IN THE U NI TE D S TAT ES C OURT OF APPEALS FOR THE · PDF file23.02.2009 · IN THE U NI TE D S TAT ES C OURT OF APPEALS ... 2009 Case: 08-2190 ... sup rem acy over su bseq ue ntl

No. 08-2190

IN THE UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

____________

UNITED STATES OF AMERICA, Appellee,

v.

DIONYSIUS FOX, Appellant.

____________

On Appeal from the United States District Court

for the District of New Mexico CR 05-772

the Honorable United States District Court Judge John O. Browning,

____________

APPELLANT'S REPLY BRIEF

Oral Argument Is Requested

____________

Roger A. Finzel,

Assistant Federal Public Defender

111 Lomas Blvd. NW, Suite 501

Albuquerque, NM 87102

(505) 346-2489

[email protected]

Submitted February 23, 2009

Case: 08-2190 Document: 01017629070 Date Filed: 02/23/2009 Page: 1

ii

TABLE OF CONTENTS

Table of Authorities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii

Argument . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

SECTION 922(g) OF TITLE 18 OF THE UNITED STATES

CODE, WHICH WAS ENACTED IN 1968, INFRINGES ON THE

RIGHT, RECOGNIZED IN 1868 BY A TREATY BETWEEN THE

UNITED STATES AND THE NAVAJO NATION, OF A NAVAJO

INDIAN TO HUNT ON RESERVATION LAND. ABSENT THE

CLEARLY EXPRESSED INTENT BY CONGRESS TO ABROGATE OR

MODIFY THIS TREATY RIGHT TO HUNT, 19 U.S.C. § 922(g)

CANNOT BE USED TO PROSECUTE NAVAJO INDIANS WHO

POSSESS FIREARMS SOLELY FOR THE PURPOSE OF HUNTING

ON RESERVATION LAND. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

A. An Indian is not subject to a generally applicable law

which infringes on a right recognized by Treaty

between the United States and the Indian Tribe. . . . . . . . . . . . . . 1

B. Both individual user rights and tribal rights recognized

by Indian treaty are accorded the same guarantee of

supremacy over subsequently enacted federal laws that

infringe the right, absent a clearly expressed intent by

Congress to abrogate that right. . . . . . . . . . . . . . . . . . . . . . . . . . . 13

C. Congress cannot take away a felon’s right to bear arms

without abrogating the individual right to bear arms

guaranteed by the Second Amendment. . . . . . . . . . . . . . . . . . . . . 21

Conclusion and Remedy Sought . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

Certificate of Compliance with Rule 32(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

Certificate of Privacy Redactions and Virus Scanning . . . . . . . . . . . . . . . . . . . 22

Certificate of Service . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23


iii

TABLE OF AUTHORITIES

Federal Cases

Menominee Tribe of Indians v. United States,

391 U.S. 404 (1968) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

Minnesota v. Mille Lacs Band of Chippewa Indians,

526 U.S. 172 (1999) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

United States v. Burns,

529 F.2d 114 (9 Cir. 1975) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .th 3, 9, 10, 11

United States v. Dion,

476 U.S. 734 (1986) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

United States v. Felter,

752 F.2d 1505 (10 Cir. 1985) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .th 18-20

United States v. Gallaher,

275 F.3d 784 (9 Cir. 2001) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .th 2-3, 8, 9

United States v. Sohappy,

770 F.2d 816 (9 Cir. 1985) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .th 3, 5, 6, 8, 10

United States v. Three Winchester 30-30 Caliber Lever Action Carbines,

504 F.2d 1288 (7 Cir. 1974) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .th 10, 11, 13-18

Whitefoot v. United States,

293 F.2d 658 (Ct. Cl. 1961) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

Other Authority

18 U.S.C. § 922(g) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1, 2,

18 U.S.C. § 1153 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

18 U.S.C. § 1202(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

1868 Native American Treaty Between the United States


iv

and the Navajo Tribe of Indians . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1,

Gun Control Act of 1968 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1, 9, 20

Lacey Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3-7

S. Rep. No. 123, 97 Cong., 1 Sess. 4 (1981) . . . . . . . . . . . . . . . . . . . . . . . . . . .th st 7

S. Rep. No. 123, 97 Cong., 1 Sess. 13 (1981) . . . . . . . . . . . . . . . . . . . . . . . . . .th st 7

H.R. Rep. No. 276, 97 Cong., 1 Sess. 13 (1981) . . . . . . . . . . . . . . . . . . . . . . . .th st 7


