Fletcher Paper on “Tribal Justice Systems”

I drafted a paper titled “Tribal Justice Systems” for the Allegheny College Undergraduate Conference “Democracy Realized? The Legacies of the Civil Rights Movement” and posted it on SSRN. You can download here.

Here is the abstract:

This short paper is produced for the Allegheny College conference Democracy Realized? The Legacies of the Civil Rights Movement (March 28-29, 2014).

United States Supreme Court Justice Hugo Black, a former member of the Ku Klux Klan, authored the Court’s opinion in Williams v. Lee, a decision hailed as the opening salvo in the modern era of federal Indian law. The Williams decision was the work of the liberal wing of the Court, with important input by Chief Justice Warren and Justices Brennan and Douglas. Williams, a ringing endorsement of inherent tribal governance authority, more specifically endorsed tribal justices systems as embodied in tribal courts. Without Williams and similar cases, it is unlikely that tribal governments and Congress would act to develop tribal justice systems. Williams, and the tribal courts that arose as a result, was a powerful civil rights decision that commentators rightfully have linked to Brown v. Board of Education.

This paper will survey several tribal justice systems in an effort to identify commonalities and complexities. There are hundreds of tribal justice systems in the United States; each of them unique in the details, but many of them similar to other tribal, state, and federal courts.

The paper is divided into three sections. The first two parts include a section on adversarial tribal justice systems and a section on non-adversarial tribal justice systems, often called restorative justice systems. The third part involves greater discussion of the complexities of incorporating tribal customary and traditional law into tribal common law.

In case one wonders, “Representing Justice” by Judith Resnik and Dennis Curtis influenced the paper.


Turtle Talk Voters Confirm Worcester v. Georgia as Greatest Case (Again) in the Supreme Court Tournament

Sorry for the delay. Lots been happening. But as expected you all voted Worcester v. Georgia as the Greatest Case in the Turtle Talk poll, beating out Williams v. Lee badly — 70 percent to 30 percent (83 out of 109 votes).

I recall we did a short poll a few years back, and Worcester beat out a few other cases for the same title….


Turtle Talk Greatest Cases Poll Concludes with Final Round

Today, I will reluctantly present the final round of the Turtle Talk Greatest Cases Tournament. I am reluctant because it mostly was fun to do this, and I don’t really want it to end. So I’ll keep doing them. They’re fun, and most everyone likes them.

Final Round Match-up

(1) Worcester v. Georgia versus (7) Williams v. Lee

I’ve been characterizing these two cases lately as old-timey sovereignty versus somewhat younger old-timey sovereignty. Here’s part of what I wrote about Worcester when I wrote about what I do when I teach the case:

[I]n the 1832 Term, the Marshall Court voted 5-1 to declare unconstitutional the laws of Georgia purporting to invalidate the entire Cherokee Nation in Worcester v. Georgia. Though Chief Justice Marshall’s wife Polly had passed during the previous recess and his health wavered, he delivered an opinion one commentator declared as “one of the most powerful he ever delivered.” Justice Story wrote to his wife, “Thanks be to God, . . . the Court can wash their hands clean of the iniquity of oppressing the Indians and disregarding their rights.”

Here’s what I wrote about Williams recently in an unpublished paper:

In 1959, however, the Supreme Court decided Williams v. Lee, a fairly dramatic decision roundly affirming inherent, and exclusive, tribal authority to adjudicate civil disputes arising in Indian country involving reservation Indians (as defendants). Williams recognized that Congress intended the IRA to be a vehicle for the development of tribal justice systems. The Court also noted that the tribal justice system at issue, the Navajo judiciary, was exemplary: “The Tribe itself has in recent years greatly improved its legal system through increased expenditures and better-trained personnel. Today the Navajo Courts of Indian Offenses exercise broad criminal and civil jurisdiction which covers suits by outsiders against Indian defendants.”

Enough about me. Here’s the poll. We’ll go two days instead of one.

