Annotations on the 1868 Treaty
The below are annotations from the Appendices of the Navajo Nation Code, last revised in 2010.
Historical
“On June 1, 1868, a treaty was signed between General William T. Sherman, for the United States, and numerous chiefs and headmen of the ‘Navajo nation or tribe of Indians.’ At the time this document was signed the Navajos were an exiled people, forced by the United States to live crowded together on a small piece of land on the Pecos River in eastern New Mexico, some 300 miles east of the area they had occupied before the coming of the white man. In return for their promises to keep peace, this treaty ‘set apart’ for ‘their permanent home’ a portion of what had been their native country, and provided that no one, except United States Government personnel, was to enter the reserved area. Implicit in these treaty terms, as it was in the treaties with the Cherokees involved in Worcester v. State of Georgia, was the understanding that the internal affairs of the Indians remained exclusively within the jurisdiction of whatever tribal government existed. Since then, Congress and the Bureau of Indian Affairs have assisted in strengthening the Navajo tribal government and its courts.” See the Navajo–Hopi Rehabilitation Act of 1950, § 6, 64 Stat. 46. 25 U.S.C. § 636, 25 U.S.C.A. § 636; 25 CFR § 11.1 through 11.87NH. Williams v. Lee (S.Ct. of U.S. 1959) 358 U.S. 2—17, 79 S.Ct. 269, 3 L.Ed.2d 261. See Oliver v. Udall (C.A.D.C. 1962) 306 F.2d 819, and In re Lynch’s Estate (1962) 92 Ariz. 354, 377 P.2d 199, quoting from Williams v. Lee.
One of the last treaties with Indians was entered into with the Navajo Indians in 1868. Warren Trading Post Co. v. Moore (1963) 95 Ariz. 110, 387 P.2d 809, reversed on other grounds. Warren Trading Post Co. v. Arizona State Tax Commission (S.Ct. of U.S. 1965) 380 U.S. 685, 86 S.Ct. 1242.
The Navajo Reservation was set apart as a “permanent home for the Navajos” in a treaty made with the “Navajo nation or tribe of Indians” on June 1, 1868. Warren Trading Post Co. v. Arizona State Tax Commission (S.Ct. of U.S. 1965) 380 U.S. 685, 85 S.Ct. 1242.
Long before the Treaty of 1868, in fact from the very first days of our Government, the Federal Government had been permitting the Indians largely to govern themselves, free from state interference, and had exercised through statutes and treaties a sweeping and dominant control over persons who wished to trade with Indians and Indian Tribes. Warren Trading Post Co. v. Arizona State Tax Commission (S.Ct. of U.S. 1965) 380 U.S. 685, 85 S.Ct. 1242.
Congress has, since the creation of the Navajo Reservation nearly a century ago, left the Indians on it largely free to run the Reservation and its affairs without state control, a policy which has automatically relieved Arizona of all burdens for carrying on those same responsibilities. Warren Trading Post Co. v. Arizona State Tax Commission (S.Ct. of U.S. 1965) 380 U.S. 685, 85 S.Ct. 1242.
Education, Roads and Other Services
In compliance with its treaty obligations the Federal Government has provided for roads, education and other services needed by the Indians. Warren Trading Post Co. v. Arizona State Tax Commission (S.Ct. of U.S. 1965) 380 U.S. 685, 85 S.Ct. 1242.
Authority Over Reservation
“Congress has not clearly expressed its intent that 42 U.S.C. § 656 (determination of child support absent a court order), nor any section of the AFDC legislation, is meant to abrogate Indian tribal sovereignty. A congressional intent to allow states to decide the child support obligations of Indians living on a reservation is not clearly expressed on the face of the AFDC legislation.” Billie v. Abbott, 6 Nav. R. 66, 69 (Nav. Sup. Ct. 1988).
“Implicit in the Treaty of 1868 is the understanding that the internal affairs of the Navajo people are within the exclusive jurisdiction of the Navajo Nation government. [ … ] Because Navajo domestic relations is the core of the tribe’s ‘internal and social relations’ the Navajo Nation has exclusive power over domestic relations among Navajos living on the reservation.” Billie v. Abbott, 6 Nav. R. 66, 68–69 (Nav. Sup. Ct. 1988), citing Williams v. Lee, 358 U.S. 217, 221–222 (1959) and Fisher v. District Court, 424 U.S. 382 (1976).
