As in the international arena, recognition is vital to tribal sovereignty.Footnote ¹ Federally recognized tribes have a direct government-to-government relationship with the United States. This means federally recognized tribes are more than nonprofits, corporations, or social clubs; rather, federal recognition means tribes are sovereign governments with the right to make their own laws and be governed by them. Accordingly, federal laws can single out the citizens of federally recognized tribes for unique treatment without violating the Constitution’s Equal Protection Clause because federal recognition elevates “Indian” from a racial to a political classification. Federally recognized tribes can have reservations, and state law is presumed to be inapplicable on the land of federally recognized tribes. Thus, federal recognition acknowledges a tribe exists as a government.

15.1 Recognized Tribes

Currently, there are 574 federally recognized tribes, and each is unique. For example, the Navajo Nation has a 16 million-acre reservation – larger than the state of West Virginia – but the Pitt River Tribe’s reservation encompasses 1.32 acres.Footnote ² The Cherokee Nation has the largest population of any tribe with 430,000 citizens.Footnote ³ The Augustine Band of Cahuilla Indians has a population of approximately twelve citizens, making it the smallest tribe.Footnote ⁴ Of the approximately 10,000 citizens of the Mississippi Band of Choctaw Indians, 80 percent speak fluent Choctaw,Footnote ⁵ whereas few of the Choctaw Nation’s 200,000-plus citizens speak Choctaw.Footnote ⁶

But not all tribes are federally recognized. Some tribes are recognized exclusively by the surrounding state. Most states do not provide the tribes they recognize with any benefits, but some states confer significant benefits on the tribes they recognize, such as Connecticut affording tribes reservations and tax exemptions.Footnote ⁷ While state recognized tribes are eligible for a handful of federal programs, state recognized tribes are not usually considered “tribes” under federal law. This means state recognized tribes are not sovereigns, and the individuals enrolled in state recognized tribes lack political status as Indians. Though state recognition has few sovereign or material benefits, it does provide an air of legitimacy. Hence, state recognition is better than no recognition, and some groups claiming tribal status lack any recognition. Both state recognized tribes and non-recognized are typically legally organized as nonprofit corporations.

To be sure, some state recognized and non-recognized tribes have dubious claims to tribal status. For example, the Los Angeles Times ran an exposé highlighting minority contracts awarded to very questionable tribes.Footnote ⁸ Determining which tribes are “real” is a highly controversial matter. And for all its importance, federal recognition is often a matter of historical accident.

15.2 Achieving Federal Recognition

The United States has recognized tribes as sovereigns since its inception. The first tribe formally recognized by the United States was the Delaware in 1778. The United States pursued a treaty with the Delaware because it wanted access through the tribe’s land and hoped the tribe would aid the Continental Army.Footnote ⁹ Over the next ninety-three years, the United States would enter approximately 400 treaties with Indian tribes. Treaties are nation-to-nation agreements; hence, treaties clearly acknowledge tribes’ sovereign status. But in 1871, the United States stopped making treaties with tribes. From that point on, the United States engaged with tribes via statutes and executive orders. The Bureau of Indian Affairs (BIA) also recognized some tribes by deciding to extend services to them.

Despite deciding to recognize tribes, there was no formal definition of a tribe.Footnote ¹⁰ Without formal criteria, recognition was often a matter of luck. For example, the United States entered treaties with tribes who posed military threats and were on valuable lands. Hence, tribes who posed no military threat or had undesirable territories were unlikely to enter a treaty with the United States.Footnote ¹¹ Many of these tribes were denied recognition. Throughout most of the United States’ history, the federal government expected tribes to disappear, so it was not particularly concerned about recognizing tribes or accurately classifying tribal communities. Similarly, stereotyped notions of tribal identity were used when making recognition decisions. To illustrate, the BIA refused to recognize one tribe because its citizens had radios, and radios indicated its citizens were “civilized” and not real Indians.Footnote ¹² The congressionally created American Indian Policy Review Commission found some tribes were denied federal recognition based purely on cost; that is, recognizing the tribe would be too financially burdensome for the BIA.Footnote ¹³ Racism has also factored into federal recognition determination as tribes with Black ancestry often faced questions about their authenticity.Footnote ¹⁴

Arbitrary recognition decisions became a bigger problem during the 1970s. The United States Indian policy had shifted to a policy of tribal self-determination, and minority rights were becoming a more significant issue. Accordingly, an increasing number of groups were claiming to be tribes. In response to a federal report admitting the inconsistencies of tribal recognition decisions, the BIA created the administrative federal acknowledgment process in 1978. The process requires tribes to satisfy seven criteria:

1. 1. Petitioner must be consistently identified as an American Indian entity since 1900.

2. 2. From 1900 to present, the Petitioner must be a distinct community.

3. 3. From 1900 to present, the Petitioner must exercise political authority over the community.

4. 4. Petitioner must provide a governing document.

5. 5. The members of the Petitioner must descend from a historical Indian tribe or group of tribes that amalgamated and functioned as a single entity.

6. 6. Petitioner must be predominantly composed of persons who are not enrolled in a federally recognized tribe.

7. 7. Petitioner must not have been terminated by Congress or barred from federal recognition.Footnote ¹⁵

While the federal acknowledgment process was supposed to be objective and efficient, it has failed on both accounts.

15.3 Problems with the Federal Acknowledgment Process

The federal acknowledgment process is indisputably a failure, as has been acknowledged by Republicans, Democrats, and the Government Accountability Office (GAO).Footnote ¹⁶ The process was supposed to provide equitable, consistent tribal determinations in two years.Footnote ¹⁷ However, the GAO has determined the BIA recognition decisions have been inconsistent. A seventy-year gap was too long to show continuous existence for one tribe, but the BIA determined a seventy-year gap did not disprove the continuous existence of a different tribe.Footnote ¹⁸ And rather than two years, completing the process often takes more than thirty years.Footnote ¹⁹ The process can require petitioning groups to compile more than 100,000 pages of documents.Footnote ²⁰ Compiling these documents can easily cost more than $1 million, a sum most petitioning groups do not have.Footnote ²¹ While a thorough procedure is reasonable, the federal acknowledgment process goes too far. According to John Norwood, Co-Chair of the National Congress of the American Indians’ Task Force on Federal Acknowledgment, “an estimated 72 percent of currently recognized Tribes could not successfully navigate the process as the criteria are applied today.”Footnote ²²

To be sure, documentation is a reasonable requirement, but the level of proof currently demanded is often unfeasible. Writing is not part of traditional Indigenous cultures; hence, Indigenous People did not keep written records of their existence. Most traditional Indigenous knowledge – to this day – is often transmitted orally,Footnote ²³ and the BIA does not give much weight to oral records.Footnote ²⁴ The existing historical written records of Indigenous People were usually transcribed by Europeans and Americans who were not well-versed in tribal culture. Moreover, many Americans expected tribes to disappear anyway, so they were not fastidious in documenting tribal customs.Footnote ²⁵ Similarly, racism undermined recordkeeping efforts. For example, Virginia’s Racial Integrity Act of 1924 destroyed all evidence of Indians within its borders and made it virtually impossible for tribes in Virginia to successfully complete the federal acknowledgment process.Footnote ²⁶ Then Indians who could pass as white often did to avoid discrimination. These individuals would have left scant evidence of their tribal affiliation, and ironically, their efforts to avoid discrimination now lead to discrimination in the federal acknowledgment process.Footnote ²⁷

Although the criteria themselves are facially reasonable, they are heavily influenced by stereotypes about what a tribe should be. Consequently, tribes seeking federal recognition must contort their image to match what western eyes would like to see. To illustrate, the administrative regulations automatically assume a tribe is a distinct community under a common political leadership if half the group’s members consistently intermarry.Footnote ²⁸ But as the regulations acknowledge, marrying outside of the tribal community was a common practice throughout Indigenous North America,Footnote ²⁹ which was practical as intermarriage increased genetic diversity and facilitated commercial relationships. Moreover, the very concepts of political authority and community are highly culturally relative. While some tribes had highly structured governments, most were decentralized and exercised little authority over their citizens.Footnote ³⁰ This means many tribes may not be able to meet the BIA’s administrative guidelines because they have traditional tribal political institutions. The same goes for community – the term means something different in every culture.

The BIA also has expectations for how Indians should look. For example, when the Tigua were at the signing of a Texas bill in support of their recognition, their attorney ordered the Tigua men to shave their mustaches. The attorney’s reason: “I didn’t want press coverage with people with Mexican type mustaches on.”Footnote ³¹ Former Tigua governor Joe Sierra noted lawmakers “only saw an Indian” while he was dressed in “feathers like a savage.”Footnote ³²

Then there’s politics. The BIA has limited funds, and recognizing more tribes means fewer funds per tribe. Similarly, gaming has impacted incentives. Tribes with established casinos do not want a newly recognized tribe to open a casino that will increase competition for gaming revenue. As a result, federally recognized tribes have a financial incentive to oppose the recognition of other tribes. Private industry gets involved too. Businesses will actively oppose the recognition of tribesFootnote ³³ while supporting the recognition of the tribe they have partnered with.Footnote ³⁴ Private enterprises engage in the same behavior when a group seeking federal recognition has natural resources on its land because extractive industries fear federal recognition will grant tribes control over the resources, which could impact ongoing or historic business operations.Footnote ³⁵ Third parties are allowed to comment on petitions for federal acknowledgment too.Footnote ³⁶

15.4 The Coushatta Journey

The Coushatta lived in the area encompassing the present-day states of Tennessee and Alabama for hundreds of years. During his raid of North America, Hernando de Soto encountered the Coushatta in 1540Footnote ³⁷ and set the tribe on a 300-year migration.Footnote ³⁸ By the 1880s, the Coushatta had settled near Elton, Louisiana. The Coushatta worked alongside Cajuns, Blacks, and Germans in the agricultural and lumber industries for menial wages.Footnote ³⁹ Additionally, Coushatta women bartered and sold their elegant pine needle baskets to help support their families.Footnote ⁴⁰ Despite participating in the mainstream economy, most Coushatta only spoke their traditional Indigenous language, Kosati, during the early twentieth century.Footnote ⁴¹ Compared to other Indians in the southeast, the Coushatta had amicable relations with the local white community, including being allowed to attend white schools.Footnote ⁴²

Despite their migration and interactions with other cultures, the Coushatta governance system,Footnote ⁴³ language, and community always remained intact. Nonetheless, the United States did not recognize the Coushatta as an Indian tribe. While the federal government did not doubt the Coushatta’s Indian heritage or continuing culture, the federal government noted the Coushatta were able to sustain themselves without the shackles of federal supervision.Footnote ⁴⁴ However, a federal report did acknowledge the Coushatta “are desperately poor, and dire poverty is pitiable.” The federal report attributed the Coushatta’s poverty to their rural location, pointing out many non-Indians in the area were also poor.Footnote ⁴⁵ The federal government finally provided assistance to the Coushatta in 1935 when the tribe began administering a local Indian school that only went to the fourth grade.Footnote ⁴⁶ The school was poorly funded and focused on teaching the Coushatta to farm rather than the skills they needed to compete in the modern economy. Hence, Coushatta who attended the school were usually ill-equipped to transition into the local white school.Footnote ⁴⁷ The limited benefits of federal recognition were short-lived as the BIA unilaterally and unlawfully ceased providing services to the Coushatta in 1953 – the peak of the termination era.Footnote ⁴⁸ Ernest Sickey was born to rectify this wrong.

Ernest was born to Davis and Daisy Sickey. He grew up in Elton, Louisiana speaking Kosati, Choctaw, French, and English.Footnote ⁴⁹ The family was poor, and Davis was not a member of the Coushatta government. Nevertheless, he felt obligated to advocate for the tribe despite his fifth-grade education and limited English.Footnote ⁵⁰ Davis regularly met with Louisiana officials in hopes of improving life for the tribe. In fact, he named Ernest after a Louisiana senator in an attempt to curry favor.Footnote ⁵¹ Davis regularly brought his young son to meetings of the Louisiana legislature in Baton Rouge and legal conferences throughout the southeast.Footnote ⁵² During these events, Ernest analyzed not just the events but also the way people communicated with one another.Footnote ⁵³ Ernest would take his first political action as an eight-year-old boy when his father had him write a letter to a Louisiana congressman in hopes of securing aid for the Coushatta.

After graduating high school, Ernest studied broadcasting at the University of Houston for two years before joining the United States Air Force in 1962.Footnote ⁵⁴ Ernest was designated a supply specialist, so he never saw duty in Vietnam. Instead, he served his six years in Baton Rouge and Alexandria, Louisiana.Footnote ⁵⁵ Trying to figure out life after the military, he moved in with his parents. One day, Ernest and his father visited an Indian cemetery. Ernest was moved by the graves of dead babies – babies who died from poverty-related conditions.Footnote ⁵⁶ Ernest decided his path was to improve life for his tribe, and community elders asked him to help the tribe regain its federal recognition.Footnote ⁵⁷

The path, however, was far from clear. The federal acknowledgment process had not been created, and the Coushatta were located in Louisiana. As a Jim Crow state, Louisiana’s policy was people were either white or “colored” – no Indians. In fact, Louisiana placed Indians in mental institutions for speaking their Indigenous language.Footnote ⁵⁸ After all, if no Indians were in the state, claiming to speak a Native language indicated mental incapacity.Footnote ⁵⁹ Ernest knew he had to educate people about tribal sovereignty.Footnote ⁶⁰ He also knew the tribe needed money.Footnote ⁶¹

Ernest and other Coushatta decided to capitalize on stereotypes about Indians for political and economic gain. Coushatta partnered with the Boy Scouts to start an Indian Princess pageant in the 1960s.Footnote ⁶² The event succeeded at raising the Coushatta’s profile and generating donations for the tribe. Soon after, the Coushatta incorporated under Louisiana law to provide the tribe with a formal structure. The tribe then opened a store called the Trading Post.Footnote ⁶³ The Trading Post sold traditional Coushatta baskets, but it also offered token Indian items, like Plains Indian tribal headdresses, to appeal to customers. Ernest reached out to the Louisiana Tourist Commission for an endorsement, and it obliged, describing the Coushatta business as the “first Indian trading post since frontier days [operated by] perhaps the last full-blooded tribe in this state.”Footnote ⁶⁴ The Trading Post was a commercial success and raised the Coushatta’s public profile.

