Elizabeth Reese

Elizabeth Reese on the Lack of Tribal Representation in the Federal Government

Matthew L.M. Fletcher

Elizabeth Reese has published “Tribal Representation and Assimilative Colonialism” in the Stanford Law Review.

Here is the abstract:

There are 574 federally recognized domestic dependent tribal nations in the United States. Each tribe is separate from its respective surrounding state(s) and governs itself. And yet, none of them have the power to send representatives to Congress. Our democratic representative structures function as if tribal governments and the reservations they govern do not exist. But tribal citizens do not simply live within a state and are not simply governed by that state like any other state citizen. Rather, it is tribal law and tribal governments—not state law or state governments—that primarily govern and shape the lives of tribal citizens living on reservations. Tribal governments are not complementary or subsidiary to state governments—they are frequent rivals for power and resources. This system, simply put, doesn’t make sense. Tribes should have their own representation in the federal government. This Article makes the case for why and examines how this seemingly obvious omission in our democratic structuring came to pass.

This Article examines the democratic mismatch between existing governments—which include not only 50 states, but also 574 federally recognized tribes—and the representative democratic structure that is built into the Constitution around the institution of the state. It details the failed attempts of tribal governments to obtain representation, either as states or outside of statehood. This history reveals a story about race, power, colonialism, and institutions. Attempts by white majorities to hold onto political power within states included denying Native peoples’ individual rights and denying statehood to largely Native areas until Native people assimilated or white citizens outnumbered them.

These dynamics, which this Article dubs “assimilative colonialism,” have not only shaped our existing democratic structures but have also had a lasting effect on Native relationships with political power. The nefarious brilliance of assimilative colonialism was to offer American political power to Native peoples—whether citizenship, statehood, or delegates—only and always at the cost of what made them Native. As a result, many Native people justifiably view American political power not as empowering but as dangerous. Assimilative colonialism has thus held back the emergence of Native movements for political reform by making it impossible to even imagine tribal representation in a real sense since it seemed only possible through assimilation.

It is long overdue that we step back and examine the legacy of assimilative colonialism in American representative democracy. We ought to think about structural reform and what representative structures could—and maybe should—have been on the table for tribal governments and their citizens since the beginning. We ought to be asking: What would American democratic structures look like if we truly incorporated tribal governments as equal sovereigns within the United States?

Scholars’ Circle Interviews: Bob Miller, Liz Reese, and Fletcher on Castro-Huerta

Matthew L.M. Fletcher

Here. It’s like a podcast thing-y.

Liz Reese and Abby Abinanti on Tribal Criminal Laws

Matthew L.M. Fletcher

From Stanford, here is “Imagining Justice: American Indian Tribal Laws of Criminal Responsibility.”

Elizabeth Reese Joins Stanford Law Faculty

Matthew L.M. Fletcher

Here is the announcement.

An excerpt:

Stanford Law School (SLS) today announced that Elizabeth A. Reese, Yunpoví, which means Willow Flower in the Tewa language, will join its faculty on June 1 as an assistant professor of law. With a focus on American Indian tribal law and constitutional law, Reese’s scholarship examines the way government structures, citizen identity, and the history that is taught in schools can impact the rights and powers of oppressed racial minorities within American law. Reese is tribally enrolled at Nambé Pueblo, one of the six Tewa-speaking pueblos of the northern Rio Grande region, where she is an active member of the community. Reese’s appointment is part of a Stanford University faculty cluster hire to add eminent scholars and researchers who are leaders in the study of the impact of race in America, an initiative under Stanford’s IDEAL initiative. Established in 2018, IDEAL is a larger cross-campus effort to create a more inclusive, accessible, diverse and equitable university for all Stanford community members.

Elizabeth Reese on McGirt: “Welcome to the Maze: Race, Justice, and Jurisdiction in McGirt v. Oklahoma”

Matthew L.M. Fletcher

In the University of Chicago Law Review Online, here. An excerpt from this outstanding essay:

The morning of July 9th, American Indian tribal citizens and non-Indian residents of eastern Oklahoma woke up and experienced a similar shock. The United States Supreme Court, in an opinion authored by Justice Neil Gorsuch, announced that the Muscogee (Creek) Nation’s reservation boundaries had never been disestablished.

