Fox eligible to do so. 

Convicted felons—even those whose terms of imprisonment have been

completed—are often subject to legal obligations and restrictions that differ from
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those of the general population. See Green v. Berge, 354 F.3d 675, 680 (7th Cir.

2004) (Easterbrook, J., concurring). “A broad range of choices that might

infringe [even one’s] constitutional rights in free society fall within the expected

conditions . . . of those who have suffered a lawful conviction.” McKune v. Lile,

536 U.S. 24, 36 (2002). Persons convicted of felonies often lose the right to serve

on juries, to vote, and of course, the right to possess firearms. See Margaret H.

Lemos, The Commerce Power and Criminal Punishment: Presumption of

Constitutionality or Presumption of Innocence, 84 Tex. L. Rev. 1203, 1235

(2006). If citizens may forfeit their most precious constitutional rights by

commission of a felony, it is not surprising that members of Indian tribes may

similarly forfeit important treaty rights.

Thus, contrary to Mr. Fox’s assertions, the Treaty of 1868 does not insulate

him from the consequences of his criminal activity. Indeed, the treaty itself

provides that members of the Navajo Nation who commit crimes forfeit privileges

as a result of their actions. Article I of the Treaty stipulates that “[i]f 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 . . . the Navajo tribe agree that they will . . . deliver up the wrongdoer to

the United States, to be tried and punished according to its laws.” (emphasis

added). The implication seems clear that both signatories to the Treaty
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envisioned that members of the Navajo Nation committing crimes would lose

certain rights under the treaty. 

If we were to read the treaty right as Mr. Fox asks us to, it is hard to see

how any Navajo could be convicted of any federal crime of general applicability. 

Incarceration in federal prison is obviously incompatible with a number of treaty

rights: the right to live in the Navajo reservation (Article II), the right to

commence farming (Article V), and of course, the right to hunt. Mr. Fox’s claim

is essentially that any federal law restricting his ability to hunt on the Navajo

reservation cannot apply to him in the absence of “clear evidence that Congress

actually considered the conflict between its intended action on the one hand and

Indian treaty rights on the other.” Dion, 476 U.S. at 740. But any federal

criminal laws resulting in incarceration have the effect of restricting the

malefactor’s ability to hunt. It surely is not the case that Navajos are immune

from prosecution for fraud, drug offenses, antitrust violations, insider trading, or

any other number of federal crimes by virtue of the fact that the United States

guaranteed hunting rights to their tribe.

When Congress passed 18 U.S.C. § 922(g)(1) and its predecessors, it

affixed a collateral regulatory consequence to all felony convictions as if it had

amended each felony individually. Just as Mr. Fox lost the opportunity to hunt

while physically incarcerated as a result of his conviction, 18 U.S.C. § 922(g)(1)

prevents Mr. Fox from hunting with firearms as though it was explicitly part of
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his sentence for his earlier felonies. All of Mr. Fox’s felony convictions postdate the enactment of the rule; thus, it was well-established on the date that he

committed each of his felonies that a conviction would carry repercussions

including the loss of his right to possess firearms. Notwithstanding the existence

of this rule, Mr. Fox committed several felonies against persons subject to the

authority of the United States. See Presentence Report 8, 11, 13 (describing Mr.

Fox’s convictions for attempted sexual intercourse without consent, aggravated

assault, and attempted aggravated assault). As the treaty itself envisioned, the

United States was free to “punish[] [Mr. Fox] according to its laws.” Treaty of

1868, Article I.

III. Conclusion

For the foregoing reasons, we AFFIRM the judgment of the district court.