Arizona Attorney (Ariz. State Bar Journal) Lists Arizona v. California as Most Important Case of State’s History

Two Indian tax cases and Williams v. Lee are also included in the top 50.

Here is the article. The list starts on page 18. And the selected pages from the magazine:

Az Atty Top 50 Article

Bethany Berger’s History of Williams v. Lee

Bethany Berger has posted “Williams v. Lee and the Debate over Indian Equality,” forthcoming in the Michigan Law Review, on SSRN. Here is the abstract:

Williams v. Lee (1959) created a bridge between century-old affirmations of the immunity of Indian territories from state jurisdiction and the tribal self-determination policy of the twentieth century. It has been called the first case in the modern era of federal Indian law. Although no one has written a history of the case, it is generally assumed to be the product of a timeless and unquestioning struggle of Indian peoples for sovereignty. This Article, based on based on interviews with the still-living participants and examination of the congressional records, Navajo council minutes, and Supreme Court transcripts, records, and justice’s notes, reveals an unexpected complexity in both Indian and non-Indian contributions to the case and the era in federal Indian policy from which it emerged.

This history shows that both Williams and the policy developments that surrounded it emerged from consensus about the need for Indian equality and equal opportunity in the 20th century, but Indian and non-Indian debate about whether equality meant full assimilation and termination of the special legal status of tribes, or continued respect for the ability of Indian peoples to govern themselves. It makes this debate concrete through the story of the Williams family, for whom the state collection action and the resulting seizure of the family sheep herd struck at the heart of Navajo lifestyle and culture. It further connects the case to the momentous debates over African American integration generated with Brown v. Board of Education (1954) and Cooper v. Aaron (1958). Ultimately, I argue, Williams v. Lee and the self-determination movement that followed it represent a choice by American Indians to insist that respect for tribal status was necessary to ensure Indian equality in the modern era. This history and its results provide an important lesson today as federal Indian policies are increasingly attacked as fundamentally inconsistent with fairness and equality.

New Scholarship on Williams v. Lee

Dewi I. Ball has posted “Williams v. Lee (1959) – 50 years later: A Re-assessment of One of the Most Important cases in the Modern-era of Federal Indian Law” on BEPress (download here). Here is the abstract:

It is 50 years since the landmark decision of Williams v. Lee was handed down by Justice Hugo Lafayette Black and the United States Supreme Court. At the time, the case was a watershed event that signified the legal resurgence of Native America in Federal Indian law and in particular, the renaissance of the Indian sovereignty doctrine, inherent tribal sovereignty and the principles of Worcester v. Georgia. There can be no doubt that the eloquently constructed opinion by Hugo Black brought positive news for all Native Americans, especially in light of the process of Termination that was being pursued by Congress and the United States President. However, against this nascent sense of renewal and hope, the Williams case also began what became an insidious trend in the decision-making process of the U.S. Supreme Court; the weakening of the Indian sovereignty doctrine and some of the key attributes of tribal power; namely civil, criminal and taxation authority. Much of the academic literature in the field of Federal Indian law and Native American studies points to the importance of the Williams case as one which strengthened Native American sovereignty but other academics, from the 1990s, have questioned whether the case was an overall success for the authority of Native Americans on their reservations in the complexity of what is Federal Indian law. Although this article will analyze the re-affirmation of the Indian sovereignty doctrine and inherent tribal sovereignty in the Williams opinion, through the use of archival materials from the private papers of U.S. Supreme Court Justices, it will also be the first article in Native American studies to examine behind the scenes discussions and processes used in the Williams case and argue that the weakening of the Indian sovereignty doctrine began in 1959.

Scholarship on this case is burgeoning. Hon. Raymond Austin’s book “Navajo Courts and Navajo Common Law” touches upon the case from the point of view of the Navajo Nation government, which treated it as a kind of test case.

This work parses through the papers of Justice Brennan for an inside look at how the Court decided the case. A sobering work well worth reading.

