Cert Opposition in MacArthur v. San Juan County

aunt susan February 27, 2008 / 8:42 pm

This topic is very interesting. Confessedly, I am not looking at the situation from a political perspective. I just look at the law. Just the facts and law. I do not try to understand motivations as to why or why not the U.S. supreme court did not take this petition.

By refusing our petition, the Navajo Court plaintiffs have exhausted all federal avenues to enforce Navajo orders, decrees, and judgments.

By refusing the petition, the U.S. Supreme court has refused to examine its own lack of authority to review Tribal Court actions. The rule of a Court having to examine its own jurisdiction, even for the first time on appeal, does not apply for Indians, presumably.

Santa Clara Pueblo v. Martinez shows that intentionally, and clearly, Congress absolutely refused to give federal courts authority to review Tribal Court actions, and barred state authority under 25 U.S.C. 1321-1326. See McClanahan v. Arizona.

In Superon Energy, out of the Tenth Circuit, Judge Seymour found the Montana case to be narrow and fact bound.

In the MacArthur case, for the first time in Indian law that we can find, successful plaintiffs sought relief in federal court to enforce a Tribal court injunction? Why was an injunction issued? Because, primarily non Indians, knowing their actions were driving clinically dependent people from health care, kept doing those actions. A greater evidence of intent to harm a vulnerable group of people by a government is hard to find. The Plaintiffs suffered serious tort and employment damages and, something no federal court addresses, the defendants voluntarily filed false counterclaims actively seeking Navajo relief. Also, the Navajo Court found the defendants misused the Navajo Court processes to the Plaintiffs and People and Court’s detriment. This case was not merely an employment action. It placed the question squarely before the federal courts… what authority is there to review or diminish tribal court equal application of its laws over all persons.

The political subdivisions involved were not arms of the state, the state was not a party, state fisc was not at risk, and for the first time, in U.S. history, ever, a political subdivision, not an arm of the state, has been cloaked with state sovereignty, but only for Indian purposes. Cook County v. U.S. ex rel Chandler .

The federal courts displaced the Navajo Court fact finders and law givers with their own facts, omitting facts, and federal law, and even doctrines violating federal law doctrines. Congress gives no such authority to do so. Santa Clara says so.

Further, the Tenth Circuit in MacArthur subjugates all other branches of law and all prior case precedents to the contrary, to Montana and its progeny. Within about 60 days thereafter, another panel in Miner Electric v. Muskogee (Creek) Nation, issued a decision not even mentioning Montana, observing the lack of federal court authority over the Muskogee Nation’s courts that is consistent with Santa Clara Pueblo.

The U.S. Constitution says Treaties are the Supreme Law of the land. Navajo Treaties have no provisions limiting its Courts authority over non Indians. Congress has not limited it. The Executive has not limited it. And, Congress and the Executive, have not countanced, authorized, or provided for the Article III branch to limit it.

Under the Indian Self Determination act, the Executive enters into an ‘Executive Agreement’ , tantamount in force to a treaty, with the Navajo Nation to apply its laws within the Navajo Nation. The Navajo Nation has no law limiting its authority over non Indians. It likewise has no provisions for state or federal law to displace Navajo law. This agreement mandates equal application of the Navajo law. Navajo Nation Bill of Rights demands equal application of the law. The contract demands Navajo Bill of Rights provisions apply. The Treaty of Guadalupe Hildago provides only the UNITED States will have authority over the Indian Nations that were within Mexico at the time. Such is in keeping with the U.N. Covenant on Civil and Political rights and self determination provisions therein. … also the supreme law of the land.

Navajo law, pursuant to Treaties, pursuant to statutes supporting the Treaties, pursuant to Executive Agreements based on the Treaties, without limits on non Indians, under U.S. Constitution’s Article VI is thus, the supreme law of the land, binding upon all Courts and States and Judges, no other Constitutional provision to the contrary.

Notably, a Russian judgment pursuant to an executive agreement is given ‘full force and effect’ in U.S. v. Belmont, U.S. v. Pink. To give anything less than ‘full force and effect’ undermines the Russians, but also Executive and Congressional powers and Treaties according to that Supreme Court.

To bring peace to this issue, the Navajo Nation Supreme Court is entertaining briefs from interested groups such as NARF and NCAI on this subject of Navajo jurisdiction over non Indians, in the Ford Motor Co. v. Kayenta District Court case. One must wonder what other Nation supreme courts might add.

Without state law, without federal law, applying within the Navajo Nation, (McClanahan, Warren, Williams), if Montana applies, where do those injured under Navajo law go for redress with the defendant is a non Indian? no where. And the Navajo Nation is denied by the Article III court of its ability to carry out the mandates of Article I congress and Article II executive, and its Navajo law predating ICRA, to apply its laws equally to all ‘persons’. Dodge v. Nakai is also excellent for explaining ICRA’s history. These Navajo plaintiffs are the only U.S. citizens being deprived of all redress anywhere because the person injuring them is non Indian. Justice Robert Yazzie, prior chief justice of the Navajo Supreme Court addressed this issue before the Senate Committee. Congress has avoided ‘delegating’ authority to Indian Nation Courts, so as to avoid federal review of them.

