At the opening of the Carlisle Indian School in 1879, Richard Henry Pratt remarked that Indian boarding schools were necessary to “kill the Indian…and save the man.” In the 150 years since, removing American Indian children from their tribal communities has become a staple in the settler colonial project through the boarding school project, Indian adoptions, and the state-run family regulation system. In 1978, Congress attempted a course correct by enacting the Indian Child Welfare Act (“ICWA”) which extended protections to parents of Indian children and vested Indian Tribes with a legal interest in their member children. Aimed at protecting the best interests of the Indian child, ICWA has been under attack in recent years. As ICWA is applied in state courts around the country daily, American Indian children continue to be removed from their families at disproportionately high rates. This Article contextualizes the ongoing need for ICWA and argues that Indian child removal is a matter of Tribal public health. Removing Indian children has long negatively impacted tribal public health and continues to do so today. By removing the Indian child from their community to “save” them, settler colonialism’s goal was to eradicate the Tribal Nation. As such, this Article argues that Indian child welfare must be treated as a Tribal public health concern and resourced as such—with Tribes leading the way to provide the services their children and families need.
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.
Highly recommended. More great work on Anishinaabe Inaakoniewin from Prof. Stark.
Here is the abstract:
In the field of tribal law, the term justice is a commonly used term, yet the term has often gone undefined. So how is justice as an Indigenous concept defined? What does justice as an Indigenous concept entail? When is a dispute (or a tribal court action) justiciable? This article will address these questions. As evidenced from the story of The Woman Who Married A Beaver we can think of justice as inherently tied to our preexisting obligations and responsibilities to one another through the implementation of thoughtful decisions, made on behalf of the people through the achievement and maintenance of harmony, balance, and reciprocal kinship relationships. Utilizing this understanding, this article examines the concept of Indigenous justice through four basic principles: harmony, relationality, inclusivity; and responsibility. This article proceeds to illustrate examples of how the justiciability concepts of standing, ripeness, mootness, and the political question doctrine apply in tribal forums and provides tribal courts and tribal law practitioners recommendations for the future. In summary, this article urges tribal practitioners and tribal courts to utilize the principles embodied in the concept of Daabidawise Onaakonigewin (justice). As such, tribal practitioners and tribal courts will be able to recognize the reciprocal kinship relationships, responsibilities, duties, and obligations of all those that encompass Indigenous justice.
Highly recommended. Any work, especially great work like this, that connects Indigenous philosophies to federal Indian law is valuable work.
Here is the abstract:
It is time for federal submerged lands law to face a day of reckoning. This reckoning is necessary because assumed state sovereignty of submerged lands lacks a legal basis in basic property law, the Constitution, the federal trust relationship, and Indigenous law. Instead, it stems from antiquated rulings formulated, in Justice Gorsuch’s words, within the “atmosphere” of colonialism. In many instances, the historical record reflects that Tribes had neither ceded aboriginal title to such beds when a particular state was created, nor had Congress clearly abolished such title, as the law requires.
Reckoning is a strong word, but so is the authority and opportunity that comes with sovereign bed ownership. For many tribes, their creation stories, ceremonies, food sources, economies, environmental health, and cultural touchstones center upon specific waters believed to be included within their homelands, hunting and fishing grounds, and gathering places. But reckoning is not the end of the story. In the spirit of reconciliation, this article provides a reassessment of Indigenous title to submerged lands and argues that these lands are spaces of common governance in which the three sovereigns—federal, tribal, and state—share authority to manage a vital resource on which all peoples depend.
Part I begins with a discussion of why submerged lands ownership is fundamental to tribal culture and sovereignty. Part II then confront the atmosphere of colonialism that has excluded tribes from water spaces. We summarize the flawed legal test from United States v. Holt State Bank—the case most often used to determine Indian title to the submerged lands of navigable waterways—and explain why the test is both unlawful and inadequate to fulfill the United States’ trust obligations to tribes. In Part III, we propose a reckoning—a legal test better aligning with the Court’s newer jurisprudence in cases like Minnesota v. Mille Lacs Bandof Chippewa Indians and Herrera v. Wyoming. Ultimately, we advocate for the joint sovereign enterprise of placekeeping—caretaking the cultural, historical, ecological, economic, and social well-being of these spaces that serve as lifeways for us all. Through a corrected legal test to submerged lands, we will begin rebuilding the waterway “bundle” as an integrated legal whole.
Alexandra Fay, Stephen Galoob, W. Robert (Will) Thomas, and Jeffrey Y. Zhang have posted “Testing McGirt” on SSRN.
Here is the abstract:
McGirt v. Oklahoma (2020) and Oklahoma v. Castro-Huerta (2022) reallocated criminal jurisdiction across federal, state, and tribal governments in eastern Oklahoma on a scale unmatched in modern American history. Three testable predictions framed the debate around these landmark decisions: (1) that the federal courts would be inundated and incapacitated (the Deluge Hypothesis); (2) that concurrent state jurisdiction over General Crimes Act cases under Castro-Huerta would either strengthen or undermine enforcement (the Dual Sovereignty Hypotheses); and (3) that Indian country defendants would face harsher or more lenient sentences in federal court than in state court (the Disparity Hypotheses).
We test these predictions against a novel dataset of over 140,000 Oklahoma state criminal sentences and nearly 1,500 federal Indian country prosecutions hand-collected from PACER. Four findings emerge. State sentences imposed on American Indian defendants in the McGirt reservation counties fell by roughly 78%, while sentences elsewhere held steady or rose. The federal deluge was real but short-lived, consistent with the Oklahoma Court of Criminal Appeals’ 2021 decision against retroactive application in Matloff v. Wallace. Federal General Crimes Act filings collapsed after Castro-Huerta, supporting the warning that concurrent state jurisdiction would result in federal underenforcement. However, the increase in state prosecutions in the affected counties apparently subsumed the decline in federal prosecutions. And across every offense category we examine, federal sentences are equal to or lighter than their state counterparts.
These empirical findings should inform the future of federal Indian law and policy. The restoration of reservation status triggers serious consequences for federal, state, and tribal courts, and these consequences can be managed without sacrificing the rule of law. McGirt challenged the federal courts but did not break the system. Courts can wield criminal procedural rules to limit the fallout of major jurisdictional change. Our findings also show that concurrent jurisdiction results in significant effects on criminal practice. For better or for worse, Castro-Huerta produced a substantial return of General Crimes Act cases to the state system. And despite their strained capacity, federal courts tasked with adjudicating Indian country crimes sentenced consistently throughout the surge, at levels at or below those of Oklahoma-one of the most punitive states in the Union.
The destruction of Indigenous languages in both the United States and Canada has largely been the result of state-sanctioned boarding schools built and operated on the premise of destroying Indigenous culture. The United Nations Declaration on the Rights of Indigenous Peoples establishes international standards through which states can reconcile such boarding school histories. While Canada has aligned itself with these international standards to take accountability and provide compensation, the United States has lagged behind. This Note explores the history of Indigenous boarding schools, the legal channels through which compensation for Indigenous language loss has been provided in Canada, and how compensation for Indigenous language loss ought to be provided in the United States.
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