The Law of Their Land

By Nancy Waring
Supreme court justices have heard weighty oral arguments in the Ames Courtroom over the years, but the cases have been fictional, penned by legal thinkers expressly for the Ames Moot Court Competition. So it was an unprecedented occasion in February when the three justices of the Navajo Nation Supreme Court came to Ames to hear Navajo Nation v. Russell Means, a real case, dealing with issues of Navajo Common Law and equal protection under the U.S. Constitution, the power of Congress to regulate Indian affairs, and the jurisdiction of Navajo courts.

The defendant in the case was Russell Means, the high-profile American Indian Movement activist-turned-Hollywood-actor. Means, a member of the Oglala Sioux Nation who was married to a Navajo woman at the time of the alleged crime, was charged in 1997 with assaulting his then father-in-law, a member of the Omaha tribe, and another, Navajo man. Means took his case to the Navajo Nationís high court, challenging the authority of the Nationís Chinle District Court to prosecute him.

Seated in the Ames Courtroom beneath the flag of the Navajo Nation, Chief Justice Robert Yazzie, Associate Justice Raymond Austin, and Justice-designate Irene Toledo heard first from Meansís attorney, John Trebon, who argued that under the terms of the Treaty of 1868, the Navajo Nation does not have criminal jurisdiction over non-member Indians. Trebon further argued that Congress created an unconstitutional racial distinction between Indians and non-Indians in its 1991 legislation giving tribes the power to prosecute non-member Indians such as Russell Means, while non-Indians remain outside tribal criminal jurisdiction. In the 1991 legislation, Congress overruled - without the authority to do so, according to Trebon - the U.S. Supreme Courtís 1990 decision in Duro v. Reina, which had denied Indian tribes the right to exercise criminal jurisdiction over Indians from other tribes. Treating non-member Indians and non-Indians differently violates the Constitutionís Equal Protection clause, Trebon said.

Indian Law Study at HLS
Students who want to study Indian law can now choose from courses including Federal Indian law, Indigenous Peoples in International Law, and Tribal Legal Practices, offered this year for the first time and taught by Professor Leroy Little Bear of Harvard Universityís Native American Program. In addition, through a new clinical project this spring, HLS students and University of Arizona College of Law students collaborated on the development of a sovereignty model treaty for the Carrier Sekani Tribal Council of British Columbia. The project was supervised by Professor Joseph Singer í81 and University of Arizona College of Law Professor Robert Williams í80, who notes that "Harvard has vaulted into a leading position in Indian law, offering as many courses and clinical components as major law schools in the heart of Indian country." In January Williams returns as visiting professor to teach Federal Indian Law, this time with a new clinical component - a two-week Navajo Supreme Court clerkship. Fundraising is underway for an endowed visiting professorship in Native American Legal Studies, an effort Assistant Dean for Academic Affairs Alan Ray says reflects "the Schoolís growing prominence as a leader in Indian law, and Dean Clarkís recognition of the importance of Indian law in American legal culture."

The Navajo Nationís acting chief prosecutor, Donovan Brown, said that Means consented to the jurisdiction of the Navajo Nation by marrying a Navajo and by conducting business that led to benefits from the Navajo Nation. In arguing that from time immemorial Navajos have had jurisdiction over non-Navajos who commit illegal acts in Navajo country, Brown drew on Navajo legend - a frequent practice in Navajo Court proceedings according to Chief Justice Yazzie - recounting the parable of two Navajo cultural heroes, twins named "Monster Slayer" and "Born for Water." The twins appealed to the creator, Father Sun, for assistance against non-Navajo "monsters" who were attacking Navajos and Anasazi Indians. The twinsí appeal was answered with a gift of weapons to protect their people, which Brown said "demonstrates the creatorís grant of jurisdiction to Navajos over non-Navajos." He also claimed that Congress did in fact have the right to overrule the Supreme Court in the Duro case.

According to Indian law expert Professor Joseph Singer í81, in deciding the case, "the Navajo Supreme Court faces an almost impossible task. It must enforce law in a jurisdictional framework that splits power between tribal, federal, and state governments, and which does so in inconsistent and often unpredictable ways. At the same time the Court must remain true to Navajo traditions." Singer predicts that regardless of the Navajo Nation Supreme Courtís decision, the issue of whether an Indian tribe can arrest and criminally prosecute a member of another Indian tribe will likely be heard eventually by the U.S. Supreme Court.

Indian Country Comes to Harvard
Since Robert Yazzie became chief justice of the Navajo Nationís Supreme Court in 1992, he has welcomed opportunities for his court to sit at law schools, to demonstrate its workings, and to discuss the future of Indian judicial systems, whose legitimacy he says is constantly questioned. The court has visited ten schools, including Stanford Law School, the University of Michigan Law School, the University of New Mexico School of Law, and HLS. "Some of the best legal minds in the country are at Harvard," says Yazzie. "The students are future leaders. The more we can inform them about Indian law issues, the better."

Plans for the HLS event were set in motion last spring, when Robert Williams í80, of the University of Arizona College of Law in Tucson and a 1999 Winter Term HLS visiting professor, approached Yazzie at an Indian law conference in British Columbia and asked if the justice would be interested in having his court come to HLS. Yazzie liked the idea, so Williams proposed it to Dean Robert Clark í72, who responded enthusiastically. Williams, a member of the Lumbee tribe who during his student days was the only Indian at HLS, applauds Dean Clark for "bringing Indian country to Harvard." The justices selected the Means case because of its important implications for the sovereignty of Indian law.

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