The Supreme Court’s 5–4 decision in McGirt v. Oklahoma implies, though does not explicitly hold, that eastern Oklahoma is, was, and always had been within the undiminished boundaries of the Muscogee (Creek), Cherokee, Chickasaw, Choctaw, and Seminole Nation’s reservations. The ruling was shocking and confusing for both groups of American citizens because they were experiencing a bit of what “justice” is like for the other group for the very first time.

That Thursday morning gave American Indian people a glimpse of what it must be like not to be “the Indians.” On that day, American Indians weren’t reduced to a metaphorical Red Sea, always parting to make way for White Americans’ interests. Instead, they were able to win despite those interests and without the indignities that have become the norm in the Supreme Court’s Indian law opinions.

That same morning gave the non-Indians of eastern Oklahoma a glimpse of part of the Indian experience: waking up to helpless confusion about what the United States government has just done to your lands and rights, followed by the even greater problem of trying to understand the confusing jurisdictional rules that have been the status quo in Indian Country for a long time.

At times like this I think that Lady Justice must have a sense of humor.

Harvard Law School Profile of Elizabeth Reese, Who Graduates Thursday!

Matthew L.M. Fletcher

Here is “Elizabeth Reese: The making of a modern warrior.”

Excerpts:

Reese was raised 20 miles north of Santa Fe, New Mexico, at the foot of the Sangre de Cristo Mountains, as a member of the Pueblo of Nambé tribe. The village there is small and old—it dates back to the 14th century—as is the tribe that makes the reservation home. Some 1,100 members of the 2,000-person Nambé tribe live on the 20,000-acre reservation, which is filled with cottonwoods, juniper, and scrub oak, and surrounded by sandstone and mountains and river. Such isolation has helped the community maintain its culture and traditions.

Reese was raised squarely in that community and in that culture, although she’s always felt she belonged in two very different worlds. She grew being called Elizabeth but also Yunpovi (which means Willow Flower in the Tewa language). She may have been surrounded by scrub pine, but her father read her Homer as a child, which helped her navigate traditionally elite white spaces more easily than she might have otherwise.

And:

As an undergraduate she developed a background in political theory, which led her to England and the University of Cambridge. There she earned a Master of Philosophy in political thought and intellectual history and did work on Indian political theory. She counts herself as one of the first Native Americans to attend the university and one of the first scholars there to focus on Indian ideas.

Reese’s commitment to the study—and protection—of Native concerns led her to Harvard Law School and shaped her focus during her three years. She built visibility, programming, and recruitment as a leader in the HLS Native American Law Students Association. She helped to write a District Court amicus brief intervening in a tribal water jurisdiction case through the Native Amicus Briefing Project. She also served as a congressional intern and a fellow for the Senate Judiciary Committee, and interned at the Department of Justice in the civil rights division.

And:

After graduation Reese will clerk for Judge Amul R. Thapar at the U.S. District Court for the Eastern District of Kentucky. Late in the year she’ll head to Washington, D.C., as a Public Service Venture Fund Redstone Fellow at the NAACP Legal Defense and Educational Fund. The breadth of cases she’ll be part of—from litigating voting rights on one side of the country to school desegregation on the other side—excites her.

While Reese hopes to spend the early part of her career working on civil rights cases that affect the lives of people of color in the U.S—including her family members—she also hopes to someday practice Indian law. After all it’s the law, she says, that determines whether or not Indian tribes survive.

“It can’t be understated how fragile our future is—how our survival is still something we have to fight for,” says Reese. “Unlike a lot of other groups or identities, this is our only homeland. Our culture exists nowhere else in the world if we fail to ensure its survival here. I take that challenge very seriously and hope I can do all I can to protect my tribe and my people and our sovereignty.”