Case of the Month: United States v. Juvenile Male 1

by Roger Alford

My vote for the most interesting international law case for the month of May is United States v. Juvenile Male 1, 2006 WL 1427281 (D. Ariz. 2006). The case is an unusual choice as it involves federal district court criminal proceedings against a juvenile charged with sexual abuse of a minor on an Indian reservation in Arizona. Not the typical scenario for a discussion of international law. Yet I chose the case because the arguments of the Navajo Nation are so fascinating as they pertain to the status of Indian tribes under our federal system.

The facts are fairly simple. A juvenile was accused of sexual abuse of a minor on the Navajo Indian reservation in Arizona. He alleges that he is wrongly accused and pursuant to his Sixth Amendment rights, seeks to confront the witnesses against him. In order to support his contention that he is falsely accused, he requests documents regarding his accuser that are in the possession of Navajo government social service agencies. The prosecution supported the juvenile defendant’s Sixth Amendment request for the production of the documents and the court granted the juvenile’s application for subpoenas duces tecum. But the Navajo nation refused to provide the documents.

Why? Navajo lawyers argued that the subpoena would be ignored because “the Navajo Nation is a separate sovereign nation, and as a matter of public policy, foreign subpoenas issued from neighboring sovereigns are not honored.” Instead of complying with this foreign order the juvenile should follow a “routine procedure for domestication of extra-territorial subpoenas through the Navajo Nation courts.” The court granted a second motion to compel, but the Navajo nation again refused to produce the documents. The Navajo lawyers filed motions to quash the order arguing that the “[t]he Navajo Nation’s status as a sovereign nation should be recognized rather than resorting to a foreign court.”

Thus, the Navajo Nation lawyers are arguing that the subpoena issued by the Arizona federal court constituted a foreign and extraterritorial subpoena that must be domesticated before it could be honored. In short, the Navajo Nation lawyers are arguing that the defendant should have pursued his request through the “normal” process of the Navajo nation courts rather than through “extraterritorial” and “foreign” federal courts vested by Congress with federal jurisdiction over major crimes that occur on Indian tribal land.

The district court would have none of it. The opinion is a nice summary of the legal status of Indian tribes under federal law. They are not independent nations, they are entities subject to federal control, a point lost on the Indian lawyers. Here is an excerpt:

The United States of America is a country. Its sovereignty extends to its full geographical limits. And, under Article VI of the United States Constitution, its Constitution and laws “shall be the supreme Law of the Land.” An Indian tribe is not a legal unit of international law. Cayuga Indian Claims (Great Britain v. United States), 20 Am. J. Int’l. L. 574 (1926). An Indian tribe is not a foreign state under the Constitution. Cherokee Nation v. Georgia, 30 U.S. (5 Pet.) 1, 20, 8 L.Ed. 25 (1831) provides that that “[n]o Indian nation or tribe within the territory of the United States shall be acknowledged or recognized as an independent nation, tribe, or power.”

It was thus frivolous for the lawyers representing the Tribe to refer to a federal subpoena as “extra-territorial,” to describe the Tribe as a “separate sovereign nation,” to refer to this court’s processes as “foreign subpoenas issued from neighboring sovereigns,” and to refer to this court as “foreign.” If this rhetoric had come from non-lawyers, one could just dismiss it as hyperbole. But lawyers have an obligation to refrain from making frivolous contentions.

To be sure, federal law permits Indian tribes a limited power of self-government over their own members. And, federal law has generally insulated tribal members from the application of state law while on their reservation. But the Congress of the United States and the Supreme Court of the United States have always made it quite clear that these limited doctrines under federal Indian law have no application when it comes to relationships between Indian tribes and the United States. Here, Congress has vested jurisdiction over major crimes committed by Indians on a reservation in this court. In rejecting a challenge to the constitutionality of the statute, the Supreme Court of the United States said: Indians are within the geographical limits of the United States. The soil and the people within these limits are under the political control of the government of the United States, or of the states of the Union. There exist within the broad domain of sovereignty but these two.

The power of Congress in the area of Indian affairs under Article I, § 8 of the United States Constitution is plenary. It is thus plain that the reasons given by the tribal lawyers to the juvenile for non-compliance with the subpoenas were frivolous.