1

ARGUMENT

SECTION 922(g) OF TITLE 18 OF THE UNITED STATES CODE, WHICH

WAS ENACTED IN 1968, INFRINGES ON THE RIGHT, RECOGNIZED IN 1868 BY

A TREATY BETWEEN THE UNITED STATES AND THE NAVAJO NATION, OF

A NAVAJO INDIAN TO HUNT ON RESERVATION LAND. ABSENT THE

CLEARLY EXPRESSED INTENT BY CONGRESS TO ABROGATE OR MODIFY

THIS TREATY RIGHT TO HUNT, 18 U.S.C. § 922(g) CANNOT BE USED TO

PROSECUTE NAVAJO INDIANS WHO POSSESS FIREARMS SOLELY FOR THE

PURPOSE OF HUNTING ON RESERVATION LAND.

There are two focal points to the issue in this case: (1) whether a generally

applicable federal law applies, without exception, to Indians in Indian country

unless Indians are specifically exempted by treaty from that law; and (2) whether

the individual rights of use in hunting, fishing, and gathering on reservation land

guaranteed to members of Indian tribes recognized in the treaties between the

United States and Indian Tribes is given the same protection that is given the

tribal rights of hunting, fishing, and gathering.

A. An Indian is not subject to a generally applicable law which

infringes on a right recognized by Treaty between the United States

and the Indian Tribe.

Certain facts are not in dispute in this case: (1) the 1868 Native Amercian

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

(“Treaty of 1868”) recognizes the right of Navajo Indians to hunt on tribal land and

the land contiguous to tribal land (Answer Brief at 9-10); (2) 18 U.S.C. § 922(g) is

a part of the Gun Control Act which became effective in 1968, 100 years after the

1868 Treaty (Answer Brief at 10); (3) the Gun Control Act is silent as to its effect


2

on rights belonging to Indians that are affected by provisions of the Act, such as

the right to possess firearms for the purpose of hunting (Answer Brief at 10); (4)

18 U.S.C. § 922(g) is a crime of general applicability (Answer Brief at 10.)

The government disputes that (1) Indian Treaties are governed by unique

canons of construction that derive from the relationship between the Indian Tribes

and the United States; and (2) the individual right of use of Indian tribal members

is accorded the same deference as the Indian tribal right of use. The government

never addresses the body of law that establishes that treaties between the United

States and Indian Tribes are unique and are to be interpreted in favor of the

Indians. Instead, the government asserts: “A member of a tribe is not exempt from

generally applicable federal laws unless the treaty itself specifically exempts tribal

members.” (Appellee’s Answer Br. at 10.) This proposition contradicts the canons

governing the interpretation of treaties between the United States and Indian

Tribes. It also rests on cases that do not support such a proposition.

Mr. Fox’s Opening Brief discusses in some detail the unique standing of

treaties between the United States and Indian Tribes. (Appellants Opening Br. at

9-14.) The government does not address this unique relationship between the

United States and Indian Tribes which guides the interpretation of treaties

between them. Instead, the government cites United States v. Gallaher, 275 F.3d

784 (9 Cir. 2001), for the proposition that a subsequent enactment of a federal lawth


3

of general applicability that conflicts with a right recognized by the United States

in an Indian treaty abrogates that right, unless the treaty exempts Indians from

laws of general applicability. Gallaher does not support such a proposition,

however. In Gallaher, the Court of Appeals for the Ninth Circuit cited United

States v. Sohappy, 770 F.2d 816 (9 Cir. 1985), and United States v. Burns, 529 F.2dth

114 (9 Cir. 1975), for the following proposition: “In order to exempt tribalth

members from a federal law of otherwise general applicability, the treaty itself

must so provide.” Gallaher, 275 F.3d at 788. The court of appeals employed this

proposition in order to affirm the district court’s ruling that the treaty between the

United States and the Colville Confederated Tribes did not deprive the district

court of subject matter jurisdiction over the prosecution of and sentencing of Mr.

Gallaher for the charge of felon-in-possession.

Sohappy and Burns do not stand for the sweeping proposition that an Indian

treaty must include a provision that exempts Indians from a generally applicable

federal law in order to support a defendant’s claim that he or she is exempt from

such a law. In Sohappy, the defendants had been convicted of violating the Lacey

Act prohibitions, 18 U.S.C. § 3372(a)(1) and (2)(A), against transporting, selling,

or acquiring fish taken or possessed in violation of Indian tribal law or state law.