Congress recognized the authority of the Navajos over their Reservation in the Treaty of 1868, and has done so ever since, and if this power is to be taken away from them, it is for Congress to do it. Williams v. Lee (S.Ct. of U.S. 1959) 358 U.S. 217, 79 S.Ct. 269, 3 L.Ed. 2d 251.
National Labor Relations Board had jurisdiction to order the holding of representation election in a mining plant located on the Navajo Reservation even though under Treaty of 1868 Tribe has broad powers of self government, including right to exclude outsiders, and Tribal Council had decided to prevent union activity on the Reservation. Navajo Tribe v. National Labor Relations Board (C.A.D.C. 1961) 288 F.2d 162, cert. den. 366 U.S. 928, 81 S.Ct. 1649, 6 L.Ed.2d 387.
To same effect as Williams v. Lee. Oliver v. Udall (C.A.D.C. 1962) 306 F.2d 819, cert. den. 372 U.S. 908, 83 S.Ct. 720, 9 L.Ed.2d 418.
The provisions of Article II of the Treaty of 1868 between United States and the Navajo Tribe of Indians reserves to the Navajo Tribe the power to exclude non–Navajos from the Navajo Reservation, with the exception of those persons authorized to enter thereon by virtue of the treaty itself, a law of the United States, or an order of the President of the United States. Dodge v. Nakai (1969) 298 F.Supp. 26.
The Civil Rights Act relating to Indians imposed new responsibilities upon the Navajo Tribe with respect to both the manner in which it could exercise its governmental powers and the objectives that it could pursue through their implementation. Dodge v. Nakai (1969) 298 F.Supp. 26.
Congress may modify the manner in which Indian Tribes may exercise their quasi-sovereign powers. Dodge v. Nakai (1969) 298 F.Supp. 26.
When Navajo Tribe adopted as Tribal law the Code of regulations of Department of Interior generally applicable to Indian Tribes and Secretary of Interior approved the action by the Navajo Tribe, the Secretary’s law and order Code no longer applied to Navajo Tribe. Dodge v. Nakai (1969) 298 F.Supp. 26.
State Authority and Jurisdiction
“The Navajo Nation does not grant immunity from suit to any state as a matter of comity. We have also not found any agreement, express or implied, between the Navajo Nation and Utah which would require this Court to recognize Utah’s defense of sovereign immunity. We have previously said that the states of the Union are foreign governments in relation to the Navajo Nation.” Billie v. Abbott, 6 Nav. R. 66, 72 (Nav. Sup. Ct. 1988).
“The AFDC legislation does not explicitly authorize Utah to decide tribal domestic relations, thus, Utah’s determination of Billie’s support obligation is an unlawful interference with Billie’s right to be regulated by Navajo law. Billie can seek the protection of Navajo law to preserve his right to have his support obligation decided by Navajo law.” Billie v. Abbott, 6 Nav. R. 66, 70 (Nav. Sup. Ct. 1988).
The Navajo Indian Reservation is not a completely separate entity existing outside the political and governmental jurisdiction of the State of New Mexico. Montoya v. Bolack (1962) 70 N.M. 196, 372 P.2d 387.
The test of state court jurisdiction is whether the state action impinges on the Reservation Indians to make their own laws and be governed by them. Batchelor v. Charley (1965) 74 N.M. 717, 398 P.2d 49; Warren Trading Post Co. v. Moore (1963) 96 Ariz. 110, 387 P.2d 809, reversed on other grounds Warren Trading Post Co. v. Arizona State Tax Commission (S.Ct. of U.S. 1965) 380 U.S. 685, 85 S.Ct. 1242.
The levy by Arizona of a tax on the gross proceeds or gross income as applied to a federally licensed Indian trader with respect to sales made to Reservation Indians on the Navajo Reservation cannot stand. Warren Trading Post Co. v. Arizona State Tax Commission (S.Ct. of U.S. 1965) 380 U.S. 685, 85 S.Ct. 1242.