[F]ederal criminal prosecutions cannot depend upon the vagaries of the Tribe’s decisions to produce records. Compliance with a federal subpoena is not a consensual act. The United States District Court for the District of Arizona is overwhelmed with criminal offenses arising under the Major Crimes Act on the Navajo reservation. All of this would come to a halt if tribal officials and employees believed that compliance with federal process was optional…. No rational system of criminal justice, and certainly no constitutional one, could operate under such a regime.

In our introductory lectures in international law we regularly teach the subject of statehood. A nation is an entity that has a defined territory, a permanent population, under the control of its own government, and that has the capacity to engage in formal relations with other such nations. This case offers a useful heuristic for examining the distinction between nation states and sub-state entities that obviously are confused as to their inferior status.

6 Responses

  1. Similar questions of statehood were raised in an English case last year: R (Alamieyeseigha) v. Crown Prosecution Service [2005] EWHC 2704 (Admin).

    Mr Alamieyeseigha was at all relevant times the Governor and Chief Executive of Bayelsa State, a constituent part of the Federal republic of Nigeria. He therefore claimed immunity ratione personae from prosecution.

    This required the High Court, composed of Mr Justice Collins (the famous international lawyer Sir Lawrence Collins) and Mr Justice Silber, assisted by the famous international lawyer Professor Malcolm Shaw QC as counsel for Mr Alamieyeseigha, to examine whether Bayelsa State was a state under international law. The discussion is worth reading, although parts of it are informed more by binding authority than by international law.

    The Court concluded that it was not necessary for Bayelsa State to have the capacity to enter into foreign relations with other states (in the international legal sense). Nevertheless, many other attributes of statehood (i.e. control over other state functions) were also missing, so the claim for immunity was rejected.

  2. Did the district court discuss Crow Dog, Ex Parte, 109 U.S. 557 (1883)? The facts are different, as I’m assuming the juvenile in the instant case is not an Indian. However, the case is worth noting. I quote from Rennard J. Strickland’s analysis in Kermit L. Hall, ed., The Oxford Guide to United States Supreme Court Decisions (1999):

    ‘Crow Dog, a Brule Sioux, was tried, convicted, and sentenced to death for the murder of another Sioux, who was known as Spotted Tail, in a Dakota territorial court. He sought release in a writ of habeas corpus, arguing that tribal and not federal law should apply because territorial courts lacked jurisdiction over crimes committed by one Indian against another in Indian country.

    Sioux tribal law required that Crow Dog, as punishment for murder, must support Spotted Tail’s dependent relatives but did not subject him to execution. Crow Dog contended that he was not subject to the criminal laws of either Dakota Territory or the United States. The United States maintained that federal criminal jurisdiction over Indian country was acquired under the Sioux Treaty of 1868 interpreted in connection with general federal Indian statutes.

    The Supreme Court held [9-0] that the Dakota territorial court was without jurisdiction. Crow Dog was governed in his relationship with other reservation Indians solely by the tribal laws of the Brule Sioux and was responsible only to the tribal law enforcement authorities. The Court regarded exclusive tribal jurisdiction over tribal members as a surviving attribute of tribal sovereignty despite treaty language that appeared to subject the Sioux to the laws of the United States. [emphasis added]

    The Crow Dog decision did not deny the power of Congress to legislate over Indian affairs or to curtail the scope of Indian self-government. But the Court declared that Congress had not done so in any clear fashion and thus found no congressional intent to limit Indian self-government. The Court stated that the tribes retained their right of “self-government [and] the maintenance of order and peace among their own members.” Unless this power is limited by explicit legislation or surrendered by the tribe, Indian tribes retain exclusive judicial jurisdiction over reservation Indian affairs. Thus today most tribes operate their own tribal court systems. Except to the extent mandated by the Indian Civil Rights Act (1968), the structure and procedure of such courts is determined by the tribes themselves.’

    So if there is confusion as to the ‘inferior status’ of the Navajo Nation (a meaningless metaphor?) it is quite understandable. Indeed, it might help to view the relation between the ‘sub-state’ and the ‘nation-state’ here as analagous to the relation obtaining between the nation-state and the international legal system. In neither case would we want to say the nation-state is no longer ‘sovereign’ in several important senses, yet it seems fair to conclude, with Jean Cohen, that we should abandon the absolutist and decisionist concept of sovereignty in favor of a more ‘relational’ model that ‘disaggregates’ (Slaughter) or ‘unbundles’ (Buchanan) aspects, attributes, or powers of State sovereignty (hence, partial disaggregation or unbundling) while retaining a core meaning of legal identity such that we can still speak of the (ideal) relation of equal sovereignty that exists in the international society of nation-states: ‘when [States] “delegate” jurisdiction to supranational entities, when they establish frameworks for cooperation that create binding rules, they do not thereby lose or divide their sovereignty–indeed, they may even enhance it.’