The Trading Post was a Coushatta community effort; however, the political pursuit of federal recognition was largely Ernest himself. He would drive to Baton Rouge and take the bus to Washington, DC in order to meet with policymakers face to face. During most of the meetings, he intentionally dressed in business suits “because that’s what white people understand.”Footnote ⁶⁵ Ernest knew garnering support would require a non-Indian benefit, so he emphasized how Coushatta federal recognition would create economic opportunities for non-Indians too.Footnote ⁶⁶ Strategically, Ernest did not carry business cards. Instead, he carried a briefcase full of four-inch Coushatta baskets. The baskets were unique and helped make Ernest memorable, but he knew non-Indians often associate Indians with baskets. Thus, the baskets helped show the Coushatta were still a real tribe. Handing out baskets to politicians also increased demand for Coushatta baskets.Footnote ⁶⁷

Ernest’s campaign earned the Coushatta many powerful friends. His efforts bore fruit when Louisiana conferred recognition on the Coushatta in 1972, marking the first time the state recognized a tribe. One year later, the Coushatta’s attorney submitted an eight-page letter to the BIA arguing the Coushatta was never lawfully terminated and, consequently, was entitled to recognition.Footnote ⁶⁸ Due to Ernest’s relationship-building efforts, the Louisiana congressional delegation actively monitored the BIA. The BIA re-recognized the Coushatta on June 27, 1973.Footnote ⁶⁹ Although the BIA would deny the Coushatta governmental authority until 1975,Footnote ⁷⁰ the Coushatta is now a fully functioning government. It continues to preserve its language and customs. Moreover, it employs more than 2,500 people – mostly non-Indians – and is one of the top-ten largest employers in Louisiana.Footnote ⁷¹

Ernest served as the Coushatta Tribe of Louisiana’s inaugural chairman and remained in that position for more than a decade. However, Ernest’s impact extended far beyond the Coushatta. Under Ernest’s leadership, the Coushatta became one of the initial members of the United Southern and Eastern Tribes, an organization that advocates for tribes in the south and eastern United States. The Inter-Tribal Council of Louisiana, formed in 1975, was a direct product of Ernest’s advocacy. Ernest also helped other tribes achieve federal recognition, including the Tunica-Biloxi Tribe of Louisiana and the Jena Band of Choctaw Indians, located in Louisiana. When Ernest passed away on May 17, 2023, he was still fighting for the federal recognition of the United Houma Nation (UHN).Footnote ⁷²

15.5 The Houma’s Ongoing Quest

The Houma first encountered Europeans when French explorer Henri de Tonti journeyed down the Mississippi River in 1686. Tonti quickly allied with the Houma, describing the tribe as “the bravest savages of the river.”Footnote ⁷³ The French would ultimately name the Houma’s territory Baton Rouge, for the red stick the tribe used to mark its border. While relations between the French and Houma were generally amicable, disease and other colonial events forced the Houma to migrate farther south.Footnote ⁷⁴ The Houma moved west into Spanish Louisiana after France’s defeat in the French and Indian War.Footnote ⁷⁵ Spain entered a treaty with the Houma,Footnote ⁷⁶ and the Houma fought with Spanish Governor of Louisiana Bernardo de Gálvez in the American Revolution,Footnote ⁷⁷ inflicting crucial defeats upon the British at Baton Rouge, Mobile, and Pensacola.Footnote ⁷⁸

After the war, the Houma went farther south to the location of the present-day city of Houma, Louisiana.Footnote ⁷⁹ Spain continued to recognize the Houma’s sovereignty. When Spain transferred Louisiana back to France, Spain required France to honor its treaties with the Houma and other tribes in the 1800 Third Treaty of San Ildefonso.Footnote ⁸⁰ Three years later, France sold Louisiana to the United States, and the Louisiana Purchase obligated the United States to honor agreements Spain had made with Indian tribes.Footnote ⁸¹ Houma leaders met twice with William C. C. Claiborne, the first American Governor of New Orleans, and Claiborne provided the Houma chiefs with coats – a conventional means of mechanism used by the United States and other colonial powers to recognize Indian tribes.Footnote ⁸² With sovereign relations affirmed, the Houma fought alongside the United States at the Battle of New Orleans.Footnote ⁸³ Notwithstanding, the United States denied the Houma’s land claim after the war, asserting, “We know of no law of the United States by which a tribe of Indians have a right to claim lands as a donation.”Footnote ⁸⁴ For the next century, the Houma would remain largely isolated in the swamps of Terrebonne and Lafourche Parishes, on Louisiana’s central Gulf Coast.Footnote ⁸⁵

The Houma were not literate, so few written records of the tribe exist during this period. However, the federal reports from the 1850s note the Houma existed in Terrebonne and Lafourche Parishes “as a mixed-blood Indian community.”Footnote ⁸⁶ Mixed-blood presented a problem in Jim Crow Louisiana, where one drop of Black blood meant a person was legally Black. Mixed ancestry resulted in the Houma constantly being questioned about their Indian ancestry and receiving the derogatory epithet “sabine,” meaning not a real Indian. Hence, Henry L. Bourgeois, the Terrebonne Parish school superintendent from 1914 to 1955, wrote of the Houma:

The Louisiana court system shared Bourgeois’ view, determining the Houma were “colored” rather than Indians.Footnote ⁸⁸ But due to the Houma’s large population and refusal to be classified as “colored,” Terrebonne and Lafourche Parishes implemented a three-way system of racial segregation: white, Black, and Indian.

But racism was not the only problem the Houma faced. Their land had oil. Oil companies were quick to take advantage of the Houma, many of whom could not speak English, during the 1930s. Houma signed documents believing they were leasing their land when in fact they were signing quitclaims.Footnote ⁸⁹ When Houma would not freely turn over their land, oil companies resorted to violence.Footnote ⁹⁰ Louisiana’s law worked against the Houma too, as the increased property value due to oil production left the Houma unable to afford the property taxes.Footnote ⁹¹ Additionally, Louisiana law forbade the children of unwed mothers from inheriting property. The Houma, who maintained a distinct community, often married under traditional Houma law rather than Louisiana law. Thus, children born from traditional Houma unions were “adulterous bastards” under Louisiana law and ineligible to inherent their father’s land.Footnote ⁹²

The federal government was not blind to the Houma’s plight; nevertheless, it refused to recognize the Houma during the 1930s. In 1931, Roy Nash of the Office of Indian Affairs (OIA), as the BIA was known prior to 1947, visited the Houma. He reported to the Commissioner of Indian Affairs: “[The Houma] are all mixed bloods. French and Indian is the characteristic cross, a mixture which in Canada is considered pretty fine. But there is a five per cent [sic] which shows unmistakable Negro Blood, and that is where all the trouble lies.”Footnote ⁹³ In addition to having mixed racial ancestry, a 1939 OIA letter indicated recognizing the Houma would have been expensive. The communication noted the OIA’s education services to the Coushatta quickly expanded into other areas; hence, funding the Houma’s education would have led to other programs and more costs.Footnote ⁹⁴ This indicated money – rather than tribal authenticity – was a pivotal factor in the OIA’s failure to recognize the Houma.

Things slowly improved for the Houma. The Houma won a federal court case ordering their admission into public schools in 1963, but the order was slowly implemented, resulting in Houma children attending poorly funded Indian schools until 1969. The federal self-determination policy and Ernest Sickey’s advocacy led the Houma to formally organize as the United Houma Nation in the 1970s. The Houma were named one of the initial four tribes on the Louisiana Intertribal Council in 1975.Footnote ⁹⁵ Four years later, the Houma entered the administrative federal acknowledgment process and would languish there until 1994.

In 1994, the BIA decided against recognizing the Houma, contending the Houma failed to meet three of the mandatory criteria. The BIA claimed the Houma were not a tribe prior to 1830 but were a tribe from 1830 to 1880. Following 1880, the BIA asserted the Houma divided into six or more tribes. Consequently, the BIA determined the Houma did not constitute a distinct community and was not united under a common political body. While the BIA did conclude the “Indian ancestry can be verified for the petitioner without doubt or question,” the BIA asserted the Houma were not “Houma.”Footnote ⁹⁶ The Houma unsuccessfully challenged the BIA’s finding in federal court. As a result, the Houma remain without federal recognition.

The BIA’s finding has been subjected to significant criticism. First of all, the BIA’s denial that the contemporary Houma are heirs of the historic Houma tribe is odd. The Houma have been identified as Houma by outside authorities and other tribes for well over a century. Even the BIA noted the Houma remain on Louisiana’s Gulf Coast in a 1966 report.Footnote ⁹⁷ Nevertheless, the BIA asserted the legendary anthropologist John Swanton gave the Houma its name in the early 1900s. The BIA went so far as to claim the Houma may have been named for the city of Houma rather than the city of Houma being named for the tribe located in the area for years before the city was established. Notably, the city of Houma itself states the Houma tribe is the city’s namesake. While leading anthropologists such as John Swanton recognized the Houma they visited in the early and mid 1900s as heirs of the Houma of old, the BIA simply brushed off their claims as “unfounded assumptions.”Footnote ⁹⁸ Significantly, Swanton’s work was essential to the federal recognition of multiple southeastern tribes.Footnote ⁹⁹ The BIA has only questioned the veracity of Swanton’s research about the Houma.Footnote ¹⁰⁰

The BIA’s contention that the Houma were not a distinct community is also peculiar. BIA reports from the 1850s and 1930s specifically describe the Houma as an “Indian community.”Footnote ¹⁰¹ This was the only plausible conclusion to reach as the Houma lived in isolated parts of the swamp with no paved roads until the 1950s.Footnote ¹⁰² Furthermore, the Houma suffered racial discrimination and were legally restricted to Indian areas in public places. The segregation mandate lasted through the early 1970s. Segregation meant the Houma legally had to be a distinct community.Footnote ¹⁰³ The BIA admitted, “Discrimination on a racial basis can, in fact, be strong evidence for the existence of distinct community.”Footnote ¹⁰⁴ Nonetheless, the BIA believed the Houma were not a distinct community.

The BIA’s conclusion that the Houma lacked a political authority may be right; however, it ignores the way Indigenous societies operated. Indeed, one of the earliest written accounts of the Houma states, “The [Houma] chiefs are no more masters of their people than are the chiefs of the other nations in the direction of Canada. I have only noticed among them more civility.”Footnote ¹⁰⁵ Hence, the Houma leaders not exercising strong political influence over the Houma citizenry should help prove the Houma of today descended from the Houma of old. Lack of strong political bodies was not unique to the Houma. Among many – perhaps most – Indian tribes, political leadership was situational. That is, leaders were appointed based on the needs of the community. This means the BIA judged the Houma government from a western lens rather than the Indigenous perspective the Houma itself applied.

Several other errors exist in the BIA’s finding. Two are illustrative. One is the BIA said the Houma do not have a treaty with the United States, but the 1977 American Indian Policy Review Commission determined the Houma do have a treaty with the United States.Footnote ¹⁰⁶ The United States has never abrogated the Houma’s treaty rights vested in the Louisiana Purchase; thus, the United States is still legally bound by the treaty – even if the federal government ignores it.Footnote ¹⁰⁷ Thus, by denying the UHN federal recognition, the United States is violating a treaty – the supreme law of the land. Notably, France continues to recognize its treaty with the Houma. It held a 317-year anniversary of its alliance with the Houma in 2016.

The other legally significant error is the BIA’s assessment of the Houma language. The BIA reasonably assumed the Houma, located in south Louisiana, spoke Cajun French, but recent linguistic studies have shown the Houma spoke a different version of French than their Cajun neighbors. Houma French is actually two generations older than Cajun French because the Houma learned French from the French explorers, not the Cajuns. The Houma French also contains some of the original Houma words and is spoken with a cadence similar to other Muskogean languages.Footnote ¹⁰⁸ Language should be decisive proof of the Houma’s authenticity. After all, there is no other explanation for the Houma speaking the French dialect of Paris circa 1700 than the Houma learned it from French explorers circa 1700.Footnote ¹⁰⁹

Perhaps the BIA’s conclusions can be explained by third-party influence, particularly the oil industry. The Houma’s south Louisiana lands were rich in oil and exploited by oil companies during the first half of the twentieth century. During the 1930s, anthropologist Frank Speck opined oil companies opposed Houma federal recognition because federal recognition would give Houma rights over their land and the oil beneath it.Footnote ¹¹⁰ Oil companies petitioned the BIA and performed research to undermine the Houma’s attempt to navigate the federal acknowledgment process. Professor Mark Edwin Miller, a premier authority on tribal federal recognition, explained “tribal acknowledgement would give the Houmas standing in court to press claims under federal Indian laws.”Footnote ¹¹¹ This was on full display in 2010 during the BP oil spill.

The Houma were devastated by oil from BP. Furthermore, the chemicals BP used to clean up the spill may have been more poisonous than the oil. In addition to the immense environmental damage, the BP spill devastated the Houma economically. Lack of educational opportunities led many Houma to pursue careers in the oil and seafood industries. BP shut both down; consequently, numerous Houma families were out of work. The spill also meant Houma families could not supplement their diets by fishing or hunting as oil and other toxins ruined wild game. Given the hardship the spill caused the Houma people, the UHN filed a claim in hopes of receiving compensation but was rejected by BP. BP explained:

An investigation into the BP spill by the National Association for the Advancement of Colored People found “[t]he oil industry lobby is blocking [the Houma’s] request because they want access to lands that would be protected under the federal designation.”Footnote ¹¹³

But powerlessness against oil companies is only one issue. Without federal recognition, the UHN is not a “real” government in the eyes of the federal government. Therefore, the UHN has no consultation rights, which makes it easy to exclude Houma communities from important projects such as levies. Likewise, the Houma are not eligible for direct federal assistance when the tribe is struck by hurricanes including Katrina, Rita, and Ida. The Houma are not eligible for most federal programs designed to foster tribal citizen health and educational attainment. And without federal recognition, it becomes increasingly hard for the UHN to preserve its way of life. After all, hurricanes and coastal erosion are forcing families to relocate, which will cause the tribal community to disperse.

✦✦✦

The Houma are a particularly egregious example of the United States’ failure to recognize Indian tribes. However, other legitimate tribes have been denied recognition. Failure to recognize a legitimate Indian tribe is the apex of colonization – denying the existence of a people. Denying a tribe recognition prevents it from functioning as a government.

Tribes need greater territorial integrity to function as nations. This requires transferring federal control over trust land to the tribes themselves and recognizing tribal law as the primary force in Indian country. Until tribes are able to determine the property regimes in their territory and enforce their laws against all people in their territory, tribes will remain “domestic dependent nations.”

16.1 Sovereignty and Land

Control over the land within their territories is vital to tribes’ being able to operate as governments. Although tribes have exercised limited dominion over their land for the past two centuries, tribes exercised complete sovereignty over their land for most of history. Myriad Indigenous property regimes are discussed in Chapter 1, and tribes retained sovereignty over lands long after European arrival. As Justice Douglas wrote:

Tribes’ willingness to fight and die for their land forced the United States to enter treaties. By acquiring tribal lands through treaties, the United States recognized tribal sovereignty. After all, it would be nonsensical to buy land directly from tribes if the United States did not believe tribes possessed rights to it.Footnote ² The United States continued to negotiate with tribes and purchase their lands even after the United States abandoned treaty making with tribes.Footnote ³

The United States continued purchasing land from tribes because tribes retained sovereignty over their land. Undoubtedly, tribes suffered blows to their authority, but tribes’ ability to govern their land has always been recognized. For example, Johnson v. M’Intosh acknowledged:

Thus, the Court in Johnson stated, “It has never been contended, that the Indian title amounted to nothing.”Footnote ⁵ A decade later, the Court elaborated on the value of Indian title explaining it is “considered as sacred as the fee simple of the whites.”Footnote ⁶ The Supreme Court has consistently confirmed the sacredness of Indian title,Footnote ⁷ as well as tribal authority over the resources on their land.Footnote ⁸ Accordingly, there is an established basis for tribal sovereignty over land and resources under existing law.