The assessment and collection of such a tax would to a substantial extent frustrate evident congressional purpose of ensuring that no burden shall be imposed upon Indian traders for trading with Indians on the reservations except as authorized by Acts of Congress or by valid regulations promulgated under those Acts. Warren Trading Post Co. v. Arizona State Tax Commission (S.Ct. of U.S. 1965) 380 U.S. 685, 85 S.Ct. 1242.
This state tax on gross income would put financial burdens on the Indian trader or the Indians with whom he deals in addition to those Congress or the Tribes have prescribed, and could thereby disturb and disarrange the statutory plan Congress set up in order to protect Indians against prices deemed unfair or unreasonable by the Indian Commissioner. Warren Trading Post Co. v. Arizona State Tax Commission (S.Ct. of U.S. 1965) 380 U.S. 685, 85 S.Ct. 1242.
Indian traders trading on the Reservation with Reservation Indians are immune from a state tax like Arizona’s, not simply because those activities take place on the Reservation, but rather because Congress in the exercise of its power granted in Art. I, § 8, cl. 3, of the Constitution has undertaken to regulate Reservation trading in so comprehensive a way that there is no room for the states to legislate on the subject. Warren Trading Post Co. v. Arizona State Tax Commission (S.Ct. of U.S. 1965) 380 U.S. 685, 85 S.Ct. 1242.
State laws apply on the Reservation unless such application would interfere with self-government of reservation or impair a right granted or reserved by federal law. Industrial Uranium Co. v. State Tax Commission (1963) 95 Ariz. 120, 387 P.2d 1013.
Article 11 of the Treaty of 1868, did not exclude Arizona from collecting transaction privilege taxes from mining company in connection with mining, producing and shipping uranium and vanadium ores from lands in Arizona held in trust by the United States for the Navajo Tribe. Industrial Uranium Co. v. State Tax Commission (1963) 95 Ariz. 120, 387 P.2d 1013.
Federal Law
…[T]he application of the federal [ERISA] statute to the present matter and the resulting divestiture of Navajo control over the issue would violate treaty provisions and would dilute treaty-recognized rights of sovereignty and self-government. Specifically, applying ERISA to this matter would (1) touch upon the Navajo Nation’s exclusive rights of self-governance over internal affairs; (2) usurp the Navajo Nation’s decision-making power; and (3) abrogate rights over internal matters as guaranteed by the Treaty of 1868.” MacDonald, et v. Ellison, et al., 7 Nav. R. 429, 432 (Nav. Sup. Ct. 1999).
“Indian treaties are an exercise of the treaty powers of the United States under its Constitution, and they have the same dignity as treaties with foreign nations.” Arizona Public Service Co. v. Office of Navajo Labor Relations, 6 Nav. R. 246, 249 (Nav. Sup. Ct. 1990).
Tribal Authority
…[U]sing the Treaty of 1868, the Navajo Nation has the power to regulate non-Indian businesses. Even if the tribe has entered into a leasing or other commercial arrangement by contract in its capacity as a “commercial partner,” it still retains the governmental power to regulate that business.” Arizona Public Service Co. v. Office of Navajo Labor Relations, 6 Nav. R. 246, 256 (Nav. Sup. Ct. 1990).
“The treaty clearly envisaged the ability of the Navajo Nation to hire its own employees and agents, and to the extent that APS is considered to fall within this provision, the Navajo Nation has the power to regulate it or exclude it for disobedience to the sovereign.” Arizona Public Service Co. v. Office of Navajo Labor Relations, 6 Nav. R. 246, 252 (Nav. Sup. Ct. 1990).
Jurisdiction of Courts
“The Court holds that the Navajo Nation courts have authority to hear a claim against a motor vehicle manufacturer alleging that a vehicle defect resulted in the death of a Navajo police officer on a road located on trust land within the Navajo Reservation.” Ford Motor Company v. Kayenta District Court, and concerning Todecheene, No. SC–CV–33–07, slip op. at 1 (Nav. Sup. Ct. December 18, 2008).