The defendants did not deny that they caught and sold the fish outside the seasons

prescribed by Indian tribal and state law and sold ceremonial fish in violation of


4

other tribal and state regulations. They argued that the Lacey Act prohibitions did

not apply to them as Indians because federal prosecution for violation of the Lacey

Act violated Indian sovereignty and the exclusive jurisdiction to regulate and

prosecute Indians for violations of Indian treaty reserved fishing rights; therefore,

reasoned the defendants, the Lacey Act prohibitions must apply only to non-

Indians.

The court of appeals framed this issue as whether the Lacey Act prohibitions

applied to Indians as well as non-Indians, and further refined that issue as two

questions: (1) whether the Indian tribes have a treaty reserved right to exclusive

jurisdiction over tribal law offenses committed by Indians; and (2) whether

Congress intended that all persons, including Indians, be subject to the Lacey Act

prohibitions. As is obvious from the issues framed by the court of appeals, the

determination of Congress’ intent in abrogating Indian treaty rights in enacting the

Lacey Act prohibitions was an integral part of resolving the question of the

application of the federal law to the Indians charged with a violation of it.

In addressing the first of these two questions, the court of appeals

considered the defendant’s argument that application of the Lacey Act to Indian

defendants who violate tribal law would amount to an abrogation of the treaty

reserved rights of the defendants’ tribe to control and regulate Indian fishing. The

court of appeals recognized that Congress can override existing treaty rights


5

through legislation and that the Lacey Act in fact incorporated language that

expressed Congress’ intent to avoid any interference with Indian treaty rights. The

court of appeals then reasoned: “The validity of the above argument rests on the

proposition that federal enforcement of the Lacey Act penalties against Indians

who violate tribal fishing law is a violation of the tribe’s treaty reserved right to

control Indian fishing. The crucial issue, therefore, is whether the treaties

reserved to the tribes exclusive jurisdiction over enforcement of tribal fishing law

against Indians.” Sohappy, 770 F.2d at 818 (emphasis in original). In finding that

the tribe did not retain exclusive jurisdiction over fishing matters involving

Indians, the court of appeals relied on the fact that the Lacey Act did not apply to

an offense committed by an Indian against another Indian, but rather to offenses

against tribal law and federal law, through the Lacey Act’s incorporation of tribal

law, designed to preserve fishing opportunities of Indians and non-Indians. Here

the court of appeals noted that Congress, in enacting the Lacey Act, “wished to

curb trafficking in illegally acquired wildlife in order to help support the web of

federal, state and Indian tribal law protecting wildlife.” Sohappy, 770 F.2d at 819.

The court of appeals further noted that the right to take fish at all “usual and

accustomed places” was not exclusive but was to be shared “in common with

citizens of the Territory.” The court reasoned that this language further supported

the view that fishing offenses were not purely intra-Indian matters but impacted


6

federal and state interests as well. The court also noted that far from disrupting

tribal authority by overturning tribal regulations, the Lacey Act actually supported

tribal laws by authorizing federal penalties for violations. Finally, and as a segue

into the second question which is perhaps more relevant to the instant appeal, the

court of appeals considered Congress’ intent in enacting the Lacey Act with respect

to abrogation of treaty rights, noting that Congress’ intent that there be federal

jurisdiction over the defendants’ activities and its simultaneous disclaimer of any

intent to abrogate treaty rights can only be reconciled if there is no treaty right to

exclusive jurisdiction. Sohappy, 770 F.3d at 820.

The court of appeals then addressed the second question: whether Congress

intended the Lacey Act prohibitions against trafficking in fish in violation of

Indian tribal law to apply to Indians. The court noted that the prohibitions

referred to “any person,” which normally would include Indians. However,

addressing the defendants’ arguments that the Act prohibited only non-Indians

from trafficking in fish as a federal offense, the court turned to Congressional

reports for an explanation for the incorporation of Indian tribal law within the

Lacey Act. The court noted the following report: “Because of the resource

management responsibilities of Indian tribes, the legislation proposes that . . . the

provisions of the Act apply to fish and wildlife taken in violation of Indian tribal

law or regulations. . . . Resource management responsibilities of Indian tribes on


7

Indian tribal lands indicate the need to expand the application of the current law

to fish and wildlife taken in violation of Indian tribal laws or regulations. Any

such changes would not constitute a broadening of their authority under the Act

but would merely allow support for the full range of laws that protect wildlife.”