Supreme Court Outcomes: Federal Indian Law from 1959

Here’s my version of the wins and losses in the Supreme Court from 1959’s Williams v. Lee to 1987’s California v. Cabazon Band. And then from Cabazon Band to the last case (Wagnon). I conclude (similar to Alex Skibine in the North Dakota Law Review and David Getches before him in the California Law Review and the Minnesota Law Review), that tribes have won 12 out of 48 cases (I counted the “ties” as losses because they are more so a loss than anything else) since Cabazon. Prior to and including Cabazon all the back to Williams, tribes won 49 out of 82 cases, a 60 percent “win” rate.


Williams v. Lee (1959) — W

Federal Power Commission v. Tuscarora Indian Nation (1960) — L

United States v. Grand River Dam Authority (1960) — W

Seymour v. Superintendent (1962) — W

Metlakatla Indian Community v. Egan (1962) — W

Organized Village of Kake v. Egan (1962) — L

Arizona v. Californian (1963) — W

Warren Trading Post v. Arizona State Tax Commission (1965) — W

Poafpybitty v. Skelly Oil (1968) — W

Peoria Tribe v. United States (1968) — W

Puyallup Tribe v. Dept. of Game (1968) — L

Menominee Tribe v. United States (1968) — W

Choctaw Nation v. Oklahoma (1970) — W

Tooahnippah v. Hickel (1970) — W

Kennerly v. District Court (1971) — W

United States v. Southern Ute (1971) — L

Affiliated Ute Citizens v. United States (1972) — W

United States v. Jim (1972) — L

Mescalero Apache Tribe v. Jones (1973) — L

McClanahan v. State Tax Commission of Arizona (1973) — W

Keeble v. United States (1973) — W

United States v. Mason (1973) — L

Mattz v. Arnett (1973) — W

Department of Game v. Puyallup Tribe (1973) — L

Oneida Indian Nation v. Oneida County (1974) — W

Morton v. Ruiz (1974) — L

Morton v. Mancari (1974) — W

United States v. Mazurie (1975) — W

Antoine v. Washington (1975) — W

DeCoteau v. District Court (1975) — L

Fisher v. District Court (1976) — W

Colorado River Water Conservation Dist. v. United States (1976) — L

Moe v. Confederated Salish and Kootenai Tribes (1976) — W

Northern Cheyenne Tribe v. Hollowbreast (1976) — W

Cappaert v. United States (1976) — W

Bryan v. Itasca County (1976) — W

Delaware Tribal Business Committee v. Weeks (1977) — W

Rosebud Sioux Tribe v. Kneip (1977) — L

United States v. Antelope (1977) — W

Puyallup Tribe v. Dept. of Game (1977) — W

Finch v. United States (1977) — GVR

Oliphant v. Suquamish Indian Tribe (1978) — L

United States v. Wheeler (1978) — L

Santa Clara Pueblo v. Martinez (1978) — W

United States v. John (1978) — W

Washington v. Yakima Indian Nation (1979) — L

Wilson v. Omaha Tribe (1979) — L

Washington v. Fishing Vessel (1979) — W

State of Idaho ex rel. Evans v. Oregon & Washington (1980) — L

United States v. Clarke (1980) — L

United States v. Mitchell (1980) — L

Andrus v. Glover Constr. Co. (1980) — L

Washington v. Confederated Colville Tribes (1980) — L

Central Machinery v. Arizona State Tax Commission (1980) — W

White Mountain Apache Tribe v. Bracker (1980) — W

United States v. Sioux Nation (1980) — W

Montana v. United States (1981) — L

Merrion v. Jicarilla Apache Tribe (1982) — W

Ramah Navajo School Board v. Bureau of Revenue of New Mexico (1982) — W