This issue is the most vital issue facing the Indian Nations. One wonders if Treaty protections of the safety, happiness, and prospertity, as Congress defines it in 25 U.S.C. 450, is not being violated? Congress provides the only Court to hear Treaty and Contract violations is the Court of Federal Claims. It recently upheld the Navajo Treaties of 1849 and 1868.

The arguments we raised in our petition were new or had not been raised in 30 years or more. Defendants did not have a response to those arguments with legal citations or the like.

It is hoped that a thorough discussion and analysis of the law, the roots of authority for federal courts and tribal courts, will lead to peace and equality of all citizens involved. As long as Native Americans fight in U.S. wars, and pay taxes, it is this counsel’s opinion that they deserve to have equality before their own courts, whether a civil defendant is Indian or non Indian. It is unconscienable that Indians with a non Indian defendant have no courts into which they can seek redress.

The only Courts governing 638 treaty nations are the tribal courts, consistent with Congressional design. Equality is paramount, for without it, there is also no due process, and Navajo concepts of restorative justice are denied to all its people. As in the MacArthur situation, the area is a haven for lawlessness. Equal protection is essential for the protection of human life in these areas, as found in the Todacheene case out of the Ninth Circuit.

Also, as it stands, a non Indian insurer, insuring non Indians, does not have to pay for the non Indian business’ damages, because the insurance contract is not with an Indian.

It is most unfortunate that the U.S. supreme court did not have time to hear this matter its U.S. citizens, too long considered a ‘foreign’ country. One wonders if the men and women in Iraq feel as though they are foreigners.

Without equality, there can be no justice. Without justice, there can be no peace. Without peace, there can be no brotherhood. If we are one nation, then it is unfortunate, the Courts are so unwilling to enforce Congress’ and the Executive’s, the people’s will in this Article VI Treaty matter.

Cutting remarks, condescention, speaking disrespectfully, accomplishes little. Not only is there conflict between the Article III federal courts and Tribal Courts. It is a conflict between the branches. One, at least this individual believed, could be resolved by the Supreme Court, particularly in light of the post ICRA statutes supporting equal tribal court authority.

Sincerely,

Susan Rose

aunt susan February 27, 2008 / 8:42 pm

This topic is very interesting. Confessedly, I am not looking at the situation from a political perspective. I just look at the law. Just the facts and law. I do not try to understand motivations as to why or why not the U.S. supreme court did not take this petition.

By refusing our petition, the Navajo Court plaintiffs have exhausted all federal avenues to enforce Navajo orders, decrees, and judgments.

By refusing the petition, the U.S. Supreme court has refused to examine its own lack of authority to review Tribal Court actions. The rule of a Court having to examine its own jurisdiction, even for the first time on appeal, does not apply for Indians, presumably.

Santa Clara Pueblo v. Martinez shows that intentionally, and clearly, Congress absolutely refused to give federal courts authority to review Tribal Court actions, and barred state authority under 25 U.S.C. 1321-1326. See McClanahan v. Arizona.

In Superon Energy, out of the Tenth Circuit, Judge Seymour found the Montana case to be narrow and fact bound.

In the MacArthur case, for the first time in Indian law that we can find, successful plaintiffs sought relief in federal court to enforce a Tribal court injunction? Why was an injunction issued? Because, primarily non Indians, knowing their actions were driving clinically dependent people from health care, kept doing those actions. A greater evidence of intent to harm a vulnerable group of people by a government is hard to find. The Plaintiffs suffered serious tort and employment damages and, something no federal court addresses, the defendants voluntarily filed false counterclaims actively seeking Navajo relief. Also, the Navajo Court found the defendants misused the Navajo Court processes to the Plaintiffs and People and Court’s detriment. This case was not merely an employment action. It placed the question squarely before the federal courts… what authority is there to review or diminish tribal court equal application of its laws over all persons.

The political subdivisions involved were not arms of the state, the state was not a party, state fisc was not at risk, and for the first time, in U.S. history, ever, a political subdivision, not an arm of the state, has been cloaked with state sovereignty, but only for Indian purposes. Cook County v. U.S. ex rel Chandler .

The federal courts displaced the Navajo Court fact finders and law givers with their own facts, omitting facts, and federal law, and even doctrines violating federal law doctrines. Congress gives no such authority to do so. Santa Clara says so.

Further, the Tenth Circuit in MacArthur subjugates all other branches of law and all prior case precedents to the contrary, to Montana and its progeny. Within about 60 days thereafter, another panel in Miner Electric v. Muskogee (Creek) Nation, issued a decision not even mentioning Montana, observing the lack of federal court authority over the Muskogee Nation’s courts that is consistent with Santa Clara Pueblo.