Sohappy, 770 F.2d at 820 (quoting S. Rep. No. 123, 97 Cong., 1 Sess. 13 (1981),th st

H.R. Rep. No. 276, 97 Cong., 1 Sess. 13 (1981)). Noting that the Lacey Actth st

prohibitions extended beyond tribal law to incorporate federal and state

regulations as well, the court of appeals reasoned that the overall purpose in

creating stiffer penalties for trafficking in illegally obtained fish was “to allow the

federal government to provide more support for the full range of . . . laws that

protect wildlife.” Sohappy, 770 F.2d at 821 (quoting S. Rep. No. 123, 97 Cong.,th

1 Sess. 4 (1981), U.S. Code Cong. & Admin. News, 1981, p. 1751). The court thenst

concluded that Indians who traffic in illegal wildlife harm this goal of wildlife

preservation just as much as non-Indian traffickers and to exempt them would

impede the attainment of Congress’ goal.

Responding to the defendants’ arguments that the Lacey Act did not express

an intent that Indians be included within its proscriptions, the court of appeals

reasoned that the intent was expressed by the Act’s incorporation of tribal law that

prohibited the taking of certain fish, the stiffer penalties provided by the Act, and

the creation of the new offense of trafficking in the illegally obtained wildlife. The


8

Act thus strengthened the tribal regulations already in place, which recognized the

importance of preserving wildlife. The court of appeals also noted that Congress’

intent was further expressed by incorporating tribal law and federal and state

regulations “in the same breath,” while there was no need to do so if Congress

intended the Act to apply only to non-Indians who were already prohibited by

federal and state law from illegally obtaining and trafficking in wildlife. Sohappy,

770 F.2d at 821-22.

Sohappy is distinguishable both from Gallaher, which relies upon it for its

proposition that generally applicable criminal laws such as felon-in-possession

apply to Indians unless they are exempted from them by treaty, and thus from Mr.

Fox’s case as well. There are two significant points of distinction. First, the Lacey

Act did not abrogate the fishing rights of tribal members, as the defendants argued.

As the Court of Appeals for the Ninth Circuit painstakingly pointed out and relied

upon for its decision, The Lacey Act incorporated already existing tribal law that

prohibited its own tribal members from obtaining certain fish. In fact, the

defendants did not deny that they violated tribal law by obtaining prohibited fish.

Their argument concerned only the exclusivity of tribal law as the prosecuting

authority for their crime. In Gallaher and in Mr. Fox’s case, the federal offense of

felon-in-possession does not incorporate already existing tribal law. It is a purely

federal offense. This point is integral to the second point of distinction. In


9

Sohappy, the court of appeals carefully analyzed Congress’ intent regarding

application of the Lacey Act to Indians. Indeed the very fact that the Act

incorporated already existing tribal law was a significant reason, in the opinion of

the court of appeals, to presume that Congress intended the Act to apply to Indians

as well as non-Indians. And to further bolster the presumption, the court of

appeals noted that the incorporation was not randomly placed, but rather was

side-by-side “in the same breath” with the Act’s incorporation of already existing

federal and state law. There is no such incorporation of already existing tribal law

in the Gun Control Act. As Mr. Fox’s Opening Brief points out, and as the

government concedes, the Gun Control Act is entirely silent as to its effect on

Indian treaty rights. (Appellee’s Answer Br. at 10.) There is no reason upon

which to base even a presumption that Congress intended to abrogate Indian treaty

rights in enacting the Gun Control Act, which in its prohibition of firearm

possession, clearly impacts the right to hunt.

The other case upon which Gallaher relies for its sweeping proposition that

all generally applicable criminal laws apply to Indians unless the Indian treaty

exempts Indians from their application is United States v. Burns, 529 F.2d 114

(9 Cir. 1975), which provides no more support for such a proposition than doesth

Sohappy. Mr. Burns, an Indian employed by the Shoshone-Bannock Tribe of

Indians, Fort Hall Reservation, Idaho, as a temporary tribal game warden, appealed


10

his convictions of unlawful possession of a firearm by a felon, in violation of 18

U.S.C. § 1202(a), and assault with a dangerous and deadly weapon, in violation

of 18 U.S.C. § 1153 and Idaho 18-906. While stopping three vehicles that were

trespassing on Indian land, Mr. Burns and the occupants of one vehicle argued and