Actualizing tribal sovereignty requires revising Indian country’s land tenure rules. Trust land is a prime place to start. Trust land is exceedingly difficult to use because of the federal bureaucracy encumbering it. Trust land’s inalienability makes it challenging to use as collateral. Moreover, the federal strings attached to trust land are premised on the idea Indians are incompetent.Footnote ⁹ There is little dispute on these points; nevertheless, tribes are generally leery of abandoning trust land. Their reluctance is largely based on past experiences – allotment and termination. Tribes lost millions of acres of land to these federal policies, and the land loss has severely diminished tribal sovereignty. Accordingly, calls to end trust land are often interpreted as a move toward eliminating tribal sovereignty.

The debate over trust land usually revolves around whether trust land should be abolished in favor of privatization. But this largely misses the mark. Trust land and tribal sovereignty are different things.

16.2 Replacing Trust Land with Tribal Land

Trust land is often blamed for reservation poverty. Private, fee simple land ownership is widely considered the premier status for economic development,Footnote ¹⁰ but private land ownership is not necessary for a robust free market economy. Hong Kong is illustrative. The island state is ranked third in the World Bank’s ease of doing business indexFootnote ¹¹ and is consistently held out as the exemplar of laissez-faire. But with few exceptions, land is not privately owned in Hong Kong.Footnote ¹² Instead, the central government owns the lion’s share of the land, and people lease it from the government.Footnote ¹³ Registering property in Hong Kong usually takes less than a month,Footnote ¹⁴ which is slightly longer than the United States’ average.Footnote ¹⁵

While this discussion simplifies Hong Kong’s property system, the lack of private ownership and use of leases is not so different from trust land. What is vastly different between trust land and the Hong Kong real estate market is the ease of using property. One can access land simply and efficiently in Hong Kong. Hence, businesses can effortlessly operate in Hong Kong. Not so in Indian country. This suggests the problem with trust land is not primarily federal ownership; rather, this indicates inefficient federal management is the main problem with trust land.

The Helping Expedite and Advance Responsible Tribal Home Ownership Act (HEARTH) underscores this point. The HEARTH Act does not alter the status of trust land. The Act simply lets tribes process land leases in lieu of the BIA.Footnote ¹⁶ Despite this reform being minor – title to trust land remains with the federal government and tribes have to follow federal leasing rules – tribes that have adopted the Act have seen significant benefits. At the Ho-Chunk Nation, lease approval time dropped from eighteen months to about one month after adopting the Act.Footnote ¹⁷ This makes it much easier to obtain a home loan or start a business on trust land.Footnote ¹⁸ By making it easier to use trust land, tribal economies will improve.Footnote ¹⁹ None of this is to say trust land is ideal, but it is to emphasize the major issue is accessing trust land. If people can lease and engage in other activities within a reasonable time, trust land will not hamstring tribal economies.

The HEARTH Act suggests tribes should have greater control over the administration of their land. This is essential for tribes to be able to function as governments. The federal government does not impose land ownership regimes on states, and the federal government should not dictate tribal property rights regimes either. The same goes for other resources on tribal land. If the federal government does not regulate an activity on state land, the presumption should be the feds do not need to regulate the activity on tribal land. This would leave tribes subject to generally applicable federal laws governing land and natural resources, though there may be reasons why the federal law should not bind tribes in some cases, such as when a federal law interferes with a tribal treaty right.

While this may seem radical, tribes have displaced the federal government in many roles through self-governance contracts, and the existing evidence indicates tribes consistently outperform the federal government at managing tribal resources. For example, waters on the Fort Peck Reservation, located in northeastern Montana along the Canadian border, were being degraded by erosion resulting from livestock grazing. The federal government was using a chemical assessment to measure reservation water quality, which does not always identify impacts on plant and animal life. Accordingly, the Fort Peck Tribes implemented the Clean Water Act’s “tribes as states” provision. Under this authority, the tribes have assumed management of the reservation’s waters and have added biological criteria to water quality management. Through the use of biological criteria, the Environmental Protection Agency notes the tribes have “identified and addressed specific environmental problems within the reservation.”Footnote ²⁰ Other tribes have achieved similar successes under the Clean Water Act and other programs allowing tribes greater sovereignty.Footnote ²¹ The reason is simple: Tribal leaders are accountable to tribal citizens for their performance whereas distant, federal bureaucrats are not. Thus, tribes have a much stronger incentive to execute their duty.

With the ability to design their own property regimes, a diverse array of tribal land and resource frameworks can be expected. Some tribes may wish to do away with trust land and create land regimes predicated on private property rights. Other tribes may prefer a land system wherein the tribal government holds title to the land, similar to the current trust regime. Indeed, the HEARTH Act shows economic development and capital access can occur on efficiently managed leased land. Alternatively, some tribes may have no desire to make their land easier to develop or may devise differing land tenure systems for particular portions of their land. Then a tribe may devise a completely new land management system. The freedom to decide tribal property regimes must belong to the tribes themselves because each of the 574 federally recognized tribes is a separate sovereign. Each tribe has its own unique history, culture, goals, location, land base, and natural resource endowments. A one-size-fits-all, federally mandated, property ownership structure makes little sense. Each tribe is in the best position to make the decision for itself, so tribes should be empowered to make their own rules.

Though each tribe must decide for itself whether it wants trust land, land reform should not be foisted upon tribes overnight. After 200 plus years of federal interference with tribal land, law, and economies, a transition period is warranted. Tribes will need to deliberate and decide on which land tenure rules are ideal for their circumstances. Some tribes may be ready and eager to seize control of their land right away; in fact, several already have through the HEARTH Act. Once a tribe is ready to establish its own land tenure systems, the federal government should provide it with the resources to implement the rules it has developed. Federal support for tribal land tenure reform does not have to increase the federal budget. Rather, the United States can allocate the funds it is currently using to administer trust land and other BIA programs directly to the tribes.

A famous study on the impact of tribal self-determination illustrates this point. Due to the federal government’s tribal self-determination policy, the federal government can transfer the funds it would use to perform an activity on a reservation directly to the tribe, thereby allowing the tribe to use those funds to administer the activity itself. Dr. Mathew Krepps chose to test whether tribes were more effective at managing forests than the BIA. He examined the forests of seventy-five tribes. Controlling for differences in the tribal forests, Dr. Krepps found tribally managed forests have outputs up to 40 percent greater than forests managed by the BIA. Dr. Krepps’ also concluded tribes obtain higher prices for their timber than the BIA. According to Dr. Krepps, “What is suggested is that all tribes, regardless of wealth or experience, enjoy a decided motivational advantage over BIA foresters who are paid flat salaries regardless of how well they manage Indian forests.”Footnote ²²

Enabling tribes to create their own land tenure systems is consistent with the United States’ professed tribal self-determination policy. It is also in accord with the United States Constitution and hundreds of treaties guaranteeing tribes’ existence as sovereigns.Footnote ²³ Furthermore, transferring from trust land to tribal governance of tribal lands adds no cost to the federal budget. No one is harmed by granting tribes control over trust land either, because the tribe is merely displacing the federal government as the land’s sovereign. And by all accounts, the federal government has been abysmal at managing trust land. Plus, if tribes do not like the results their newly crafted rules are producing, tribes have the power to implement reforms – a feature tribes lack under the current trust land system.

The most significant obstacle to trust land reform is that it will almost certainly require an act of Congress. Altering more than 200 years of federal Indian law and policy is a major action. Notwithstanding, there are reasons to believe congressional action is possible. First of all, Congress enacted the HEARTH Act approximately ten years ago, and the Act is universally considered a success. Congress has considered expansions of the reforms set forth in the HEARTH Act too.Footnote ²⁴ Hence, trust land reform is on Congress’ radar. And as noted, the reform is cost-neutral and will likely lead to improved tribal economies, which will make tribes less dependent upon federal funds. The legislation also only directly impacts tribes and the United States. Individual states currently lack regulatory authority over trust land, so states are not impacted by the trust reform.Footnote ²⁵ Moreover, trust land is predicated on outmoded beliefs about Indian incompetency, and Congress has recently enacted legislation repealing several antiquated laws relating to Indians.Footnote ²⁶ Although congressional action is difficult to assume, legislation is plausible. Given the widely recognized issues with trust land and the lack of reasons for not providing tribes greater control over their land, legislation reforming trust land is a realistic hope.

16.3 Tribal Land and Jurisdiction

Tribes’ desire to preserve trust land is largely linked to court decisions tying trust land to tribal jurisdiction and fee simple land to state jurisdiction. For example, in 2008, the Supreme Court held in Plains Commerce Bank v. Long Family Land & Cattle CompanyFootnote ²⁷ that tribes had lost the ability to govern sales of fee land located within their reservations to non-Indians even if the non-Indian entered a consensual relationship with the tribe and its citizens. The Court proclaimed, “Our cases have made clear that once tribal land is converted into fee simple, the tribe loses plenary jurisdiction over it.”Footnote ²⁸ The Court further averred, “[E]fforts by a tribe to regulate nonmembers, especially on non-Indian fee land, are ‘presumptively invalid.’”Footnote ²⁹ Likewise, the Supreme Court has held tribes cannot levy taxes on fee lands located within the boundaries of their reservations.Footnote ³⁰ Tribal jurisdiction over fee lands has been diminished in numerous other situations.Footnote ³¹ Additionally, trust land is exempt from state taxation whereas states can tax fee lands within a reservation – even when the fee lands are owned by an individual Indian or the tribe.Footnote ³² The Supreme Court justifies diminishing tribal jurisdiction over fee lands on the theory that “[f]ee land owned by nonmembers has already been removed from the tribe’s immediate control.”Footnote ³³ As a result, fee simple land – particularly when owned by a noncitizen of the tribe – reduces tribal sovereignty and trust land preserves it.

The trouble is ownership and jurisdiction are terms with entirely different definitions. Ownership is the legal right to use, possess, transfer, and dispose of a thing.Footnote ³⁴ Property owners can exclude others from using their property; however, the extent of an individual’s property rights is determined by a government. For example, water law is very nuanced, but generally speaking, water law is governed by the state. Thus, individuals’ property rights in the stream crossing their property vary from state to state. Eastern states typically follow the riparian doctrine wherein property owners can make “reasonable use” of waterbodies abutting their property provided the use does not infringe upon the rights of other riparian rights owners.Footnote ³⁵ Contrarily, western states allocate property rights in water based on the doctrine of prior appropriation, which grants the senior water user priority over junior users in the event of a water shortage, hence the moniker “first in time, first in right.”Footnote ³⁶ The citizenship of the owner of the water right does not matter. The property owner’s water rights are determined by the state where the water is located.

While property law governs the relationship between individuals and things, jurisdiction determines the relationship between an individual and a government. Jurisdiction is a sovereign’s ability to exercise power and often has a territorial element, meaning within set boundaries the government has jurisdiction. If a sovereign’s rules are violated within its borders, the sovereign has authority to punish the transgressor. No individual has to be harmed. All that needs to occur is a rule violation. This was on full display when Women’s National Basketball Association star Brittney Griner was convicted of bringing less than a gram of hash oil into Russia. Griner was almost certainly the only person to come into contact with the infinitesimal amount of oil she possessed, and no one was injured because of her consumption of the oil. Nevertheless, she broke Russian law within the boundaries of Russia, so Russia had jurisdiction to prosecute and sentence her to nine years in jail.Footnote ³⁷

Despite widespread international outrage over Griner’s conviction, the world respected Russia’s right to prosecute Griner. By entering the sovereign territory of Russia, she subjected herself to Russian jurisdiction, and jurisdiction is a key ingredient of sovereignty. Jurisdiction is what differentiates sovereigns from corporations and social clubs. Individuals can own property, but private persons cannot exercise jurisdiction. Though governments can own property within their borders and beyond, property ownership is not the essence of government, at least in free market economies. Instead, asserting jurisdiction is the hallmark of sovereignty. Jurisdiction is what invigorates the rules crafted by sovereigns.

To help illustrate the difference between property ownership and jurisdiction, assume Jill is a United States citizen who goes on vacation in France. Jill attends a party at a Parisian home. The home is owned by Karl, a German. At the party, things get rowdy, and Jill punches Don, an Italian. Which cops are called? The French. France is a sovereign, so it has jurisdiction over those who violate French law within the borders of France. It does not matter that none of the individuals involved were French. It makes no difference that the crime occurred on property owned by a German. Governments exercise jurisdiction over the persons and property within their borders. As the property’s owner, Karl can prevent the unruly partygoers from returning to his home, but he cannot put them in jail. Incarceration is a sovereign function. Failure to distinguish between property ownership and jurisdiction in Indian country stems from a failure to view tribes as bona fide governments. Making trust status, or even tribal ownership, a requirement for tribal jurisdiction essentially demotes tribes from governments to landowners’ associations, a group of property owners.

Territorial jurisdiction is vital if tribes are to operate as governments. Nowhere else in the United States does jurisdiction hinge upon the citizenship of the landowner. Moreover, Congress has explicitly included non-Indian fee lands in the statutory definition of “Indian country”: “all land within the limits of any Indian reservation under the jurisdiction of the United States Government, notwithstanding the issuance of any patent ….”Footnote ³⁸ Congress treats non-Indian lands within reservations as Indian country in numerous other statutes.Footnote ³⁹ The Supreme Court recognized as much in 2020 when it stated “there is no reason” why tribes cannot “continue to exercise governmental functions over land even if they no longer own it communally.”Footnote ⁴⁰ This makes sense. Tribes are governments, and governmental authority does not depend upon a property owner’s identity.

Disconnecting land ownership from tribal jurisdiction is a key step in treating tribes as nations. Restricting tribal jurisdiction to lands held in trust or owned by Indians creates a highly impractical governance structure. Although the Supreme Court is responsible for entangling tribal jurisdiction with land ownership, the Court has admitted tying jurisdiction to landownership “would produce almost surreal administrative problems.”Footnote ⁴¹ The impracticality of basing jurisdiction on landownership is likely why Congress included fee simple lands in the definition of Indian country.Footnote ⁴² Thus, Indian country governance can be greatly simplified by treating tribes as nations and honoring their right to assert jurisdiction over all person and activities within their borders.

16.4 Jurisdiction over Noncitizens

While tribal jurisdiction is currently at its apex on trust land, the Supreme Court has increasingly moved toward restricting tribal jurisdiction over non-Indians on trust lands. Tribal jurisdiction over non-Indians on reservations was presumptively valid until the Supreme Court’s 1978 decision in Oliphant v. Suquamish Indian Tribe.Footnote ⁴³ Three years later, Oliphant was largely extended to non-Indians on non-Indian-owned fee lands in Montana v. United States.Footnote ⁴⁴ Montana expressly recognized tribal jurisdiction over non-Indians on fee lands who enter a consensual relationship with the tribe or its citizens. However, the Supreme Court has since tightened the Montana’s consent requirement, asserting, “Even then, the regulation must stem from the tribe’s inherent sovereign authority to set conditions on entry, preserve tribal self-government, or control internal relations.”Footnote ⁴⁵

Following Oliphant, the Supreme Court has attempted to rationalize the restrictions on tribal jurisdiction based upon political participation. Tribal governments exist independently of the United States Constitution. Pursuant to federal law, tribal citizenship is essentially limited to individuals of Indian ancestry.Footnote ⁴⁶ Consequently, tribal governments are different than other United States governments, which are bound by the Constitution and have no ancestry requirement for citizenship. Courts and Congress have increasingly countenanced the constraints on tribal jurisdiction on these two points.