    In our case, this might suggest conceptualizing the relation between the ‘sub-state’ and the ‘nation-state’ in a manner that takes us beyond formulations of ‘superiority’ and ‘inferiority’ insofar as such terminology can be misleading or opaque when it comes to describing or appreciating the full-bodied dimensions of the relationship between the ‘two’ (actually ‘three’) jurisdictions (sub-state and nation-state on the one hand, society of states/international law and nation-state on the other). Given the high degree of self-governance accorded tribal nations in the past, we might empathize with whatever ‘confusion’ the Indian lawyers evidenced (I happen to think this is a condescending and thus not very charitable interpretation of the legal arguments at play here; or, if not at play, could very well have been).

    In short, in some senses and for some purposes, the Navajo Nation has been, and remains, in fact, a ‘sovereign nation.’ To believe otherwise is to display confusion as to the meaning of the Supreme Court’s references to the ‘right of self-government’ in the above decision. As Strickland says, ‘The broad concepts of tribal self-government articulated in Crow Dog continue as a basic constitutional guide to modern Indian law.’ Even the Indian Bill of Rights ‘is primarily enforceable in Indian forums.’ In his entry on ‘Native Americans’ in Kermit L. Hall, ed., The Oxford Companion to the Supreme Court of the United States, (1992), Strickland writes, ‘The most basic principle of Indian law is that powers lawfully vested in an Indian tribe are not delegated powers granted by express acts, but rather “inherent powers of a limited sovereignty” that have never been extinguished. The Supreme Court in 1831 held that Indian tribes are “domestic dependent nations” that possess those aspects of sovereignty not surrendered or withdrawn by treaty or statute. The tribes began their relationships with the federal government with the sovereign powers of independent nations.’

    I trust this complicates the use of this case as a ‘useful heuristic for examining the distinction between nation states and sub-state entities that obviously are confused as to their inferior status.’

  3. Dear Roger,

    One more matter: in your introductory lectures on international law, specifically those dealing with treaties, do you mention the fact that ‘the Framers saw the Indians as independent peoples and their tribes as independent nations, not as citizens, slaves, or dependents’? Do you discuss the fact that ‘the United States would deal with the tribes through treaties, as it would with any foreign nation’? Do you endeavor to explain how and why that ‘Although many of the Indian treaties predated the Constitution and were, under Art. VI-1.[2.], declared to be the supreme law of the land, the [Supreme] Court conceded to Congress the absolute power to break treaties as it wished’? Of course not a few of the treaties were fraudulent in the first place, but that’s another story. [Quoted material is from Jethro K. Lieberman’s A Practical Companion to the Constitution, 1999]

    With this historical backdrop in place, we can introduce Allen Buchanan’s discussion of ‘[moral] justifications for intrastate autonomy for indigenous peoples’ (bear in mind there’s a lengthy analysis prior to this that any interested reader should look at as well), all of which fall under the category of ‘remedial justifications:’

    ‘There are four distinct and mutually compatible justifications for developing international legal rights to intrastate autonomy for indigenous peoples. First, the creation of intrastate autonomy regimes for indigenous peoples can be required as a matter of rectificatory justice, in order to restore the self-governance of which these peoples were deprived by colonization. Second, intrastate autonomy can provide a non-paternalistic mechanism for protecting indigenous individuals from violations of their individual human rights or those of their ancestors. Third, it many be necessary to establish or augment institutions of self-government for indigenous peoples in order to implement settlements of land claims in cases where lands that were held in common were lost due to treaty violations. Fourth, rectificatory justice can require measures to protect indigenous peoples from the detrimental effects of the disruption of the indigenous customary law that defined and supported their ways of life. However, the best remedy may not be to incorporate indigenous customary law into the state’s legal system. Instead, equipping indigenous peoples with powers of self-government that include the right to make new laws for themselves better accords with the fact that their cultures are dynamic and should not be frozen by attempts to restore customary law that no longer best serves their intereststs.’