Mr. Burns pulled out a firearm. The matter was resolved peacefully and Mr. Burns

put away his firearm. On appeal, Mr. Burns contended that the trial court lacked

jurisdiction to try the offense of felon-in-possession because by treaty and tribal

law, the prevention of trespass by unauthorized persons upon the reservation was

in the hands of the tribal council and the tribal council could select whomever it

wished as game wardens to carry out the rules and regulations adopted on the

reservation. This is the same argument of exclusive jurisdiction that was

advanced in Sohappy. Mr. Burns argued that a general law of the United States

does not apply to any Indian committing an offense in Indian country, “where, by

treaty stipulation, the exclusive jurisdiction over such offenses is secured to the

Indian tribes.” Burns, 529 F.2d at 116-117. It is important to note here that

abrogation of the right to hunt, Mr. Fox’s issue on appeal, was not advanced as an

argument nor addressed by the Court of Appeals for the Ninth Circuit. And in

Burns, as in Gallaher, the court of appeals relied on United States v. Three

Winchester 30-30 Caliber Lever Action Carbines, 504 F.2d 1288 (7 Cir. 1974), forth

the proposition that federal criminal laws of general applicability apply in Indian


11

country, “unless there exists some treaty right which exempts the Indian from the

operation of the particular statutes in question.” Burns, 529 F.2d at 117. This is

a slightly different wording of the proposition upon which the government relies

in this case. The government argues; “A member of a tribe is not exempt from

generally applicable federal laws unless the treaty itself specifically exempts tribal

members.” (Appellee’s Answer Br. at 10.) In Burns, the court of appeals refers not

to language in the treaty specifically exempting Indians from laws of general

applicability or a particular law of general applicability, but rather to language that

describes a treaty right that acts to exempt Indians from such laws. Stated in this

way, the court of appeals is stating the principle that a federal law that abrogates

a treaty right cannot apply to Indians in Indian country without language in the

statute that expresses Congress’ intent to abrogate.

Mr. Fox’s Opening Brief discusses Three Winchester Carbines in some detail.

The case does not provide a rational basis for concluding that the burden is on an

Indian to show that an Indian treaty specifically exempts him or her from

prosecution for a federal offense which deprives him or her of a treaty right, nor

does it provide any legal precedent for such a conclusion. The law is well

established that there must be language in a law of general applicability or in the

legislative history leading up to the enactment of the law that expresses Congress’

intent to abrogate the treaty right.


12

Mr. Fox does not challenge Congress’ authority to abrogate rights recognized

in treaties between the United States and Indian Tribes. Congress may abrogate

those rights unilaterally. However, the body of law that has developed to aid in

interpreting these treaties provides the Indian Tribes with the protection of an

intended abrogation. Congress cannot dissolve the right to hunt or fish or gather

by enacting a law that interferes with these treaty-recognized rights without

incorporating language that expresses its awareness that the law has such an effect

and its intent to abrogate the right.

All parties agree that the felon-in-possession statute impacts and effectively

prohibits Mr. Fox’s right to hunt on his Tribe’s land. All parties agree that the Gun

Control Act and its legislative history is silent as to the question of whether

Congress considered its impact in Indian country and intended to abrogate an

Indian’s right to hunt when it enacted the felon-in-possession statute. If Congress

intends to apply this statute to Indians on Indian land, knowing that it would

abrogate their right to hunt by prohibiting Indians who are felons from possessing

a firearm for the purpose of hunting, then Congress must express that intent. Until

it does so, Indians who possess a right to hunt that is recognized by Indian treaty

cannot be charged with the offense of felon-in-possession if found to be in

possession of a firearm for the sole purpose of hunting.


13

B. Both individual user rights and tribal rights recognized by Indian

treaty are accorded the same guarantee of supremacy over

subsequently enacted federal laws that infringe the right, absent a

clearly expressed intent by Congress to abrogate that right.

The government’s second argument contradicts its first argument that

generally applicable federal laws apply to Indians in Indian country unless the

Indian treaty exempts Indians from their application. In its second argument, the

government takes the position that while abrogation of a tribal treaty right requires

the expressed intention of Congress, the individual right of use, in contrast, can

be abrogated by Congress without any expressed intent to do so. The government

thus acknowledges that generally applicable federal laws that abrogate an Indian

tribal treaty right do not apply to Indians in Indian country unless Congress

expresses an intent to abrogate, contradicting its first argument. The government

now shifts its argument from the applicability to Indians of generally applicable

federal laws to an attempt to distinguish Indian tribal rights and the individual

right of user in those rights. The government argues that an Indian treaty only

recognizes tribal rights and that Congress can abrogate at any time without any

consideration of or expressed intent to do so individual rights recognized by Indian

treaty. The government cites no support for this proposition. Indeed no support

exists for the argument that Congress may abrogate, without expressed intent, an

Indian’s individual right of user in his or her tribe’s rights. The only legal support

cited by the government is Three Winchester Carbines. But, as discussed in Mr.