This argument has come to be known as the democratic deficit theory. Justice Stevens made this argument in a 1982 dissent opining:

The democratic argument carried the day in Duro v. Reina, which limited a tribe’s criminal jurisdiction to the tribe’s own citizens, because the “[p]etitioner [was] not a member of the Pima-Maricopa Tribe, and [was] not now eligible to become one. Neither he nor other members of his Tribe may vote, hold office, or serve on a jury under Pima-Maricopa authority.”Footnote ⁴⁸ Although Congress legislatively overruled Duro, Justice Kennedy expressed qualms about tribes prosecuting citizens of other tribes. Justice Kennedy emphasized tribes are not bound by the United States Constitution and Indians cannot participate in the governments of tribes they are not citizens of.Footnote ⁴⁹ For this reason, the Supreme Court has surmised, “[T]ribes generally have no interest in regulating the conduct of nonmembers …”Footnote ⁵⁰

Congress has expressed similar sentiments. During Justice Breyer’s 1994 confirmation hearing, Senator Pressler of South Dakota asked:

This argument also appeared during the debate surrounding the Violence Against Women Act’s provisions authorizing tribal jurisdiction over non-Indians.Footnote ⁵²

The democratic deficit argument is peculiar to Indian tribes. Just think if it applied to other governments. Kansas could not arrest the Texans within its borders because Texas citizens do not vote in Kansas elections, and the United States could not prosecute the foreign citizens on its soil.Footnote ⁵³ Likewise, governments would not be able to hear tort or commercial disputes involving noncitizens. This, of course, would be absurd. Neither states nor the federal government could function under such system. Hence, they do not. States and the United States exercise jurisdiction over all persons within their borders because this is what sovereigns do. The democratic deficit argument is particularly ironic considering Indians continue to face state-imposed barriers to exercising their right to vote in state and federal elections.Footnote ⁵⁴

Furthermore, tribes’ status as extraconstitutional governments does not mean individuals have fewer rights in Indian country than outside of it. All tribes are bound by the Indian Civil Rights Act, which is analogous to the Bill of Rights, and some tribes provide parties with stronger due process protections than non-Indian governments. Plus, states and the federal government disregard the Constitution all the time. Numerous exceptions have been crafted by courts to justify law enforcement acting contrary to the Fourth Amendment’s warrant requirement.Footnote ⁵⁵ State prosecutors withhold evidence favorable to defendants, and this subverts the defendant’s constitutional right to a fair trial.Footnote ⁵⁶ States also underfund public defenders which deprives indigent persons of their constitutional right to an attorney.Footnote ⁵⁷ State and federal prosecutors have also been shown to disproportionately target minorities, a potential violation of the Constitution’s Equal Protection Clause.Footnote ⁵⁸ Other examples of constitutional malfeasance exist.Footnote ⁵⁹ The Supreme Court has even affirmed the extradition of American citizens to foreign tribunals that do not offer criminal procedural safeguards in line with the United States Constitution.Footnote ⁶⁰ This is not to say constitutional rights do not matter. It is to point out the different standard tribal governments are held to.

16.5 Why Tribes Should Have Criminal Jurisdiction over Non-Indians

Tribes are governments, and the first function of any government is the protection of its citizens. The possibility that a tribal court may be unfair to a non-Indian is not a valid reason to prevent every tribe from prosecuting non-Indians. Although a tribal court may occasionally err (as state and federal courts do),Footnote ⁶¹ tribes have no incentive to wrongfully convict non-Indians. To begin with, tribes usually have limited budgets, and tribal dockets often face significant backlogs. A criminal case drains judicial resources. The cost of the criminal trial is worth it if an actual criminal is removed from the community, but the tribe derives zero benefit from prosecuting innocent non-Indians, or other innocent persons for the matter. If the tribe convicts someone, incarceration is a likely next step. Placing a criminal behind bars costs most tribes about $100 per day, which would amount to a nice income on many reservations.Footnote ⁶² These costs can be far higher if an inmate has medical issues. For example, the Eastern Band of Cherokee Indians spent more than $60,000 on healthcare for a non-Indian the tribe prosecuted under VAWA.Footnote ⁶³ Given tribes’ scarce resources, it is safe to assume tribal governments would rather spend their money on things besides wrongfully incarcerating non-Indians.

In addition to budgetary concerns, Congress’ purported plenary power is another incentive for tribes to treat non-Indian defendants fairly. Tribal sovereignty, though it predates the formation of the United States, now exists at the whim of Congress. Throughout the years, Congress has wielded its power to diminish tribal sovereignty. Tribes know one foul move by any one of the 574 federally recognized tribes would likely lead to severe consequences for all of Indian country. This is a formidable incentive for tribal courts to treat non-Indians fairly. Between budgetary constraints and the plenary power doctrine, concerns of tribal courts targeting non-Indians for convictions seem overstated.

Additionally, tribes’ lack of jurisdiction over non-Indians is colonialism. During the 1800s, citizens of the United States and European colonial powers were exempt from local laws in their Asian colonies.Footnote ⁶⁴ In lieu of local jurisdiction, the colonial powers vowed to punish crimes committed by their citizens. This immunity from local law is known as extraterritoriality.Footnote ⁶⁵ The American envoy to China claimed extraterritorial jurisdiction was necessary because of “the superior civilization and respect for individual rights consequent thereon, which prevail in Christendom.”Footnote ⁶⁶ Accordingly, Asian tribunals were deemed unworthy of prosecuting citizens of the “culturally superior” western nations. In theory, this could have worked as the United States and European nations could have diligently pursued their citizens who harmed the Indigenous inhabitants of China, India, and other countries. But in reality, the West did not.

Although the West claimed extraterritoriality was needed because Asian justice systems were too brutish and inept, extraterritoriality led to the rampant abuse of local populations. American and European immunity from local jurisdiction made it nearly impossible for Asian nations to maintain law and order because the Asian countries lacked jurisdiction over western criminals.Footnote ⁶⁷ Hence, extraterritoriality “allowed foreigners to get away with murder.”Footnote ⁶⁸ For example, in 1860, British citizen Michael Moss shot a Japanese official who was attempting to arrest him for discharging a firearm too close to the shogun’s castle. The British prosecuted and convicted Moss – who was indisputably guilty. However, Moss’ conviction was quickly overturned, and he was awarded $2,000 for wrongful imprisonment.Footnote ⁶⁹ In colonial India, Bal Gangadhar Tilak mocked Britain’s claim of judicial superiority, declaring, “The Goddess of British Justice, though blind, is able to distinguish unmistakably black from white.”Footnote ⁷⁰ Many westerners believed extraterritoriality was morally and legally wrong; in fact, western exemptions from local laws were likened to the United States’ tolerance of slavery.Footnote ⁷¹ Nevertheless, westerners clung to extraterritoriality until the end of World War II, when imperialism was no longer acceptable to the world order.Footnote ⁷²

Extraterritoriality remains the law in Indian country. Reservations’ experience with extraterritoriality is reminiscent of the experience of Asian nations 200 years ago – outsiders enter a territory and are largely free to pillage the Indigenous inhabitants at their whim. More curiously, extraterritoriality did not become the law in Indian country until Oliphant v. Suquamish Indian Tribe in 1978, three decades after the world rejected the practice and everything it represented.

Oliphant is colonialism writ large. It stands for the proposition that tribal justice systems are good enough for Indians but inadequate for non-Indians. Oliphant places a lower value on Indian lives than non-Indian lives. Indeed, Oliphant incentivizes non-Indians to target Indian victims by shielding perpetrators from the government most responsive to Indian victims. Oliphant is at odds with the proposition of equality before the law. And until Oliphant falls, the United States will remain the last bastion of the repudiated imperial doctrine of extraterritoriality.

Once tribal criminal jurisdiction over non-Indians is recognized, tribal civil jurisdiction over non-Indians will naturally follow. After all, if tribes can put non-Indian criminals in jail, tribes should logically be able to hold non-Indians liable for tort, breach of contract claims, and tax obligations. Certainly, tribal incentives are different in these matters than in the criminal context. Criminal prosecutions drain tribal resources and provide no benefit to the community unless the wrongdoer is convicted. Civil cases are different because they can result in the redistribution of wealth. Thus, a tribal court ruling in favor of an Indian against non-Indian may take money out of non-Indian pockets and places it in Indian hands. This incentive does exist, but it is shortsighted. A single, rogue tribal court decision undermines the tribe’s institutional credibility and will result in less economic activity on the tribe’s land. A dubious tribal court decision also has adverse reputational effects for tribal courts in general. Hence, bad judicial behavior is detrimental to tribal economies and sovereignty, so tribal courts have an incentive to be fair.

✦✦✦

Tribes must be able to control their land and the people upon it if they are to operate as governments. The constraints on tribal land and jurisdiction are based upon outmoded ideals about Indigenous Peoples. Moreover, the available evidence shows tribes are better at governing their territories than the United States. Respecting tribes’ right to govern their land free from outside interference will drastically simplify Indian country’s legal regime and empower tribal law.

Territorial jurisdiction will require tribes to promulgate and enforce rules. Every tribe has laws; however, tribal codes are not always well developed. This is partially due to the limits on tribal jurisdiction (discussed in Chapter 16) as tribes have better things to do, such as operate schools and health clinics, than design and debate legislation approximately 99 percent of the US population is largely exempt from. Consequently, many tribal codes have not been revised in recent years and existing tribal laws may be difficult to locate. As a result, many non-Indians view tribal law as a mystery.

Lack of knowledge about tribal law is compounded by the fear of tribal courts. People often presume tribal courts are biased, always ruling in favor of Indians against non-Indians. This fear helped strip tribes of their jurisdiction over non-Indians. In an opinion ruling against tribal jurisdiction over non-Indians, Justice Souter opined that “tribal courts differ from traditional American courts in a number of significant respects.”Footnote ¹ Justice Souter elaborated, “[T]ribal law is still frequently unwritten, being based instead ‘on the values, mores, and norms of a tribe and expressed in its customs, traditions, and practices ….’”Footnote ² Other federal courts have gone further, describing tribal courts as “kangaroo court[s]”Footnote ³ and as “a national embarrassment.”Footnote ⁴ But tribal courts and law get far more bad press than they deserve.

17.1 Tribal Law

Law is the body of rules regulating a group of people. When the law is violated, the government can impose consequences. Sources of law vary. Some are promulgated by legislatures, some by popular vote, and others crafted by judges. Laws reflect community values, so laws vary from nation to nation. In fact, laws can vary significantly between portions of a nation, like individual states in the United States. Despite the variance, there are universal norms across the globe. For example, murder is illegal in every nation. Of course, there are deviations on what counts as murder – such as self-defense and abortion – but the general principle stands: The intentional killing of a human being is prohibited wherever one may journey. Tribal law is no different.

Though all tribes are bound by the Indian Civil Rights Act, each of the 574 federally recognized tribes has its own laws. Tribal law reflects a tribe’s values, and nearly every tribe actively incorporates its customs into laws. Importing ancient tribal customs into the twenty-first century may seem anachronistic, but it is not. Rather, applying customs and traditions in the courtroom is commonplace in the United States. For example, the United States Constitution is more than 200 years old and still serves as the United States’ primary governing document. Furthermore, one of the leading schools of constitutional interpretation is originalism – seeking to apply the intent of the Constitution’s drafters to the modern world. Even those who do not ascribe to originalism often resort to practices in the American colonies, and even old England, to discern a law’s meaning. This is a logical step in the United States’ common law process, whereby past judicial decisions serve as the foundation for future jurisprudence. Traditional tribal law is no different in this regard. Thus, former Navajo Nation Supreme Court Justice Tom Tso wrote, “Customary law will sound less strange if I tell you it is also called ‘common law.’”Footnote ⁵

Like the United States, tribes adapt their laws to fit the modern world. The Ho-Chunk Nation Trial Court explained, “Although the tribe would not have traditionally dealt in terms of currency, the sanctity and attendant responsibilities of an agreement were recognized as self-evident.”Footnote ⁶ The Ho-Chunk court further explained:

That is, the Ho-Chunk may not have traditionally used American dollars to engage in commerce, but the animating principle of honoring one’s word carries into the twenty-first century.

Indians have the same basic needs and desires as other people, so tribes frequently adopt the laws of the surrounding state. Moreover, a matter may cross over the reservation–state border. Having similar laws minimizes friction in transborder disputes because the law is the same in either jurisdiction. Adopting the same laws as the surrounding state also makes it easier for parties to find lawyers in tribal disputes. Additionally, tribal law is often viewed with greater legitimacy when it parallels western law, such as procedural safeguards tribes must abide by to prosecute non-Indians under the Violence Against Women Act. Thus, the Confederated Tribes of the Grand Ronde passed an ordinance adopting the Oregon Commercial Code and contract law.Footnote ⁸ Nonetheless, tribal councils do not always legislatively adopt state law, so tribal judges often incorporate state law through jurisprudence. For example, the Hopi Court of Appeals adopted Arizona’s definition of tortious interference with contractual relations because no tribal law was promulgated for the tort and “the tort is not inconsistent with Hopi law or Hopi notions of fairness and justice.”Footnote ⁹

Although tribal law is often consistent with general United States laws, there can be significant differences as a result of distinct values. Two examples from the Navajo Nation are illustrative. In the United States, a person’s domicile is based upon the person’s physical presence plus an intention to remain there indefinitely. However, the Navajo Nation Supreme Court viewed domicile differently declaring:

The Navajo Nation can also diverge from mainstream Anglo law in the statute of limitations. Statutes of limitations are the time period when a legal claim can be filed. Once the statute of limitations expires, the plaintiff may no longer bring the claim – regardless of its merits. The purpose of statutes of limitations is to provide individuals with finality rather than having to live with the chronic fear they may be sued for something they did long ago. Statutes of limitations also facilitate judicial efficiency by preventing the courts from being clogged with antiquated claims.Footnote ¹¹ The Navajo Nation Supreme Court eschewed the statute of limitations in Ben v. Burbank.Footnote ¹²

The case arose when Lucy Ben refused to pay Tom Burbank for construction work. Burbank filed suit to collect the debt more than four years after the contract was breached. Ben did not contest the validity of Burbank’s claim. Instead, Ben argued whether she paid Burbank was irrelevant because the statute of limitations had lapsed. The Navajo Nation district denied her claim. Ben appealed to the Navajo Nation Supreme Court alleging the trial court applied the wrong statute of limitations and the outcome was fundamentally unfair to her.

The Navajo Nation Supreme Court rejected Ben’s arguments. The Court acknowledged statute of limitations had expired but turned to traditional Navajo law:

Building off the discussion of k’e, the court noted Ben admitted she failed to honor her agreement to pay Burbank. This violated the Navajo tradition “that when people make promises between one another, oral or written, they should honor those promises.”Footnote ¹⁴ The court also emphasized the relationship between the parties. While they were not blood relatives, they were members of the same clan. Being clan relatives amplified Ben’s duty to compensate Burbank because “one must respect his or her relatives in order to maintain social order.”Footnote ¹⁵

Given the importance of respecting one’s agreements and relationships, the Court expressed disdain with Ben’s defense:

The Navajo Nation Supreme Court emphasized it was not setting forth a general rule for contracts but addressing the specific facts of the case. And based upon the facts, it believed “substantial justice was done” by holding Ben to her agreement.Footnote ¹⁷

Ben v. Burbank shows how traditional tribal law can provide a unique perspective on justice. Whether the Navajo Nation Supreme Court decided Ben “right” is relative. Most American judges would probably accept Ben’s statute of limitations defense without much debate, and according to the law, they would be correct. Nevertheless, most American judges – and Americans – probably would not be outraged with the ruling in Ben. In fact, many may desire the outcome the Navajo Nation Supreme Court reached. After all, Ben admitted she owed Burbank money for the work he performed. Requiring her to pay her debt is hardly inequitable. Regardless of one’s personal thoughts about the case’s outcome, the Navajo Nation Supreme Court was in the best position to make a judgment about the events occurring on Navajo land.