Arizona v. California (1983) — W

New Mexico v. Mescalero Apache Tribe (1983) — W

Nevada v. United States (1983) — L

United States v. Mitchell (1983) — W

Rice v. Rehner (1983) — L

Arizona v. San Carlos Apache Tribe (1983) — L

Solem v. Bartlett (1984) — W

Escondido Mut. Water Co. v. Mission Indians (1984) — L

Three Affiliated v. Wold Engineering (1984) — W

United States v. Dann (1985) — L

Oneida County v. Oneida Indian Nation (1985) — W

Kerr-McGee v. Navajo Tribe (1985) — W

National Farmers Union v. Crow Tribe (1985) — W

Montana v. Blackfeet Tribe(1985) — W

Mountain States Tel. & Tel. Co. v. Pueblo of Santa Ana (1985) — L

Oregon Dept. of Fish and Wildlife v. Klamath Indian Tribe (1985) — L

Cal. State Board of Equalization v. Chemehuevi Indian Tribe (1985) — L

South Carolina v. Catawba Indian Tribe (1986) — L

United States v. Mottaz (1986) — L

United States v. Dion (1986) — L

Bowen v. Roy (1986) — L

Three Affiliated v. Wold Engineering (1986) — W

Iowa Mutual v. LaPlante (1987) — W

California v. Cabazon Band (1987) — W

49 wins — 33 losses — 60 percent “win” rate


United States v. Cherokee Nation (1987) — L

Hodel v. Irving (1987) –L

Lyng v. Northwest Indian Cemetery (1988) — L

Employment Division v. Smith (1988) — L

Oklahoma Tax Commission v. Graham (1989) — L

Mississippi Band of Choctaw Indians v. Holyfield (1989) — W

Cotton Petroleum v. New Mexico (1989) — L

Brendale v. Yakima Indian Nation (1989) — L

Employment Division v. Smith (1990) — L

Wyoming v. United States (1990) — W

Duro v. Reina (1990) — L

Oklahoma Tax Commission v. Citizen Potawatomi (1991) — W

Blatchford v. Native Village of Noatak (1991) — L

County of Yakima v. Yakima Indian Nation (1992) — L

Negonsott v. Samuels (1993) — L

Oklahoma Tax Commission v. Sac and Fox Nation (1993) — W

Lincoln v. Vigil (1993) — L

South Dakota v. Bourland (1993) — L

Hagen v. Utah (1994) — L

Department of Taxation and Finance of New York v. Milhelm Attea (1994) — L

Oklahoma Tax Commission v. Chickasaw Nation (1995) — W

Seminole Tribe v. Florida (1996) — L

Babbitt v. Youpee (1997) — L

Strate v. A-1 (1997) — L

Idaho v. Coeur d’Alene Tribe (1997) — L

South Dakota v. Yankton Sioux Tribe (1998) — L

Alaska v. Native Village of Venetie (1998) — L

Montana v. Crow Tribe (1998) — L

Kiowa Tribe v. Manufacturing Techs. (1998) — W

Cass County v. Leech Lake Band of Chippewa Indians (1998) — L

Arizona Dept. of Revenue v. Blaze Constr. (1999) — L

Minnesota v. Mille Lacs (1999) — W

Amoco Production v. Southern Ute (1999) — L

Rice v. Cayetano (2000) — L

Arizona v. California (2000) — W

Dept. of Interior v. Klamath Water Users (2001) — L

C&L Enters v. Citizen Potawatomi (2001) — L

Atkinson Trading v. Shirley (2001) — L

Idaho v. United States (2001) — W

Nevada v. Hicks (2001) — L

Chickasaw Nation v. United States (2001) — L

United States v. White Mountain Apache Tribe (2003) — W

United States v. Navajo Nation (2003) — L

Inyo County v. Bishop Paiute (2003) — L

United States v. Lara (2004) — W

Cherokee Nation v. Leavitt (2005) — W

Sherrill v. Oneida Indian Nation (2005) — L

Wagnon v. Prairie Band Potawatomi Nation (2005) — L

12 wins — 36 losses — 25 percent win rate