14

Fox’s Opening Brief, Three Winchester Carbines does not support this proposition.

(Appellant’s Opening Br. at 15-18.) Rather the case tacitly acknowledges that the

felon-in-possession statute does abrogate the individual right to hunt and overtly

acknowledges that the felon-in-possession statute and its legislative history is

silent as to Congress’ intent to abrogate that right. Three Winchester Carbines, with

the government following suit, simply notes that the two rights should be

distinguished. Without any discussion of what that distinction might be, the court

of appeals concludes that a different set of interpretive principles applies to the

individual right of use recognized by Indian treaties.

The government’s argument that the individual right of use recognized by

treaty between the United States and Indian Tribes is not entitled to the same

consideration accorded the rights belonging to the entire tribe, when Congress

contemplates the enactment of a law that will infringe those rights, rests entirely

on Three Winchester Carbines, which seized upon the distinction between these

rights as a means of avoiding the obvious and undeniable impact of the felon-in-

possession statute on the right of Indians to use firearms solely for the purpose of

hunting on tribal land. But it is a position that rests on faulty premises and is

therefore untenable.

The government’s argument, and that of the court in Three Winchester

Carbines, rests first on the premise that laws of general applicability trump the


15

rights recognized in Indian treaties. This premise posits that the Indians who

agreed to cede land to the United States and live in a specifically bounded area in

return for recognition of their right to hunt, fish, and gather on that land must

have demanded exemption from “laws of general applicability” that had not yet

been enacted. As already discussed, Subsection A supra, this premise violates

established law that guides the interpretation of treaties between the United States

and Indian Tribes.

The second premise is the notion that an individual right of use is inferior

to and not accorded the same protection as the tribal right of use. Mr. Fox’s

Opening Brief notes the absence in Three Winchester Carbines of any meaningful

analysis of the abrogation of the defendant’s right to hunt. As a Menominee

Indian, the defendant in Three Winchester Carbines had asserted a position similar

to that of Mr. Fox – that his status as an Indian with the retained right to hunt and

fish upon land ceded by the 1854 Treaty of Wolf River exempted him from

criminal liability under the federal felon in possession statute. The court of

appeals set forth its understanding of the law governing the question before it in

a footnote:

There is considerable authority for the propoisition that a federal statute

enacted subsequent to a treaty supercedes any provisions of the treaty that

are inconsistent. (Citation omitted.) There is, however, authority on the

other side holding that an intention to abrogate or modify a treaty is not to

be lightly imputed to the [sic]. (Citations omitted.) Neither plaintiff nor

defendant have referred us to any legislative history of either 18 U.S.C. App.


16

§ 1202(a)(1) or 18 U.S.C. § 924(d) which indicates that Congress gave any

special consideration to the status of Indian treaties when it passed either

of these statutes (both of which passed subsequently to the Treaty of 1854

with the Menominee Indians). This being so we do not rely on either

presumption in reaching our decision. Instead, we consider whether in fact

any treaty right has been abrogated, the extent of any such abrogation, and

finally the purpose to be served by the challenged congressional acts.

Three Winchester Carbines, 504 F.2d at 1291-92 n. 8. The court of appeals thus

acknowledged the absence of any expressed congressional intent to abrogate an

Indian treaty right to hunt in enacting the felon in possession offense, if indeed

there was an abrogation. That was the question the court first addressed,

recognizing that should it find an abrogation, it would have to look to legislative

history and other sources to determine “the purpose to be served by the challenged

congressional acts.” This is not a correct statement of the law governing treaties

between the United States and Indian Tribes, however. The court of appeals final

step of determining “the purpose to be served by the challenged congressional

acts” is not a legally adequate substitute for the analysis set forth by the United

States Supreme Court. The Supreme Court has mandated a far more demanding

standard: a determination of whether there exists “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.” Minnesota v. Mille Lacs Band of Chippewa Indians, 526 U.S. 172, 202-

03 (1999) (quoting United States v. Dion, 476 U.S. 734, 740 (1986)).