The U.S. Constitution says Treaties are the Supreme Law of the land. Navajo Treaties have no provisions limiting its Courts authority over non Indians. Congress has not limited it. The Executive has not limited it. And, Congress and the Executive, have not countanced, authorized, or provided for the Article III branch to limit it.

Under the Indian Self Determination act, the Executive enters into an ‘Executive Agreement’ , tantamount in force to a treaty, with the Navajo Nation to apply its laws within the Navajo Nation. The Navajo Nation has no law limiting its authority over non Indians. It likewise has no provisions for state or federal law to displace Navajo law. This agreement mandates equal application of the Navajo law. Navajo Nation Bill of Rights demands equal application of the law. The contract demands Navajo Bill of Rights provisions apply. The Treaty of Guadalupe Hildago provides only the UNITED States will have authority over the Indian Nations that were within Mexico at the time. Such is in keeping with the U.N. Covenant on Civil and Political rights and self determination provisions therein. … also the supreme law of the land.

Navajo law, pursuant to Treaties, pursuant to statutes supporting the Treaties, pursuant to Executive Agreements based on the Treaties, without limits on non Indians, under U.S. Constitution’s Article VI is thus, the supreme law of the land, binding upon all Courts and States and Judges, no other Constitutional provision to the contrary.

Notably, a Russian judgment pursuant to an executive agreement is given ‘full force and effect’ in U.S. v. Belmont, U.S. v. Pink. To give anything less than ‘full force and effect’ undermines the Russians, but also Executive and Congressional powers and Treaties according to that Supreme Court.

To bring peace to this issue, the Navajo Nation Supreme Court is entertaining briefs from interested groups such as NARF and NCAI on this subject of Navajo jurisdiction over non Indians, in the Ford Motor Co. v. Kayenta District Court case. One must wonder what other Nation supreme courts might add.

Without state law, without federal law, applying within the Navajo Nation, (McClanahan, Warren, Williams), if Montana applies, where do those injured under Navajo law go for redress with the defendant is a non Indian? no where. And the Navajo Nation is denied by the Article III court of its ability to carry out the mandates of Article I congress and Article II executive, and its Navajo law predating ICRA, to apply its laws equally to all ‘persons’. Dodge v. Nakai is also excellent for explaining ICRA’s history. These Navajo plaintiffs are the only U.S. citizens being deprived of all redress anywhere because the person injuring them is non Indian. Justice Robert Yazzie, prior chief justice of the Navajo Supreme Court addressed this issue before the Senate Committee. Congress has avoided ‘delegating’ authority to Indian Nation Courts, so as to avoid federal review of them.

This issue is the most vital issue facing the Indian Nations. One wonders if Treaty protections of the safety, happiness, and prospertity, as Congress defines it in 25 U.S.C. 450, is not being violated? Congress provides the only Court to hear Treaty and Contract violations is the Court of Federal Claims. It recently upheld the Navajo Treaties of 1849 and 1868.

The arguments we raised in our petition were new or had not been raised in 30 years or more. Defendants did not have a response to those arguments with legal citations or the like.

It is hoped that a thorough discussion and analysis of the law, the roots of authority for federal courts and tribal courts, will lead to peace and equality of all citizens involved. As long as Native Americans fight in U.S. wars, and pay taxes, it is this counsel’s opinion that they deserve to have equality before their own courts, whether a civil defendant is Indian or non Indian. It is unconscienable that Indians with a non Indian defendant have no courts into which they can seek redress.

The only Courts governing 638 treaty nations are the tribal courts, consistent with Congressional design. Equality is paramount, for without it, there is also no due process, and Navajo concepts of restorative justice are denied to all its people. As in the MacArthur situation, the area is a haven for lawlessness. Equal protection is essential for the protection of human life in these areas, as found in the Todacheene case out of the Ninth Circuit.

Also, as it stands, a non Indian insurer, insuring non Indians, does not have to pay for the non Indian business’ damages, because the insurance contract is not with an Indian.

It is most unfortunate that the U.S. supreme court did not have time to hear this matter its U.S. citizens, too long considered a ‘foreign’ country. One wonders if the men and women in Iraq feel as though they are foreigners.

Without equality, there can be no justice. Without justice, there can be no peace. Without peace, there can be no brotherhood. If we are one nation, then it is unfortunate, the Courts are so unwilling to enforce Congress’ and the Executive’s, the people’s will in this Article VI Treaty matter.

Cutting remarks, condescention, speaking disrespectfully, accomplishes little. Not only is there conflict between the Article III federal courts and Tribal Courts. It is a conflict between the branches. One, at least this individual believed, could be resolved by the Supreme Court, particularly in light of the post ICRA statutes supporting equal tribal court authority.

Sincerely,

Susan Rose

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Cert Opposition in MacArthur v. San Juan County

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