Nevertheless, there are legitimate critiques of tribal law. One is that many tribal codes are inchoate. Tribes are often small, have severely limited resources, and have little commercial activity occurring on their land. Thus, tribes have had little reason to establish comprehensive codes. Courts can, and do, fill the gaps in tribal law by referring to outside sources, such as state and federal law; nonetheless, published laws are necessary to provide businesses and other actors with certainty. Similarly, tribal laws are often difficult to locate. The lack of easily accessible published law is particularly true in the realm of jurisprudence. Even if tribal laws are posted on a website, finding and navigating the website can be challenging. Inaccessibility cloaks tribal law in secrecy and leads many individuals to fear the worst. Lack of funding, poor access to the internet, and myriad other issues have made publishing laws a relatively low priority for many tribes. To be sure, tribes are increasingly making their laws available through their own websites and online legal databases. However, many tribes have a long way to go in publishing their laws.

17.2 Tribal Courts

Tribal courts come in a variety of structures. Most tribal courts are largely carbon copies of the state and federal court systems; that is, they employ an adversarial system. Tribal courts often contain both a trial court and an appellate court. Tribal courts typically serve a single tribe although approximately seven intertribal courts exist that serve two or more tribes. Five tribes have federal Code of Federal Regulations (CFR) courts that are funded and operated by the federal government. Notwithstanding, CFR courts enforce laws enacted by the tribes and assert the tribes’ own sovereignty rather than delegated federal sovereignty.Footnote ¹⁸ In addition to adversarial courts, many tribes also have alternative dispute resolution systems, often known as peacemaker courts. As the name suggests, peacemaker courts attempt to restore harmony to the parties through dialogue aimed at addressing the underlying source of the dispute.

Each tribe sets its own criteria for judges. Some tribes require their judges to be citizens of the tribe and may even require the judge to be fluent in the tribe’s Indigenous language. Other tribes require their judges to be citizens of an Indian tribe, but many tribes permit non-Indians to serve as judges. Tribal judges are not always required to possess law degrees though a surprisingly high number of state court judges do not have law degrees either.Footnote ¹⁹ Nevertheless, many tribal judges have law degrees as well as membership in a state bar association. Indeed, several tribal judges are law professors. At least a handful of tribal judges serve concurrently as judges in the surrounding state’s court system. When it comes to pay, some tribal judges are poorly compensated while others earn more than their state court counterparts.

Regardless of the requirements to serve on a tribal judiciary, tribal judges do their best to administer justice in an impartial manner. Studies have consistently shown tribal courts are fair – to both Indians and non-Indians.Footnote ²⁰ Indeed, non-Indians frequently prevail in tribal courts. A study of the Mississippi Band of Choctaw Indians (MBCI) tribal courts – conducted while Dollar General was contesting the fairness of the MBCI judiciary – surveyed approximately 5,000 cases involving nonmembers and found “[o]ver 85% of the suits involving nonmembers resulted in a settlement or a win for the non-Indian party.”Footnote ²¹

Like all human institutions, tribal courts will occasionally err, but it is unlikely that any tribal court judge would be as bold as former West Virginia Supreme Court Chief Justice Richard Neely,Footnote ²² who declared:

Despite this open admission of favoritism, there was no attempt to strip West Virginia of jurisdiction over out-of-staters. Instead, the West Virginia judiciary remained presumptively fair and impartial to all persons.

The presumption is just the opposite when it comes to tribal courts. A prime example occurred in a 2020 federal district court case.Footnote ²⁴ The federal judge was tasked with determining whether an arbitration agreement between non-Indians and the Tunica-Biloxi Tribe of Louisiana was valid. The tribe argued the arbitration agreement was valid in part because the non-Indians had the ability to opt out of arbitration and pursue their claims in tribal court. However, the federal judge rejected the tribe’s argument because “[h]ad Plaintiffs opted out of arbitration, they would have found themselves in front of the Tribal Court – still subject to tribal law and unable to raise Florida-law claims, only in a distant and more unfriendly forum.”Footnote ²⁵ The federal judge did not describe what made the tribal court “unfriendly.” Accordingly, it seems the federal judge assumed the Tunica-Biloxi judge was a tribal citizen without any law training who was appointed to the bench solely to rule in favor of the tribe.

The reality is quite different. The Tunica-Biloxi Tribe of Louisiana’s judge at the time of the federal court case was Robert Johnson. Judge Johnson is Caucasian. He earned a Juris Doctor from Loyola University New Orleans College of Law and is a member of the Louisiana State Bar Association. Prior to presiding over the Tunica-Biloxi court, Judge Johnson was a state prosecutor. He also served in the Louisiana House of Representatives for twelve years, including as House Minority Leader.Footnote ²⁶ If Judge Johnson were presiding in a state or federal courtroom, his competence and impartiality would not be questioned. Nonetheless, the federal judge did not bother inquiring into who served on the Tunica-Biloxi court; the federal judge simply assumed the tribal judge was biased. As long as non-Indians are allowed to presuppose tribal judges lack legal sophistication, tribal court jurisdiction will continue to be undermined.

The fear of tribal courts is exaggerated, but uneasiness about being hailed into a foreign court is deeply ingrained in the American psyche. Hence, the Founding Fathers enshrined a provision in the Constitution – diversity jurisdiction – allowing citizens of different states to litigate state law issues in federal court. The Founding Fathers did this because they feared state juries, as well as elected state judges, would be biased against out-of-state residents. Unlike state courts, the judges in federal courts serve for life and cannot have their salaries reduced, so they can make decisions without fear of political repercussions. Consequently, diversity jurisdiction played a key role in developing a national economy by ensuring individuals would have their rights adjudicated in a neutral tribunal regardless of which state they conducted business.Footnote ²⁷

While parties can invoke diversity jurisdiction to elude potentially biased state judges, they cannot use diversity jurisdiction to escape tribal courts because tribal courts exist independently of the United States Constitution. Concerns of bias are elevated because some tribal courts are not independent branches of government, which poses the threat of political interference in the judicial process. However, it must be noted, the United States designed many of these tribal governments with the Indian Reorganization Act (IRA).Footnote ²⁸ The IRA did not provide tribes with independent courts.Footnote ²⁹ Though a growing number of tribes are reforming their laws to establish an independent judiciary, some tribal courts remain subordinate branches of government. There are occasional anecdotes of tribal legislatures and executives interfering in the judicial process.Footnote ³⁰ Furthermore, juries in tribal courts are usually composed of the tribe’s citizens, and given that many tribal populations are small, there is fear of jury bias in favor of tribal citizens. Therefore, non-Indians often despair at the thought of being forced to litigate in tribal court.

17.3 Tribal Legal Bureaucracy

Perhaps the most legitimate critique of tribal legal institutions is inadequate tribal bureaucracy. Bureaucracy is the system of government agencies responsible for implementing laws. As with courts, laws are largely feckless without the necessary administrative structure, and tribes have not always done well with implementing laws. Joseph Austin’s experience registering a business is illustrative.

Austin grew up on the Navajo Nation and speaks fluent Navajo.Footnote ³¹ His father served on the Navajo Nation Supreme Court. Inspired by his father, Austin earned a degree in business then graduated from law school. He proceeded to earn a Master of Laws in international economic law and policy. He is currently pursuing a Doctor of Juridical Science. Austin is also licensed to practice law in state and tribal courts, including the Navajo Nation. Growing up on the Navajo Nation and having many clients there, Austin sought to register his law firm on the Navajo Nation.

Austin read the Navajo business laws and mailed in his paperwork – there’s no e-filing – to the Navajo Department of Economic Development (DED). He did not hear back, so he called to inquire about the delay. Austin learned his address was a problem. Navajo law requires the business’ registered agent to reside on the Navajo Nation. The trouble is Austin, like many other Navajo, does not have a street address at their reservation residence. Thus, Austin listed a P.O. Box, which again is common practice on the Navajo Nation. Rather than using the P.O. Box address, the DED required would-be registrants to draw a map leading to their domicile. Befuddled but with new direction, Austin proceeded to draw a map. He used a Google image, listed mile markers, and drew a few key indicators.

After not hearing from the DED for several weeks, Austin called again. The DED told Austin, based upon his map, it did not believe he resided on the Navajo Nation. Perplexed, Austin attempted to convince the bureaucrat that he lived on the reservation. He succeeded. However, his registration was denied anyway. Turns out, he forgot to submit a refiling fee meaning he had to restart the entire registration process. At this point, Austin gave up on the idea of his registering his business on the Navajo Nation.

Austin’s situation is not anomalous. One tribe required businesses wishing to operate on its land to lease land from the tribe. Completing the leasing process took more than 100 steps and more than a year.Footnote ³² No business wants to deal with this when it can open off reservation in less than a month. Similarly, about two dozen tribes have adopted secured transaction laws at the urging of economists and lawyers, most notably the Model Tribal Secured Transaction Act (MTSTA).Footnote ³³ The MTSTA is supposed to increase lender certainty by allowing lenders to perfect security interests in the borrower’s collateral. The trouble is, no tribe has developed a robust, publicly searchable filing system.Footnote ³⁴

Without a filing system, the MTSTA is of little value.Footnote ³⁵ Some tribes have tried to overcome this issue by using the surrounding state’s filing system.Footnote ³⁶ This is practical in the sense that the state’s system already exists and people are comfortable with it, so the tribe can save money by using the existing system. The tradeoff, however, is that relying on the state system to implement a tribe’s own laws can undermine the tribe’s sovereignty. For example, New York may copy Delaware’s corporate law, but New York will implement its own registry and use its own court system to enforce the New York corporate code. To do otherwise would be relinquishing sovereignty to Delaware.

Poorly developed tribal bureaucracies arise from the same reasons as the underdevelopment of tribal law. The dearth of private sector activity in most of Indian country means no one is registering corporations or security interests under tribal law; hence, tribes have little reason to develop the bureaucratic machinery necessary to facilitate these transactions. But without the aforementioned institutions, individuals cannot meaningfully access tribal commercial law. The absence of commercial institutions creates uncertainty and increases transaction costs. Businesses detest both, so by failing to invest in legal bureaucracies, tribes hinder their ability to attract outside capital.

Financial limitations are a major reason why tribal commercial bureaucracies are underdeveloped. Inadequate funds make it difficult for tribes to hire qualified personnel. Resource constraints also present an obstacle to training people for jobs. Moreover, most people are unwilling to relocate to a remote reservation for a position as a low- to mid-level tribal bureaucrat. This is particularly true given the shabby housing in much of Indian country.Footnote ³⁷ As a result of these factors, tribal legal bureaucracies are often suboptimally staffed.

17.4 Strengthening Tribal Law

To be treated as nations, tribes must strengthen their legal institutions. Foremost, tribes must make their laws, procedures, and jurisprudence publicly available. Governments make and enforce laws; hence, tribes must do what governments do if tribes desire to be treated as governments. Tribes with well-developed laws need only make them readily available. This could mean creating a tab on the tribe’s own website. It could just as easily publish its laws through an online legal directory. Or it could do both. Greater access means more people can learn about tribal law, and as more people realize tribes enact and enforce laws, more people will view tribes as bona fide governments.

For tribes with less well-developed legal systems, tribes can pull from outside sources. Other tribes are legitimate sources of law, and even state or federal rules can be a reasonable choice for tribes to build around. To be sure, scholars have decried tribes’ adoption of state and federal law.Footnote ³⁸ However, tribes have always incorporated new ideas into their societies. Law is no different. As the Navajo Nation Supreme Court explained, “That a provision in the Navajo Nation Code is adopted from an outside source does not, by itself, make it illegitimate ….”Footnote ³⁹ The question is not so much where does the law originate as does the law reflect the tribe’s values? Tribal legislative bodies are the best entity to make this decision.

When tribal governments fail to legislate, they create uncertainty as to what law governs their land. Moreover, failure to enact laws gives federal and state courts a reason to claim authority over tribal land as the tribe itself does not appear to be governing if there is no tribal law. This is not to say tribes need to completely revise their entire codes overnight, but tribes must become more active in the legislative sphere if they want to be treated as sovereigns by other governments.

When adopting new laws, tribes should be mindful that laws evolve. That is, adopting a law today does not bind the tribe to it for all time. Of course, a society’s laws should not be in a constant state of flux as this is nearly as bad as not having any laws. Rather, the point is tribes can modify their laws based upon changing circumstances. A foreseeable circumstance is a tribe gradually drifting away from following state law and instead developing its own laws as its legal system evolves. The Mashantucket Pequot Tribal Nation Tort Claims Law explicitly anticipates this scenario, declaring as “the tribal court and tribal law continue to develop … there is no need to direct the court to follow state law as a tribal law.”Footnote ⁴⁰

17.5 Strengthening Tribal Institutions

Tribal courts are constantly improving. They are doing this by merging the best of their Indigenous traditions and the United States legal system. As a practical matter, many tribes are generally comfortable with the design of the mainstream, United States justice systems; that is, a judge presides over the case and each party has an advocate. And as noted, mimicking the state and federal courts helps tribes gain greater legitimacy in the eyes of non-Indians, which matters when fighting to be treated as a government. During his 1994 confirmation hearing to serve on the United States Court, Stephen Breyer was asked, “[S]hould litigants in Indian Country be able to appeal to the Federal district court at the end of their journey through the tribal courts?”Footnote ⁴¹ Breyer answered, “Well, my substantive instinct is, of course, that if the procedures and protections in the tribal court can be brought to match those in the Federal court, the problem will tend to go away, because then, of course, you would have the same protection in both places.”Footnote ⁴² That is, if tribal courts provide procedural safeguards greater than or equal to the federal standard, there would be fewer reasons to appeal a tribal court decision in federal court.

That is not to say tribal court innovation should be discouraged. On the contrary, Justice Sandra Day O’Connor wrote tribal courts have “much to teach the other court systems operating in the United States.”Footnote ⁴³ Accordingly, Justice O’Connor said tribal courts “need not … replicate the process undertaken in State and Federal courts.”Footnote ⁴⁴ Justice O’Connor noted tribal courts can operate at a faster pace and with less procedural stuffiness than state or federal courts.Footnote ⁴⁵ She appreciated tribal courts’ ability to develop unique means to resolve disputes.Footnote ⁴⁶ Justice O’Connor also acknowledged that traditional Indigenous dispute resolution methods, like peacemaking, are being examined across the world as alternatives to the adversarial model of justice.Footnote ⁴⁷

As long as tribes respect the rights of parties, it does not matter how they decide to structure their courts. Many tribes will choose the western model, and others may prefer a more traditional, Indigenous method. Some tribes may choose to develop a western court and a peacemaker court as the tribe may believe each forum is superior for particular types of disputes, like alternative dispute resolution for child custody and familial matters. Tribes may choose to substitute technology, such as artificial intelligence, for a judge. Allowing tribes to experiment helps spur policy innovation throughout the United States.