“The Navajo Nation retains civil jurisdiction over claims arising within the Nation by inherent sovereignty under Article II of the Treaty.” Ford Motor Company v. Kayenta District Court, and concerning Todecheene, No. SC–CV–33–07, slip op. at 4 (Nav. Sup. Ct. December 18, 2008).
“As we stated in Dale Nicholson Trust, Article II specifically recognizes the Navajo Nation’s authority to regulate all non-members other than certain federal employees on its lands. […] The Nation’s Article II authority is no different whether on the original Reservation or later extensions.” Ford Motor Company v. Kayenta District Court, and concerning Todecheene, No. SC–CV–33–07, slip op. at 6 (Nav. Sup. Ct. December 18, 2008).
“Under the circumstances, the Court holds that Ford is present through its vehicles that entered the Nation’s territory. Ford actively participated in the sale and financing of the vehicles to the Navajo Nation government through a Ford dealer and Ford financing subsidiary. Ford had full knowledge that the vehicles were intended for the specific use of tribal officials performing official tribal activities. This Court has previously recognized inherent jurisdiction over a products liability claim when a diabetes drug entered the Nation through prescription, provision and/or ingestion within Nation. Cf. Nelson v. Pfizer, 8 Nav. R. 369, 373 (Nav. Sup. Ct. 2003). That one of those police vehicles crashed while performing official duties on a dirt road on trust land within the Nation is enough to invoke the Nation’s absolute civil jurisdiction under the Treaty. It is for these types of cases that the Navajo Nation Council enacted the Navajo Long–Arm Civil Jurisdiction and Service of Process Act, 7 N.N.C. § 253a.” Ford Motor Company v. Kayenta District Court, and concerning Todecheene, No. SC–CV–33–07, slip op. at 9 (Nav. Sup. Ct. December 18, 2008).
“The Court takes judicial notice that the Long Arm Civil Jurisdiction and Service of Process Act enacted in 2001 does not establish Navajo civil jurisdiction over non-members. The Act codified the inherent authority of the Navajo Nation as affirmed in Article II of the Treaty of 1868. As such, the Act clarified the modern application of this authority.” Ford Motor Company v. Kayenta District Court, and concerning Todecheene, No. SC–CV–33–07, slip op. at 9–10, footnote 5 (Nav. Sup. Ct. December 18, 2008).
“Under the Treaty of 1868 the Nation has authority to regulate non-Indian activity on trust lands.” Thinn v. Navajo Generating Station, Salt River Project; and Gonnie v. Headwaters Resources, No. SC–CV–25–06 and No. SC–CV–26– 06, slip op. at 4 (Nav. Sup. Ct. October 19, 2007), citing Dale Nicholson Trust v. Chavez, No. SC–CV–69–00, slip op. at 11–12 (Nav. Sup. Ct. January 6, 2004).
“The petitioner entered the Navajo Nation, married a Navajo woman, conducted business activities, engaged in political activities by expressing his right to free speech, and otherwise satisfied the Article II conditions for entry and residence and Articles I and II court jurisdiction.” Means v. The District Court of the Chinle Judicial District, 7 Nav. R. 383, 391 (Nav. Sup. Ct. 1999).
“There are two foundations for criminal jurisdiction in the Treaty of 1868, the history of its negotiation, and its application: those who assume relations with Navajos with the consent of the Navajo Nation and the United States are permitted to enter and reside within the Navajo Nation, subject to its laws, and non-Navajos Indians who enter and commit offenses are subject to punishment.” Means v. The District Court of the Chinle Judicial District, 7 Nav. R. 383, 391 (Nav. Sup. Ct. 1999).
“The plain language of Article II indicates that the Navajo Reservation exists for the exclusive use of not only Navajos, but other Indians, either as tribes or as individuals, where both the Navajo Nation and the United States agree to their admission. Given that jurisdiction of our courts is recognized in the Article II language, Indians such as the petitioner who are permitted to reside within the Navajo Nation fall within the same grouping as Navajo Indians in terms of the Treaty’s coverage.” Means v. The District Court of the Chinle Judicial District, 7 Nav. R. 383, 390 (Nav. Sup. Ct. 1999).