    I would hope there are international law scholars out there who are sufficiently provoked by the above to read Buchanan’s further elaboration of these four arguments in his Justice, Legitimacy, and Self-Determination: Moral Foundations for International Law (New York: Oxford University Press, 2004). And I trust there are at least some introductory courses in international law ‘out there’ with the courage to look at Buchanan’s book, or simply to explore in some detail the possible ‘moral foundations for international law.’ Perhaps such explorations will prompt us to be a bit more reluctant or reticent when it comes to lecturing students about Indian tribal lawyers and the putative confusion they labor under regarding their ‘inferior’ status as a ‘sub-state’ entity.

  4. error corrected: ‘…regarding the “inferior” status of their client’s nation as a “sub-state” entity.’

  5. While this is not, strictly speaking, within the ambit of Opinio Juris (although as Roger’s post shows, it could be), there may be some readers interested in the Native American Constitution and Law Digitization Project coordinated by the University of Oklahoma Law Library and the National Indian Law Library of the Native American Rights Fund:

    One of several treats there is the Handbook of Federal Indian Law by Felix S. Cohen (1941).

  6. Still animated by this post, I did some research over the weekend and came up with the following books by way of putting this case in a bigger and different picture than that framed by Roger.

    American Indians & Law: A Brief Bibliography

    Banner, Stuart. How the Indians Lost Their Land: Law and Power on the Frontier. Cambridge, MA: Belknap Press of Harvard University Press, 2005.

    Clark, Blue. Native Liberty, Crown Sovereignty: The Existing Aboriginal Right of Self-Government in Canada. Montreal: McGill-Queens University Press, 1990.

    Clark, Blue. Lone Wolf v. Hitchcock: Treaty Rights & Indian Law at the End of the Nineteenth Century. Lincoln, NE: University of Nebraska Press, 1994.

    Deloria, Vine, Jr. and David E. Wilkins. Tribes, Treaties, and Constitutional Tribulations. Austin, TX: University of Texas Press, 1999.

    Garrow, Carrie E. and Sarah Deer. Tribal Criminal Law and Procedure. Walnut Creek, CA: AltaMira Press, 2004.

    Getches, David H., Charles F. Wilkinson and Robert A. Williams, Jr. Cases and Materials on Federal Indian Law. St. Paul, MN: West Group, 2004.

    Harring, Sidney L. Crow Dog’s Case: American Indian Sovereignty, Tribal Law, and United States Law in the Nineteenth Century. Cambridge, UK: Cambridge University Press, 1994.

    Harring, Sidney L. ‘Indian Law, Sovereignty, and State Law: Native People and the Law,’ in Philip J. Deloria and Neal Salisbury, eds., A Companion to American Indian History. Malden, MA: Blackwell, 2002.

    Pevar, Stephen L. The Rights of Indians and Tribes: The Authoritative ACLU Guide to Indian and Tribal Rights. Carbondale, IL: Southern Illinois University Press, 2002, 3rd ed.

    Pommersheim, Frank. Braid of Feathers: American Indian Law and Contemporary Tribal Life. Berkeley, CA: University of California Press, 1995.

    Prucha, Francis Paul, ed. Documents of United States Indian Policy. Lincoln, NE: University of Nebraska Press, 2000, 3rd ed.

    Richland, Justin B. and Sarah Deer. Introduction to Tribal Legal Studies. Walnut Creek, CA: AltaMira Press, 2004.

    Wilkins, David E. American Indian Sovereignty and the U.S. Supreme Court. Austin, TX: University of Texas Press, 1997.

    Wilkins, David E. American Indian Politics and the American Political System. Lanham, MD: Rowman & Littlefield, 2006, 2nd ed.

    Wilkins, David E. and K. Tsianina Lomawaima. Uneven Ground: American Indian Sovereignty and Federal Law. Norman, OK: University of Oklahoma Press, 2002.

    Williams, Robert A., Jr. The American Indian in Western Legal Thought: The Discourses of Conquest. New York: Oxford University Press, 1990.

    Williams, Robert A., Jr. Linking Arms Together: American Indian Treaty Visions of Law and Peace, 1600-1800. New York: Oxford University Press, 1997.

    Wunder, John R., ed. Native American Sovereignty. New York: Garland, 1996.

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