17.6 Tribal Institutions and Economic Development

When it comes to sparking tribal economies, tribes may benefit from following a more conventional approach. Businesses are usually conservative. They often value uniformity because it lowers transactions costs; hence, states adopted the Uniform Commercial Code to facilitate interstate commerce. Tribes have been urged to adopt certain uniform commercial laws for the same reasons. While diversity has its perks, if each of the 574 federally recognized tribes adopts its own laws governing business formation, registration, and contract enforcement, an individual must learn an entirely new set of rules on each reservation. Furthermore, the individual will have to learn an entirely new judicial system. This is inefficient.

Tribes can surmount this obstacle by creating business courts, as approximately half of the states have already done. As the name suggests, business courts hear only business disputes. Judges in state business courts are experts in the subject matter, and this is particularly important when dealing with complex, commercial transactions. Expert judges plus limited dockets enable business litigation to proceed at a faster rate. Business courts benefit the entire judicial system by removing cases from the mainline docket thereby promoting judicial efficiency. Businesses have expressed their support for business courts, and simply creating a business court may stimulate economic development by signaling to investors the jurisdiction is serious about commerce.

Tribes can reap the same benefits by creating an intertribal business court. Intertribal courts already exist, and an intertribal court often has more resources than the court of a single tribe. Plus, business is a subject matter particularly well-suited for intertribal collaboration because commerce has universal norms. An intertribal business court would significantly reduce uncertainty about tribal courts because businesses would know where their disputes will be litigated. Furthermore, an intertribal business court could serve as a centralized repository for business filings, such as corporate registrations and security interests. A centralized database for business filings can lead to greater resources which will allow the court to improve administrative capacity. If the intertribal business court has an easily navigable website with the relevant laws, procedures, jurisprudence, and judicial biographies illuminating the qualifications of the judges, outside investors will have little reason to worry about the capacity or fairness of the intertribal business court.

Businesses have been involved in many challenges to tribal jurisdiction, and when tribal court jurisdiction is challenged, tribal sovereignty is imperiled. A high-quality, intertribal business court can greatly reduce the odds of businesses challenging tribal jurisdiction. To be sure, a business could contest jurisdiction anyway, but the argument will not hinge on the court’s fairness or quality. In fact, businesses may prefer the intertribal forum to a state forum or arbitration if the tribal institution is fair, adroit, and efficient.

None of this is to say how tribes should design their laws or institutions. As sovereigns, tribes have the right to make their own decisions about the structure of their institutions. However, it is important to note that a nation’s institutions play a large role in determining its destiny. With the freedom to make choices comes the freedom to make mistakes. Some decisions will work well, and some will not produce the desired result. The important thing is tribes have the ability to sculpt their own institutions and pursue their own goals. If a tribe likes the path a law has put it on, the tribe should keep the law. If a tribe is dissatisfied with the course it is on, the tribe can choose to enact new legislation or continue to bear the costs of the law. The tribe itself – rather than the federal government – must be responsible for determining the direction its institutions take.

✦✦✦

Tribal legal institutions are vital to tribes operating as governments. Tribes should enact laws that reflect their values and make the laws available to the world. As tribal laws become more well-known, the fear of tribes operating as governments will dissipate. And as people come to respect tribal law, it will force them to reckon with the United States’ narrative about tribes as simple, unsophisticated savages prior to European arrival.

A corollary of affirming tribal law and jurisdiction is excluding states from exercising authority in Indian country. When states exercise jurisdiction over Indian country, it creates confusion. Should an individual follow tribal law or state law? Which police should an individual call? Which court should a grievance be filed in? And which government should be blamed for the inadequate roadways? Confusion over which government has authority leads to problems with government accountability. If individuals do not know which government is responsible for a problem, individuals will have difficulty mustering the political will to bring about institutional reform.

Respecting tribal governments as the primary force in Indian country aligns well with the United States’ federalist system. Federalism enables each state to craft its own unique rules, and individuals respond to the laws. People regularly cross state borders to take advantage of lower tax rates, liberal alcohol laws, and more favorable interest rates.Footnote ¹ Nevada developed laws favorable to gaming while gaming was illegal in most states; thus, Nevada became the United States’ premier gaming destination. Likewise, Delaware has long made an industry out of its corporate law. As a result, approximately two-thirds of all Fortune 500 companies are incorporated in Delaware although the state is less than 1 percent of the United States’ landmass – several reservations are larger than the stateFootnote ² – and has a population of barely one million. Corporations flock to Delaware because it has developed superior corporate law. Federalism allows each state to conduct policy experiments and serve as legal laboratories from which other jurisdictions can learn. Tribes can add to federalist system.

18.1 State Opposition

States will likely oppose efforts to respect tribal boundaries as they have long been regarded as tribes’ “deadliest enemies.”Footnote ³ The reason is states view tribes as competition. States have opposed tribal gaming and cannabis while not minding that other states permit those activities. Moreover, states allow their citizens to freely travel to locations with taboo festivities. Indian country is simply another sovereign destination. If states view tribes as legitimate sovereigns, state hostility to tribal public policy choices may fade.

But states’ greatest Indian country fear is tribal tax sovereignty. States are leery of tribes marketing tax advantages as a means of drawing consumers to Indian country. The Supreme Court has sided with states since the 1970s, describing lower tribal tax rates as “an artificial competitive advantage over all other businesses in a State.”Footnote ⁴ Likewise, the Supreme Court asserted, “[T]he competitive advantage which the Indian seller doing business on tribal land enjoys over all other cigarette retailers, within and without the reservation, is dependent on the extent to which the non-Indian purchaser is willing to flout his legal obligation to pay the tax.”Footnote ⁵ This portrayal implies tribes are not legitimate governments, which is both ahistorical and inconsistent with the federal government’s tribal self-government policy.

While states may not like tribes’ economic policies, state prerogatives should not govern Indian country. The United States Constitution deprives states of authority over Indian affairs. Thus, states cannot constitutionally impose their laws upon tribes, nor does the Constitution allow states to supersede the federal government’s tribal self-determination policy.Footnote ⁶ As the Supreme Court explained:

The Constitution commands that state interference in tribal affairs must end unless and until Congress authorizes the state action.

Furthermore, the enabling acts and constitutions of eleven states expressly forbid states from exercising jurisdiction over the Indian tribes within their borders.Footnote ⁸ For example, the legislation granting Washington statehood declares, “[S]aid Indian lands shall remain under the absolute jurisdiction and control of the Congress of the United States,”Footnote ⁹ and the Washington Constitution contains the same exact language.Footnote ¹⁰ Nonetheless, Washington and other states with these disclaimers routinely attempt to exercise jurisdiction over the tribes within their borders. State taxation of tribal commerce contravenes the United States Constitution and state laws requiring states to leave tribes alone.

Legal issues notwithstanding, fear of tribal law diverging from the surrounding state is overplayed. Tribes generally want the same thing as the surrounding state. That is, tribes want their communities to be safe and have economic opportunities. This places a natural limit on tribal legal deviation from states. Additionally, states already craft numerous exceptions to their own laws. Put simply, many state laws do not uniformly apply throughout a state’s territory. Indeed, states and municipalities regularly enact laws to give particular businesses a competitive advantage. The Magic Kingdom is a prime example.

Walt Disney wanted to build the Magic Kingdom in Florida, so he lobbied the Florida legislature to create a special jurisdiction for his park. He succeeded. The Reedy Creek Improvement District, renamed the Central Florida Tourism Oversight District in 2024,Footnote ¹¹ was authorized by the Florida legislature in 1967 and essentially made the 25,000-acre Magic Kingdom into an independent municipality.Footnote ¹² Thus, the Reedy Creek Improvement District – which is controlled by Disney – can collect taxes and issue bonds. This enables Disney to provide government services like fire protection, road maintenance, and waste management.Footnote ¹³ Through the Reedy Creek Improvement District, Disney can bypass municipal zoning and permitting requirements. In fact, one state senator claimed the Reedy Creek Improvement District authorized Disney to build a nuclear power plant on its property without seeking additional state approvals.Footnote ¹⁴

The Reedy Creek Improvement District gives Disney a significant competitive advantage over its rivals, including Universal, Legoland, and SeaWorld.Footnote ¹⁵ Accordingly, the Reedy Creek Improvement District has long been controversial as members of the Florida legislature have described the District as “anti-economic liberty” and an “aberration of the free market.”Footnote ¹⁶ Following a political dispute with Florida’s Governor, the legislature passed a bill dissolving the Reedy Creek Improvement District. However, the dissolution was not immediate. It also is not clear whether the legislature can revoke the Reedy Creek Improvement District because Florida law requires special districts be dissolved by a majority vote of the district’s landowners, and Disney owns the majority of land in the Reedy Creek Improvement District.Footnote ¹⁷ Additionally, eliminating the District would make Florida taxpayers responsible for approximately one billion dollars’ worth of debt.Footnote ¹⁸ The future of the Reedy Creek Improvement District remains to be seen.Footnote ¹⁹

Regardless of what happens to the Reedy Creek Improvement District, it is only one of many such legal blessings states have bestowed on their favorite corporations. In fact, there are more than 50,000 special districts in the United States.Footnote ²⁰ Though the purpose of special districts varies, some exist to benefit a particular interest group.Footnote ²¹ States and counties also routinely use financial instruments, such as tax breaks and subsidies, to entice businesses. A “Prime” example was cities and states throwing money at Amazon in hopes of luring an Amazon corporate headquarters (HQ2). Chicago, Illinois offered to let Amazon control the expected $1.32 billion in personal income taxes paid by Amazon’s employees.Footnote ²² New Jersey offered Amazon $7 billion in tax breaks.Footnote ²³ All but seven states submitted bids to land the Amazon HQ2.Footnote ²⁴ Despite regularly granting special tax breaks and legal privileges to corporations, states continuously assert it would be unfair for tribes to have different laws than the state. There are no principled reasons why states insist tribes conform to state law while states provide their favorite businesses with carve-outs.

18.2 Tribal Self-Governance and the Federalist System

Once freed from external governments, tribes will be responsible for their futures. Tribes should continue to receive federal money – as do states and even foreign countries – without diminishment of their sovereignty. Moreover, tribes are owed federal funds pursuant to hundreds of treaties. But aside from federal financial support, tribes should be on their own. Political independence means political accountability; that is, if a tribal government is performing poorly, its citizenry knows who is responsible and can replace its leadership. Under the current system, tribal leaders can rightly blame tribal woes on states and the federal government. With political autonomy, tribes will own the benefits and costs of their choices.

Tribes may use their sovereignty to compete with states, but so what? As noted, states use their laws to compete with other states for economic opportunities, and states even forge exceptions to their laws for their corporate favorites. Tribes should be able to engage in the same behavior. Nothing in the United States Constitution prevents tribes from competing with states; indeed, tribes have a greater claim to autonomy than the states because the Constitution did not abridge tribes’ inherent sovereignty.Footnote ²⁵ Of course, the federal government has long prohibited tribes from governing themselves, but the age of imperialism has ended – at least outside of Indian country. If the federal government is to honor treaties and its tribal self-determination policy, tribes must have the same ability to control what happens within their borders as states do within theirs.

States, particularly those with significant Indian country within their borders, will assert this upsets state power. The Supreme Court addressed this issue in 2020 when it ruled the Creek Reservation had never been disestablished, averring, “But what are we to make of this? Some may find developments like these unwelcome, but what we are told others may celebrate them.”Footnote ²⁶ Whatever the perils of displacing state law with tribal law may be, the Court explained they “are not a license for us to disregard the law.”Footnote ²⁷ And the law is clear. Pursuant to the original understanding of the United States Constitution, states have no authority over Indian tribes.Footnote ²⁸ Therefore, tribes should be free from state interference.

18.3 Tribal Sovereignty Can Benefit States

State fears of tribal competition are shortsighted. States may lose some sales and property tax revenue; however, states will benefit from tribal economic development. Businesses operating in Indian country overwhelmingly employ non-Indians. Even if the state collects no taxes from Indian country commerce, the individuals employed by tribes will pay state taxes when they leave Indian country.Footnote ²⁹ Plus, off reservation businesses will have new customers in Indian country. As the Lake Chelan Chamber of Commerce in Washington explained, “[The Mill Bay Casino on the Colville Reservation is] the single largest private business employer in the region, pumping payroll dollars into every facet of our community through direct purchases, indirect purchases, payroll taxes, school taxes, sales taxes and more.”Footnote ³⁰ In addition to private business growth, tribes routinely build infrastructure,Footnote ³¹ as well as provide other governmental services, thereby alleviating the state of these obligations. Accordingly, Indian country economic development leads to state economic growth.

While taxation is a major battleground, environmental regulation is the area where tribal sovereignty has the greatest potential to upset state policy. Environmental policy is inherently tricky because pollution is not easily containable; hence, pollution often has impacts on third parties. For example, toxins dumped into a tribal stream can impact off reservation users, and several tribes are involved with oil and other high-pollution industries. But concerns about extreme tribal pollution are misplaced because federal law preempts the field, and tribes are bound by federal law. Hence, tribes cannot become laissez-faire, extractive-industry paradises imposing contaminants on the surrounding states.

On the flipside of the coin, tribes can already act as states under the Clean Air Act, Clean Water Act, and other environmental statutes. Under tribes as states (TAS) status, tribal environmental quality standards can be more stringent than the surrounding state and extend off reservation. This status has existed for decades, and the evidence indicates tribes exercising TAS status see significantly improved environmental outcomes as tribes are much more likely to diligently protect their natural resources than distant federal bureaucrats or the surrounding state.Footnote ³² Although Indian country environmental protection substantially improves under TAS, state economies have not been undermined. Consequently, state fears of tribal sovereignty shackling state governments are unfounded.

Significantly, respecting tribal sovereignty does not mean tribes and states must become rivals. Honoring tribal autonomy presents opportunities for tribal–state collaboration. Several tribes and states have already entered compacts over taxation, natural resource management, and other governmental matters. Although compacting can work well, states usually have leverage under current law because the Supreme Court often allows them to impose their laws on Indian country. Treating tribes as sovereigns merely levels the playing field. Assuming tribal–state animosities flare, Congress can legislate to resolve the issue.Footnote ³³ However, there are reasons to believe tribes and states can collaborate to make life better for their citizens.

18.4 Tribes as Shields from State Protectionism

States frequently ban peculiar things that are legal in other states. One of the more common protectionist laws governs car dealerships. Many states have laws preventing automobile manufacturers from selling cars directly to consumers.Footnote ³⁴ Car dealers favor these laws because they give them a monopoly. Limited competition means car dealers can charge higher prices. However, dealer laws restrict consumer choices.

These dealer laws present a problem for Tesla. In fact, Tesla could not open in New Mexico and many other states because it is not a traditional, franchised car dealership. New Mexicans could evade the ban by driving to a surrounding state, and several did. When they did, no one was harmed. All that happened was local monopolists lost business. Tesla tried to have the law changed, but the state’s established car dealers blocked attempts to open the car market.

