Federal Court Subpoenas & Sovereign Immunity
In United States v. Juvenile Male 1, the federal district court in Arizona (PHX) delivered an incendiary response to arguments by Navajo Nation tribal attorneys that a federal court subpoena was "extra-territorial" and thus required domestication in Navajo tribal courts.
We first dispatch political rhetoric and then get to the heart of the matter. The United States of America is a country. Its sovereignty extends to its full geographical limits. And, under Article VI of the United States Constitution, its Constitution and laws "shall be the supreme Law of the Land." An Indian tribe is not a legal unit of international law. Cayuga Indian Claims (Great Britain v. United States), 20 Am. J. Int'l. L. 574 (1926). An Indian tribe is not a foreign state under the Constitution. Cherokee Nation v. Georgia, 30 U.S. (5 Pet.) 1, 20, 8 L.Ed. 25 (1831). And, 25 U.S.C. § 71 (originally enacted as Act of March 3, 1871, ch. 120, 16 Stat. 544, 566), provides that "[n]o Indian nation or tribe within the territory of the United States shall be acknowledged or recognized as an independent nation, tribe, or power."
It was thus frivolous for the lawyers representing the Tribe to refer to a federal subpoena as "extra-territorial," to describe the Tribe as a "separate sovereign nation," to refer to this court's processes as "foreign subpoenas issued from neighboring sovereigns," and to refer to this court as "foreign." If this rhetoric had come from non-lawyers, one could just dismiss it as hyperbole. But lawyers have an obligation to refrain from making frivolous contentions. See, e.g., E.R. 3.1, Arizona Rules of Professional Conduct, which applies to lawyers authorized to practice before the United States District Court for the District of Arizona. LRCiv 83.2(d). This includes tribal lawyers. LRCiv 83.1(b)(2).
But the case is more than a question of territoriality. In United States v. James, 980 F.2d 1314 (9th Cir. 1992), the 9th Circuit quashed a federal court subpoena on tribal records in a criminal case because Congress didn't explicitly waive tribal immunity in the Major Crimes Act (in essence). The Juvenile Male 1 court distinguished James because the defendant in Juvenile Male 1 argued that the tribe's failure to deliver the documents amounted to a violation of the Sixth Amendment -- no such constitutional claim was present in James. The district court also harshly criticized the reasoning of the James opinion. Importantly , the district court suggested that the constitutional question "outweighed" tribal sovereign immunity, further suggesting that the case was "certworthy." Keep an eye out for this one.
The court concluded:
Were we free to do so, we too would reject James. But we are not. Nevertheless, we agree with the juvenile here, and the court in Snowden, that James does not control because the defendant there did not raise constitutional challenges to the claim of immunity. The mischief caused by an extension of immunity beyond its purpose was neither presented to nor considered by the court in James. Indeed, we believe that if given an opportunity there is every likelihood that the United States Court of Appeals for the Ninth Circuit would revisit the issue. If not, a very plain circuit split would exist. And this would be no ordinary circuit split. Indians prosecuted for federal offenses on that part of the Navajo reservation in the District of New Mexico (and very likely the District of Utah), would have the right to compulsory process under the Constitution, and those Indians prosecuted for federal offenses on that part of the Navajo reservation in the District of Arizona would not. This would very likely raise a certworthy issue.