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