Since protectionist policies prevented Tesla from opening in New Mexico, Tesla decided to open on Nambé Pueblo land in September of 2021.Footnote ³⁵ Just like before, New Mexicans can avoid protectionist state laws and purchase a Tesla. But now, they do not have travel to Colorado, Arizona, or Utah. This is helpful when one’s Tesla has a maintenance issue. Aside from Tesla’s competitors, everyone in New Mexico is better off because Nambé Pueblo allowed Tesla to open on its land.Footnote ³⁶ Even New Mexico’s Governor, Michelle Lujan Grisham, applauded Nambé’s partnership with Tesla.Footnote ³⁷

Tesla’s Nambé Pueblo operation has been a success; accordingly, it opened a branch on the Santa Ana Pueblo in New Mexico a year later. As Patrick Brenner, president of the Southwest Public Policy Institute, explained in an op-ed:

Brenner further noted, “If New Mexico, its legislative body and Lujan Grisham refuse to address antiquated laws that patently inhibit positive business activity, tribal leadership has an incredible opportunity to step in. They are providing real solutions, whereas state government just puts up roadblocks as it cozies up to industry lobbyists.”Footnote ³⁹ Thus, Tesla’s tribal partnership benefited New Mexicans by creating choices that were outlawed by outmoded state laws.

18.5 Tribal Self-Governance and a Mississippi Miracle

The Mississippi Band of Choctaw Indians is the premier example of a tribe benefiting the surrounding state. The Choctaw were the poorest people in the poorest state from 1830 to the 1970s. Prior to the Indian Removal Act of 1830, the tribe had built a dynamic economy. Removal crushed the Choctaw economy, and the Choctaw remaining in Mississippi endured extreme hardship, including racism and another forced relocation during the allotment era. A 1918 federal report on the Mississippi Choctaw noted, “They are almost entirely farm laborers or sharecroppers. They are industrious, honest, and necessarily frugal. Most of them barely exist, and some suffer from want of the necessaries of life and medical aid. In many of the homes visited by me there was conspicuous evidence of pitiable poverty.”Footnote ⁴⁰

Phillip Martin was born to a poor Choctaw family seven years after the report. Martin attended a Bureau of Indian Affairs boarding school in Cherokee, North Carolina then joined the United States Air Force to serve during World War II.Footnote ⁴¹ Martin remained in Europe after the war. As he watched European governments rebuild, he wondered:

Martin retired from the United States Air Force in 1955 and returned to Mississippi.Footnote ⁴³ He began his career in tribal leadership two years later.Footnote ⁴⁴

Conditions were bleak on the Choctaw Reservation and there were few opportunities for improvement. The non-Indian communities near the Choctaw Reservation were sparsely populated; Jackson, Mississippi – located over an hour away – was the biggest city. Moreover, the Choctaw Reservation contains no natural resources. But the Great Society programs of the 1960s presented Martin with a chance. Instead of allowing the federal government to build low-income housing on the reservation, Martin had the tribe create a construction company, Chahta Development. Chahta Development used federal funds to employ Choctaw citizens to build the tribal housing.Footnote ⁴⁵ Chahta Development provided good paying jobs, as well as experience, to dozens of Choctaw citizens.

Chahta Development was a success, but Martin believed the Choctaw people would never be self-sufficient if they depended on the federal government and tribe for employment. Accordingly, Martin sought to attract private businesses to the Choctaw Reservation. To do this, he reformed the tribe’s laws and essentially turned the reservation into an enterprise zone.Footnote ⁴⁶ Tribal sovereignty enabled the Choctaw to establish their own zoning authority and other commercial regulations.Footnote ⁴⁷ However, legal reform was only part of the equation. The Choctaw needed a business to operate on its reservation. Martin did not have any flashy gimmicks. Martin personally handwrote 500 letters asking companies to locate on the Choctaw Reservation. In 1978, General Motors answered the letter and opened a 42,000-square-foot plant on the reservation.Footnote ⁴⁸

Martin was elected chief of the Mississippi Band of Choctaw Indians in 1979 and immediately turned to building relationships with local non-Indian governments. Mississippi is not known for its racial harmony, and the Choctaw experienced discrimination since the United States’ founding. Nevertheless, Martin was able to build strong rapport with nearby Philadelphia, Mississippi. Martin did this by emphasizing that Choctaw development benefits everyone in Mississippi. In fact, many of those who had long discriminated against the Choctaw were now turning to the tribe in search of employment. Martin’s outreach efforts succeeded as the city of Philadelphia issued industrial revenue bonds to finance the construction of an American Greetings Corporation facility on the Choctaw Reservation,Footnote ⁴⁹ the first time municipal bonds had been used for tribal economic development.Footnote ⁵⁰ Martin would go on to serve six consecutive terms as tribal chief and recruit dozens of businesses to the Choctaw Reservation.Footnote ⁵¹ The Mississippi Band of Choctaw Indians were economically self-sufficient a decade before it opened the first casino on its reservation.

Owing to Martin’s leadership, the Mississippi Band of Choctaw Indians became an economic powerhouse. The tribe had less than $100,000 in assets when Martin entered office and more than a billion dollars in assets when he left.Footnote ⁵² The tribe went from being a poverty haven to one of the five largest employers in Mississippi, with approximately 9,000 full-times jobs on the reservation.Footnote ⁵³ The tribe currently owns businesses throughout North AmericaFootnote ⁵⁴ and produces everything from car parts to plastic cutlery for fast-food restaurants.Footnote ⁵⁵ As a result of economic development, Choctaw life expectancy increased by twenty years while Martin was in office.Footnote ⁵⁶ Similarly, economic growth enabled the tribe to provide healthcare and education for its citizens. And instead of being a burden on the state, Mississippi now counts on the Choctaw to employ thousands of its non-Indian citizens.Footnote ⁵⁷

Martin’s influence went far beyond his own tribe. His served in numerous Indian country leadership positions, including as president of the National Tribal Chairmen’s Association.Footnote ⁵⁸ Martin’s goal was always to make the Choctaw and other tribes self-sufficient. He saw economic development as the key to this goal. While addressing a college campus, a student asked Martin if his focus on economic development was undermining Choctaw culture. Martin calmly responded, “Well, it used to be that everyone moved away, but now they’re all coming back.”Footnote ⁵⁹

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Not every tribe will become an economic powerhouse like the Mississippi Band of Choctaw Indians. Not every tribe wants to. But every tribe wants their citizens to be safe and have economic opportunities. Neither the state nor the federal government should impede tribes in their quest to make life better for their citizens. Liberating tribes from the control of outside governments is essential for tribes to escape their “dependent” status and become sovereign governments.

Perhaps the simplest yet most difficult means of improving life in Indian country is changing the narrative on Indigenous history and culture. Most Americans receive minimal to no exposure to Indians throughout their formal education. When tribes are mentioned in textbooks, the references are almost always to tribes over a century ago. Accordingly, a relatively small portion of the United States understands even basic aspects of contemporary tribal existence. Likewise, lessons about Indians focus on their living in harmony with nature as simple, noncommercial, egalitarian peoples – usually in teepees. Not only are these depictions inaccurate, but these stereotypical images were designed to justify the dispossession and subjugation of Indians. The continued use of these tropes serves to reinforce the past and ongoing injustices Indians endure.

19.1 The Education System

The most obvious place to help fill the knowledge gap is the education system. Now is a particularly good time to start. Textbooks are being altered to excise references to racism. Parents are trying to ban their children from seeing photos from the civil rights movement on the basis they do not want their children to see racism.Footnote ¹ However, racism is a part of the United States’ history. Ignoring the past does not erase injustice. Teaching about historical oppression does not mean members of one group should feel superior or guilty. Teaching the past, and all its unpleasantness, helps better understand the world as it is today. Educating about the legalized racism that endured for most of the United States’ history serves as an important warning about the dangers of vesting majorities with power over minorities.

Indians are a prime example of how ignorance of the past can undermine present-day rights. A small percentage of Americans grasp even the most basic tenets of Indian history; thus, people commonly make statements like, “Sure. The United States committed genocide and stole Indian land, but now Indians have casinos.” Hence, casinos are commonly viewed as reparations, when in reality, a tribe’s choice to permit casinos within its borders is no different than a state’s choice to permit casinos within its borders. That is, tribal casinos are a sovereign prerogative rather than a federal act of contrition. Failure to grasp the difference leads people to oppose casinos and other endeavors on tribal lands while simultaneously having no problem with Nevada permitting gaming within its borders.

Teaching Indian history could help prevent these uninformed attacks on tribal sovereignty. Educating students that the Americas were populated by people who operated sovereign nations with vibrant cultures long before 1492 will help people better understand why tribal sovereignty exists today. Similarly, educating students that Europeans and the United States recognized tribes as sovereigns in numerous treaties will help the public better understand why tribal sovereignty exists today. United States citizens should also know racial discrimination extended to Indians too. Indians were not legally “persons” until 1879, and Indians endured legalized discrimination well into the twentieth century. For example, citizens of the United Houma Nation were required to attend segregated Indian schools until 1969. Education should also mention the contributions Indians made to the United States’ laws, culture, and survival during the early days of its independence.

Adding elements of Indigenous history to K-12 education is not a radical idea. Washington State enacted legislation in 2005 requiring Indian education in its K-12 curriculum. Washington’s Since Time Immemorial: Tribal Sovereignty in Washington State was endorsed by each of the twenty-nine federally recognized tribes within the state’s borders.Footnote ² Thanks to the curriculum, students are taught about tribal culture, economies, and governance.Footnote ³ Montana takes Indian education a step further as the state’s constitution explicitly recognizes the importance of teaching students about tribal sovereignty.Footnote ⁴ Whether Montana lives up to the lofty ideal espoused in its constitution is the subject of litigation;Footnote ⁵ nonetheless, the Indian education clause shows Montanans viewed tribal history as important to understanding the history of Montana. Other states can follow these examples.

19.2 Recognizing a Civil Rights Trailblazer

Like other groups, Indians have had their own civil rights struggles. Billy Frank, Jr. engaged in civil disobedience to assert his tribe’s treaty-guaranteed fishing rights. The Poarch Band of Creek Indians blocked school buses until the state permitted their children to attend public schools. Numerous other unsung Indian civil rights heroes exist. But the most iconic – even if little known – Indian civil rights leader is Chief Standing Bear of the Ponca Tribe.

Chief Standing Bear’s sagaFootnote ⁶ began when the United States negligently gave the peaceful Ponca Tribe’s treaty-guaranteed land, located in present-day Nebraska and South Dakota, to the Sioux in the 1868 Treaty of Fort Laramie.Footnote ⁷ The Ponca protested,Footnote ⁸ but a decade later, the United States forced the Ponca into the Indian Territory, now the state of Oklahoma. A significant portion of the Ponca died during their removal, and ill health was rampant among the Ponca in their new homeland. Within eighteen months, disease killed a quarter of the Ponca,Footnote ⁹ including Chief Standing Bear’s son, Bear Shield. Before Bear Shield passed, he expressed his fear of wandering the afterworld alone.Footnote ¹⁰ Thus, Chief Standing Bear promised to bury Bear Shield among his ancestors. After Bear Shield’s death, Standing Bear embarked on a journey to the Ponca homeland with his son’s deceased body and twenty-nine other Ponca. The contingent was arrested for leaving the reservation without federal permission.

The peaceful Ponca were sympathetic figures to the general public; plus, Chief Standing Bear’s journey off reservation was for a noble purpose. Accordingly, Chief Standing Bear’s arrest and detention made headlines. As a result, two lawyers volunteered to represent Standing Bear and proceeded to file a writ of habeas corpus challenging the legality of his detention.

To file a habeas corpus, the most basic requirement is that the petitioner must be a “person.” The United States opposed Chief Standing Bear’s petition by arguing Indians were not citizens of the United States nor were they persons.Footnote ¹¹ On the first account, the United States was unquestionably right. The Fourteenth Amendment granted everyone born within the border of the United States citizenship except for Indians. Indians could only become citizens through treaty provisions or by an act of Congress. No treaty or federal legislation made the Ponca United States citizens. Consequently, Chief Standing Bear was forced to contend that he – and by implication every other Indian – was a person.

At trial, Chief Standing Bear was summoned to testify as to whether he was a person. The United States objected to Chief Standing Bear’s testimony asking Judge Dundy, “Does this court think an Indian is a competent witness?”Footnote ¹² Judge Dundy permitted Chief Standing Bear to testify, answering, “The law makes no distinction on account of race, color, or previous condition.”Footnote ¹³ This was a historic ruling. It marked the first time an Indian was allowed to testify in a federal courtroom.Footnote ¹⁴ At the conclusion of the trial, Chief Standing Bear rose and addressed the court through an interpreter. Slowly raising his hand,Footnote ¹⁵ Chief Standing Bear proclaimed:

When Chief Standing Bear finished his speech, those in the courtroom were moved to tears and applause.Footnote ¹⁷

Ten days after the hearing concluded, Judge Dundy issued an opinion in favor of Chief Standing Bear. Judge Dundy opened his opinion by noting, “During the fifteen years in which I have been engaged in administering the laws of my country, I have never been called upon to hear or decide a case that appealed so strongly to my sympathy as the one now under consideration.”Footnote ¹⁸ Judge Dundy next described the Ponca as “a few of the remnants of a once numerous and powerful, but now weak, insignificant, unlettered, and generally despised race.”Footnote ¹⁹ After some legal meandering, Judge Dundy resorted to a dictionary and reasoned:

Therefore, Judge Dundy held the Ponca could not be compelled to return to their reservation in Oklahoma.Footnote ²¹ Free from federal custody, Chief Standing Bear laid his son’s bones among his ancestors.Footnote ²²

In 2019, Chief Standing Bear received long overdue recognition when Nebraska placed a statue of him in Statuary Hall in the United States Capitol.Footnote ²³ Then Speaker of the House of Representatives, Nancy Pelosi, welcomed the statue by stating, “Our nation takes another step forward as we honor a man of extraordinary courage, perseverance, and strength, Chief Standing Bear of the Ponca Tribe. With this statue, we honor all native peoples who met injustice and intolerance with dignity and determination.”Footnote ²⁴

A visit to Statuary Hall should not be required to learn about Chief Standing Bear. His struggle tells the sordid tale of federal malfeasance against Indians; however, the saga also shows the law can provide protection to the most marginalized of groups. Chief Standing Bear’s struggle shows the courage and fortitude of a single individual can make a difference. Chief Standing Bear’s noble quest would be a valuable addition to the school curriculum.

19.3 Legal Education and Tribal Sovereignty

Regardless of whether one believes Indian history should be included in the K-12 curriculum, federal Indian law should be included in the law school curriculum. Indians are embedded in the fabric of the Constitution, from the debates surrounding its ratification to its very text. Nonetheless, most law school graduates lack an embryonic understanding of tribal sovereignty. As a result, federal judges deciding Indian law issues usually have no background knowledge of the subject and have not delved into the history surrounding federal Indian law’s development. This puts tribal interests at a significant disadvantage because they have to educate the judge not only about the immediate issue before the court but oftentimes about the very meaning of tribal sovereignty. For this reason, Canada’s Truth and Reconciliation CommissionFootnote ²⁵ recommended law schools require students to take a course on Indigenous rights. Mandating American law students take a seminar exploring the basics of federal Indian law would go a long way toward increasing awareness and understanding of tribal sovereignty. This is clear from recent Supreme Court jurisprudence.

