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
Submitted February 23, 2009
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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.
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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.
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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.
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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
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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.
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§ 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)).
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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
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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
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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
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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.
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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
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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
Attorney for Dionysius Fox
Case: 08-2190 Document: 01017629070 Date Filed: 02/23/2009 Page: 26
23
Respectfully submitted,
FEDERAL PUBLIC DEFENDER
111 Lomas Blvd. N.W., Suite 501
Albuquerque, NM 87102
(505) 346-2489
__/s______________________________
Roger A. Finzel
Attorney for Dionysius Fox
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
Attorney for Dionysius Fox
Case: 08-2190 Document: 01017629070 Date Filed: 02/23/2009 Page: 27