Turtle Talk

Elizabeth Reese has published “Native Marburys: Judicial Review in Tribal Courts” in the University of Chicago Law Review.

Highly recommended!!

Here is the abstract:

Not all of America’s courts have judicial review. This Article is the first to discuss a body of judicial review case law in which this extraordinary judicial power has been rejected, is a recent development, or is not yet a settled question—judicial review cases from tribal courts. In a time when skepticism about the power that judicial review gives to the federal courts is at an all-time high, it is that much more important that we look to other examples of government systems wrestling with whether to give their courts the power of judicial review—to other courts that are wrestling with the scope of their own power and how to wield it.

This Article is a thorough review of approximately fifty tribal court opinions on judicial review from twenty-six different tribal nations. It makes four contributions. First, it provides insights about the institution of judicial review and its relationship to governance, namely that judicial review is a choice that must be made with careful attention to the law on the source and scope of judicial power, and to public opinion. Second, it helps us understand what tribal courts are and how they fit into their tribal government systems. Third, it demonstrates how this better understanding of tribal courts is essential to the rights questions that preoccupy mainstream discussion of and lawmaking about tribal courts. Policymakers and judges have argued that because some tribal courts have different structural power, they are unable to protect rights or prevent other tribal government actors from abusing their power. This Article demonstrates that making assumptions about tribal court power or capacity can lead federal policymakers and judges to misdiagnose problems or devise solutions that are ineffectual. The final, and perhaps most important, contribution of this Article is what it evidences about the complexity of legal discourse in tribal courts. As I have written about previously, the delegitimization of tribal law has played an important role in justifying American colonialism. This Article is yet another data point in a growing body of tribal law scholarship proving that tribal laws and tribal courts are not primitive, underdeveloped, or somehow unworthy of wielding legal power in the United States. Tribal courts are, instead, doing exactly what we want them to be doing: thinking deeply about the law and the way that the law structures their governments and can limit or protect the rights of their citizens.

Tribal courts are not infallible, but they are—I challenge anyone to defy after reading this Article—courts, real courts. With their own Marbury v. Madisons.