17

But the court of appeals in Three Winchester Carbines did not follow its own

stated step-by-step analysis of whether or not the defendant’s right to hunt was

abrogated by the federal felon-in-possession statute. As Mr. Fox’s Opening Brief

points out, the court of appeals first distinguished between restrictive regulations

imposed by the State of Wisconsin on the Menominee Indians’ hunting and fishing

rights, limited by the Supreme Court in Menominee Tribe of Indians v. United

States, 391 U.S. 404 (1968), and the federal criminal offense of felon in possession

of a firearm, which the court of appeals labeled one of “ the federal laws of general

applicability which have nothing to do with the regulation of any Menominee

Indian treaty right.” Three Winchester Carbines, 504 F.2d at 1292. The court of

appeals here substitutes “regulation” for “abrogation.” The question is not whether

a law interferes with an Indian tribe’s right to regulate hunting and fishing on

Indian land. The question is whether a law abrogates an Indian treaty right to

hunt and fish on Indian land. While restrictive regulation might effectively

abrogate a tribe’s right to hunt or fish, other legislation can also abrogate such

rights.

It is this substitution of “regulation” for “abrogation,” however, that allows

the court of appeals to proceed to the next step in its analysis. By focusing on

“regulation,” the court of appeals can opine, “Any effect on the defendant’s right

to hunt is merely incidental, and applicable only to him. The treaty rights


18

allegedly abridged belong to the tribe as a whole and not to any one individual.”

Three Winchester Carbines, 504 F.2d at 1292. This is the genesis of the proposition

that the analysis of a federal law’s abrogation of an Indian treaty right is an

analysis of whether the federal law interferes with a tribe’s right to regulate

hunting and fishing on tribal land. The court of appeals cited Whitefoot v. United

States, 293 F.2d 658, 663 (Ct. Cl. 1961), as support for its proposition. As Mr.

Fox’s Opening Brief discusses, Whitefoot does not support such a proposition.

(Appellant’s Opening Br. at 18.) Whitefoot concerned property rights asserted by

individual Indians in a particular fishing area that was affected by construction of

a federal dam, not the right of an Indian to hunt.

Courts have recognized that an individual Indian has standing to assert his

or her individual treaty user right in defense of a criminal charge. (Appellant’s

Opening Br. at 19-26.) In particular, this court’s decision in United States v. Felter,

752 F.2d 1505 (10 Cir. 1985), is insightful. In Felter, the defendant, a mixed-th

blood Ute Indian, was charged the unlawful fishing on full-blood Ute Indian land,

in violation of 18 U.S.C. § 1165. The defendant asserted as a defense her

individual treaty right of use in the land in question, which, the defendant argued,

was not abrogated by a subsequent treaty that divided the original Ute Indian land

into land belonging to mixed-blood Ute Indians and full-blood Ute Indians.

Legislation enacted in 1954 terminated the federal mixed-blood Ute Indians of the


19

Uintah and Ouray Reservation in Utah. The government argued that this 1954 Act

abrogated the right of mixed-blood Ute Indians to hunt and fish on the reservation.

In analyzing the issue, this court distinguished between the long-established tribal

right to hunt and fish on the reservation and right of user in the tribe’s hunting

and fishing rights enjoyed by individual Indians. Noting that the parties did not

dispute that the defendant, when she was a member of the Ute Indian Tribe,

possessed the right to hunt and fish on the reservation before passage of the 1954

Act, this court reasoned: “The Government’s attempt to treat mixed-blood Ute

Indians as ‘ordinary American citizens’ therefore fails because, at least before

1954, these mixed-blood Ute Indians enjoyed the right to hunt and fish on the

reservation, unlike ‘ordinary American citizens.’” Felter, 752 F.2d at 1509. This

court in Felter concluded that Congress must express an intent to abrogate the

individual right of user in the tribe’s treaty right to hunt and fish before a law that

has such an effect can be applied to Indians.

