Turtle Talk

Luke Colvard has posted “Uncivilized Procedure,” forthcoming in the UCLA Law Review, on SSRN.

Here is the abstract:

This Comment addresses a persistent and under examined feature of federal Indian law: the adjudication of tribal rights without tribal participation. From the Marshall Trilogy to present day disputes, the rules of access to U.S. courts have repeatedly excluded tribes from cases that define their property and jurisdiction. The procedural barriers that facilitate this, including representation by the United States of tribal interests and the complete lack of tribal notice and intervention rights in Indian country criminal cases, are not relics of a bygone era. They continue to shape foundational Indian law decisions today.

This exclusion is unjust and destabilizing. When the United States purports to represent tribal interests while pursuing its own, tribes are silenced and later barred from relitigating outcomes that fail to reflect their needs. In criminal cases, Indian defendants may raise tribal jurisdiction to contest state authority while the tribe whose jurisdiction is contested remains unaware of the proceeding and unable to intervene. The already existential consequences of this system are worsened by denying tribal governments a right of action under §1983 to affirmatively challenge violations of their members’ rights. As a result, courts are often deprived of the expertise of the sovereigns most affected by their rulings and the deprivation of the rights of Native peoples is streamlined. This Comment contributes to the literature by emphasizing procedure as a central battleground of tribal sovereignty and concomitantly, Native cultural survival.

The Comment proceeds in three parts: it traces the history of tribal exclusion from courtrooms, identifies modern hurdles to tribal participation, and proposes reforms drawing on the Indian Child Welfare Act as a model. These reforms would not decolonize the courts, but they would help civilize their procedures.