As in Felter, Mr. Fox is a member of an Indian Tribe – the Navajo Indian

Tribe – who, as an individual Indian, enjoys a right of user in the tribe’s hunting

and fishing rights. In Felter, the defendant lost her membership in the Ute Indian

Tribe. She retained her individual right of use in the Tribe’s hunting and fishing

rights, however, and could not be prosecuted by the federal government for

unlawful fishing on reservation land, even though she no longer belonged to the


20

Tribe who owned the land. Mr. Fox has not lost his membership in his Tribe, nor

has he lost his right of user in his Tribe’s hunting and fishing rights. The

government argues that Mr. Fox “lost his right as a Navajo Indian to hunt by

committing several felony crimes.” (Appellee’s Answer Br. at 11.) As this court

found in Felter, the government is attempting to treat Mr. Fox as an “ordinary

American citizen,” to whom the felon in possession statute applies. But this

attempt must fail for the same reason it failed in Felter: Mr. Fox enjoyed the right

to hunt and fish on the reservation, unlike “ordinary American citizens,” long

before Congress enacted the Gun Control Act. The Gun Control Act cannot be

found to abrogate this right, any more than the 1954 Act abrogated Ms. Felter’s

right. Ms. Felter was declared by Congress to be no longer a member of the Ute

Indian Tribe. This court found that she retained her right of user in her former

tribe’s hunting and fishing rights, because the 1954 Act is silent as to any intent

to abrogate those rights. Mr. Fox has been declared by Congress to be a felon.

This Court should find that he retains his right of user in the tribe’s hunting and

fishing rights, because the Gun Control Act is silent as to any intent to abrogate

those rights.


21

C. Congress cannot take away a felon’s right to bear arms without

abrogating the individual right to bear arms guaranteed by the

Second Amendment.

The government states that Mr. Fox did not argue in the district court that

the felon in possession statute may be subject to Second Amendment challenges

after the Supreme Court’s decision in District of Columbia v. Heller, 128 S. Ct. 2783

(2008). (Appellee’s Answer Br. at 17.) In fact, Mr. Fox did raise the issue in his

Motion to Dismiss. (Doc. 78 at 6 n. 2.) Heller was not decided until after briefing

was completed on Mr. Fox’s Motion to Dismiss.

Mr. Fox did not and does not argue that Heller allows felons, in general, to

possess firearms. Rather, Mr. Fox cites Heller for the rule of law that when a

person has a right to hunt, he or she may hunt with the most modern firearms

available today. The government does not dispute this holding in Heller. Heller,

128 S. Ct. at 2792.

CONCLUSION AND REMEDY SOUGHT

In enacting the Gun Control Act of 1968, Congress did not consider the

effect of the law on the traditional way of life of American Indian citizens

recognized by treaty between the United States and Indian Tribes in the form of

rights, both tribal and individual use, to hunt, fish, and gather. Mr. Fox’s right to

hunt survives that Act and exempts him from a penal statute that criminalizes his

possession of a firearm in order to exercise his right to hunt. This court should


22

reverse his conviction and order that the charge of felon in possession of a firearm,

in violation of 18 U.S.C. § 922(g), be dismissed.

CERTIFICATE OF COMPLIANCE WITH RULE 32(a)

This brief complies with the type-volume limitation of Fed. R. App. P.

32(a)(7)(B) because this brief contains 5,435 words, excluding the parts of the brief

exempted by Fed. R. App. P. 32(a)(7)(B)(iii).

__/s______________________________

Roger A. Finzel

Attorney for Dionysius Fox

CERTIFICATE OF PRIVACY REDACTIONS

AND VIRUS SCANNING

I, Roger A. Finzel, certify that all required privacy redactions have been

made, and that, with the exception of these redactions, every document submitted

in digital form or scanned PDF format is an exact copy of the written document

filed with the Clerk, and that the digital submissions have been scanned for

viruses with the most recent version of a commercial scanning program, i.e.,

Norton AntiVirus Corporate Edition, Version 8.0, updated February 23, 2009, and

according to the program, are free of viruses.

__/s______________________________

Roger A. Finzel



23

Respectfully submitted,

FEDERAL PUBLIC DEFENDER

111 Lomas Blvd. N.W., Suite 501

Albuquerque, NM 87102

(505) 346-2489

__/s______________________________

Roger A. Finzel


CERTIFICATE OF SERVICE

I hereby verify that a true copy of the foregoing pleading was Federal

Expressed and submitted digitally via e-mail to the Clerk of the United States

Court of Appeals for the Tenth Circuit, Byron White United States Courthouse,

1823 Stout Street, Denver, CO 80257, and submitted digitally via e-mail to

Assistant United States Attorney Laura Fashing, P.O. Box 607, Albuquerque, New

Mexico 87103, this 23rd day of February, 2009.

__/s____________________________

Roger A. Finzel



Documents

IN THE U NI TE D S TAT ES C OURT OF APPEALS FOR THE · PDF file23.02.2009 · IN THE U NI TE D S TAT ES C OURT OF APPEALS ... 2009 Case: 08-2190 ... sup rem acy over su bseq ue ntl