Three current Supreme Court Justices have a deep understanding and appreciation of tribal sovereignty. Justice Neil Gorsuch served on the federal Tenth Circuit Court of Appeals which routinely hears Indian law cases. Justice Sonia Sotomayor had no Indian law experience before joining the Supreme Court. Accordingly, she made it a point to independently study federal Indian law.Footnote ²⁶ Justice Elena Kagan also had limited exposure to Indian law prior to serving on the Supreme Court. However, while dean of Harvard Law School, Justice Kagan said, “Federal Indian law is an important and rapidly expanding field, and I believe Harvard has an obligation to support research and teaching in this area.”Footnote ²⁷ These Justices have consistently issued opinions respecting tribes’ existence as governments.

Two recent tribal treaty rights cases evince these Justices’ respect for tribal sovereignty. In 2019, a case reached the Supreme Court about whether Wyoming’s statehood terminated the Crow Tribe’s treaty rights to hunt in Wyoming.Footnote ²⁸ Justice Sotomayor summarized how tribal treaty rights operate:

Congress had never expressly abrogated the treaty nor did any other event terminate the Crow’s hunting rights. Therefore, Justice Sotomayor and four other Justices, Gorsuch and Kagan among them, ruled in favor the Crow.Footnote ³⁰

Justice Gorsuch authored a historic affirmation of tribal sovereignty with his 2020 opinion in McGirt v. Oklahoma.Footnote ³¹ The facts of the case are terrible. Jimcy McGirt sexually assaulted a young child and was convicted of the crime by Oklahoma. McGirt subsequently appealed. The basis of his appeal was not innocence; rather, he contested the state’s jurisdiction to prosecute him. As an enrolled citizen of the Seminole Nation of Oklahoma, McGirt argued his crimes were committed within the borders of the Muscogee Reservation as set forth in an 1866 treaty with the United States, so as an Indian the state lacked jurisdiction because McGirt was an Indian within Indian country.

While the case only immediately addressed which government could prosecute a pedophile, the implications of the decision were substantial. Recognizing the Muscogee Reservation would affirm all the tribes in eastern Oklahoma have reservations meaning all of eastern Oklahoma is reservation land. To be clear, much of eastern Oklahoma was already Indian country; however, historical practices in the state had de facto diminished tribal authority. Oklahoma and others opposed to tribal interests claimed recognizing the existence of reservations would result in chaos due to Indian country’s peculiar jurisdictional rules.

The Muscogee Nation prevailed at the Tenth Circuit because under established precedent only Congress has the power to disestablish a reservation. The leading case on reservation disestablishment set forth three considerations to make the determination: the text of the relevant legislation governing the reservation, contemporary events, and demographics.Footnote ³² The Muscogee Nation, who unfortunately was forced to use a pedophile as their plaintiff, argued no act of Congress ever disestablished the reservation. Oklahoma conceded as much but claimed combining all the historical anti-Indian legislation resulted in reservation disestablishment through “death by a thousand cuts.”Footnote ³³ Similarly, Oklahoma noted that when the relevant legislation was passed, the popular belief was Indian tribes would disappear in the near future. Oklahoma also emphasized nearly 90 percent of the people who call eastern Oklahoma home are non-Indians. Most boldly, Oklahoma pasted a picture of the Tulsa skyline to assert skyscrapers and contemporary industries do not belong on Indian reservations.Footnote ³⁴

Four Justices, including Sotomayor and Kagan, joined Gorsuch’s opinion affirming the existence of the Muscogee Reservation. The opinion begins by declaring, “On the far end of the Trail of Tears was a promise.”Footnote ³⁵ Justice Gorsuch walked through the history and the law. Justice Gorsuch recognized Congress performed several actions antithetical to Creek sovereignty, “But whatever the confluence of reasons, in all this history there simply arrived no moment when any Act of Congress dissolved the Creek Tribe or disestablished its reservation.”Footnote ³⁶ Justice Gorsuch said Oklahoma was attempting to “substitut[e] stories for statutes”Footnote ³⁷ and concluded his opinion by stating:

With those words, a majority of the Supreme Court chose to uphold the law rather than giving way to the “‘practical advantages’ of ignoring the written law.”Footnote ³⁹ An appreciation of history and Indian law led to a tribal victory.

However, the Supreme Court abandoned historical context and fundamental principles of Indian law two years later in a McGirt sister case.Footnote ⁴⁰ The Court’s shift is explained by Justice Ruth Bader Ginsburg’s passing and replacement by Justice Amy Coney Barrett. Justice Barrett had little Indian law experience prior to joining the Supreme Court; accordingly, she was seen as the swing vote. The Indian law community hoped Justice Gorsuch’s expertise in the field would influence her. After all, Justice Gorsuch was appointed by the same president as Justice Barrett. Nonetheless, she fell in line with the four McGirt dissenters in Oklahoma v. Castro-Huerta.Footnote ⁴¹

Castro-Huerta arose because Oklahoma opposed the Court’s recognition of tribal sovereignty. In response, Oklahoma filed forty-five petitions to overturn McGirt. All were declined. However, the Court granted one of the petitions to address a single issue: Does Oklahoma have concurrent jurisdiction with the United States to prosecute non-Indians who commit crimes against Indians within Indian country?

The answer was obviously “no.” The Supreme Court had said as much on multiple occasions. Every Indian law treatise said states lack jurisdiction over reservation crimes absent federal legislation to the contrary. Moreover, Oklahoma declared in its 2020 brief opposing McGirt that if the Muscogee Reservation was affirmed, “The State would lack jurisdiction to prosecute any crime involving an Indian (whether defendant or victim) in eastern Oklahoma.”Footnote ⁴² Following McGirt, Oklahoma dedicated a webpage to the case and posted: “In 2020 the U.S. Supreme Court overturned the conviction of child rapist Jimcy McGirt on the grounds that the Creek Nation’s reservation was never disestablished for criminal jurisdiction. State courts no longer have the authority to prosecute crimes committed by or against Oklahomans who are also tribal members.”Footnote ⁴³ The dearth of legal authority for Oklahoma’s position prompted Justice Gorsuch to ask Oklahoma during oral argument, “[A]re we to wilt today because of a social media campaign?”Footnote ⁴⁴

Notwithstanding, Justice Kavanaugh, writing for four other Justices, sided with Oklahoma. The majority abandoned Worcester’s guide star that state authority is presumptively invalid on reservations by declaring, “Since the latter half of the 1800s, the Court has consistently and explicitly held that Indian reservations are ‘part of the surrounding State’ and subject to the State’s jurisdiction ‘except as forbidden by federal law.’”Footnote ⁴⁵ This statement ignores the plain text of the Constitution, treaties, and federal policies going back to George Washington. This statement reveals five Justices do not know or are unbothered that during the latter half of the 1800s, the United States was actively attempting to destroy tribal governments and Indigenous cultures – a policy expressly repudiated with the Indian Reorganization Act of 1934. Furthermore, every president and Congress since 1975 has sought to empower tribal self-government – an ideology at odds with the assertion that tribes are simply part of the surrounding state. However, the majority seemed to care less about history or the law than expanding state authority over tribal governments.

In dissent, Justice Gorsuch excoriated the majority, writing, “Where our predecessors refused to participate in one State’s unlawful power grab at the expense of the Cherokee, today’s Court accedes to another’s.”Footnote ⁴⁶ Justice Gorsuch noted the majority’s opinion was detached from history or any legal authority. He pointed out the majority’s erroneous holding was premised on a fundamental misunderstanding about what tribes are: “Tribes are not private organizations within state boundaries. Their reservations are not glorified private campgrounds. Tribes are sovereigns.”Footnote ⁴⁷ According to Justice Gorsuch, the majority’s failure to acknowledge black letter law and more than 200 years of history makes Castro-Huerta “an embarrassing new entry into the anticanon of Indian law.”Footnote ⁴⁸

19.4 Legal Ethics

The Supreme Court’s opinion in Castro-Huerta is part of a larger issue. Federal Indian law remains trapped in the 1800s. During the 1800s, federal Indian policy was designed to obliterate tribal existence and was driven by the sentiment “The only good Indian is a dead Indian.”Footnote ⁴⁹ Nevertheless, courts unblinkingly cite cases predicated on antiquated ideas about Indians and tribes. Many federal Indian law practitioners know this.

For example, in 2011, then Acting Solicitor of the United States, Neal Katyal, addressed the Federal Bar Association’s Indian Law Section. Katyal noted the Solicitor General’s Office has a long history of involvement in Indian affairs, and “it is also important to remember that we in the SG’s office have made mistakes.”Footnote ⁵⁰ Katyal pointed out two examples of malfeasance in the Solicitor’s 150-year history of Indian law cases. The first case he mentioned was United States v. Sandoval;Footnote ⁵¹ he stated, “[T]he government employed gross stereotypes to disparage the intelligence and competency of the Pueblo Indians.”Footnote ⁵² Next, Katyal discussed the Solicitor’s role in Tee-Hit-Ton Indians v. United States.Footnote ⁵³ Katyal quoted the following passage from the Solicitor’s argument against Indian property rights: “[T]he concept of title by discovery was based upon the idea that lands occupied by heathens and infidels were open to acquisition by the Christian nations.”Footnote ⁵⁴ The United States Supreme Court ultimately adopted the Acting Solicitor’s position in both cases. Katyal said, “For our office, these cases serve as a reminder that there are limits to the extent of our advocacy for the government and that we must never cross the line into prejudice and racism.”Footnote ⁵⁵ Despite the attorney who argued the cases admitting both decisions are based upon lies and stereotypes, Sandoval and Tee-Hit-Ton remain binding precedent.

Relying on racist precedent violates lawyers’ ethical obligations. Lawyers are forbidden from engaging in false and deceptive behavior. Lawyers are required to correct false information when they become aware of the information’s falsity; moreover, lawyers cannot knowingly incorporate a false statement into their argument. Even an omission can constitute a breach of the lawyer’s duty to seek the truth. Ethical duties prevent lawyers from engaging in behavior that discriminates on the basis of race or national origin because such conduct “is prejudicial to the administration of justice.”Footnote ⁵⁶ Judges have similar ethical obligations as they must “strive to maintain and enhance confidence in the legal system.”Footnote ⁵⁷

Based upon ethical obligations adopted by bar associations throughout the United States, tribes engaged in litigation should call out the factual errors and racism in federal Indian law jurisprudence. For example, if someone cites Oliphant to argue against tribal jurisdiction, the tribal representative should point out the factual inaccuracies in the opinion. Likewise, tribal proponents should ask their adversaries if they actually believe the descriptions of Indians provided in the Johnson, Cherokee Nation, and Worcester, Rogers, Crow Dog, Kagama, and other foundational cases. Assuming the opposing council does not believe Indians actually fit the depictions of them provided in the jurisprudence, the opposing council should be forced to explain why it is okay to rely on a case rooted in anti-Indian racism. Until courts acknowledge federal Indian law jurisprudence is filled with errors and sentiments that would be impermissible in any other line of cases, tribes will face a significant barrier to justice.

Congress’ assertion of plenary power over Indian affairs is a prime example of the trouble with Indian law jurisprudence. In 1886, the Supreme Court’s decision in KagamaFootnote ⁵⁸ expressly rejected the Constitution’s Commerce Clause as a source of authority over internal tribal affairs. Kagama instead permitted Congress to assert authority over tribes because of Indians’ weak, helpless, and dependent status. But a century later, the Supreme Court reversed itself, declaring, “[T]he central function of the Indian Commerce Clause is to provide Congress with plenary power to legislate in the field of Indian affairs.”Footnote ⁵⁹ The Court blithely goes along with this sentiment although there is no textual support for this understanding of the Commerce Clause. The Court should be compelled to explain when and how the plain text of the Commerce Clause transformed into a grant of plenary power over Indian tribes.

Justice Clarence Thomas appears to want an explanation for Congress’ plenary power over Indian tribes. Justice Thomas is not known for being a supporter of Indigenous rights, but he has raised ethical questions relating to the Court’s revisionist reading of the Indian Commerce Clause in three separate concurrences. Justice Thomas has said, “The Court utterly fails to find any provision of the Constitution that gives Congress enumerated power to alter tribal sovereignty.”Footnote ⁶⁰ More recently, Justice Thomas wrote, “[U]ntil the Court rejects the fiction that Congress possesses plenary power over Indian affairs, our precedents will continue to be based on the paternalistic theory that Congress must assume all-encompassing control over the ‘remnants of a race’ for its own good.”Footnote ⁶¹ While Justice Thomas is certainly correct, his solution to the Court’s ahistorical reading of the Commerce Clause and tribal sovereignty is likely to eliminate tribes – the judicial equivalent of amputating an arm to remedy a broken fingernail.

Justice Gorsuch appears to have an issue with relying on racist jurisprudence in the twenty-first century. He made this point in United States v. Vaello Madero.Footnote ⁶² The case was about whether the Constitution requires Congress to provide Puerto Rican citizens with the same Social Security benefits as state citizens. The Court determined it did not based on precedent. Justice Gorsuch agreed but penned a concurrence questioning the jurisprudence governing the American Territories. He noted the precedent on the territories, known as the Insular Cases, “can claim support in academic work of the [late 1800 and early 1900s], ugly racial stereotypes, and the theories of social Darwinists.”Footnote ⁶³ He concluded by declaring, “[T]he time has come to recognize that the Insular Cases rest on a rotten foundation. And I hope the day comes soon when the Court squarely overrules them.”Footnote ⁶⁴ Perhaps Justice Gorsuch can convince his fellow Justices the same is true for contemporary federal Indian law jurisprudence.

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Many of the challenges tribes face are a consequence of ignorance. As people learn about tribal history, tribes will be viewed as nations, and individual Indians as citizens of tribal governments rather than as a racial group. This is particularly important for judges because their perception of whether tribes are governments alters tribal sovereignty and the opportunities available to those in Indian country. Furthermore, those engaged in Indian law litigation should be cognizant of the stereotypes embedded in federal Indian law jurisprudence. If the tropes underscoring the decision are unacceptable according to contemporary standards, it may be time to reassess the merits of the case.

The solution to Indian country’s problems is not more federal programs or federal oversight. The key to unlocking Indian country’s potential is greater tribal autonomy. Tribes, like all governments, need the ability to punish criminals, levy taxes, and regulate their lands. Under existing law, tribes lack the sovereignty to exercise these essential governmental functions. Hence, tribes struggle to exercise their right to self-govern.

Although many question tribes’ ability to act as governments, tribes have long histories of self-governance. Indeed, tribes existed as governments long before the United States was formed. Tribes developed laws and institutions to effectively manage their lands, resources, and the people upon them. These Indigenous institutions facilitated transcontinental trade and enabled Indians to enjoy high standards of living.

European arrival upset traditional Indigenous ways. Drastic depopulation brought about by disease and warfare caused immense hardship for tribes. However, tribes seized the opportunities that arose. They formed new alliances and embraced the European items that made their lives easier, such as horses, guns, and metal tools. These European items enabled Indians to resist colonization.

But as time marched on, tribal populations fell to disease as the United States’ population soared. Tribes continued to fight to preserve their lands, cultures, and governments. In treaties, tribes agreed to exchange their land for guarantees from the United States. Tribes kept their end of the bargain. The United States has seldom honored its word.

Consequently, reservations have been mired in poverty for over a century. While federal policy has oscillated between tribal destruction and empowerment, excessive federal regulation of tribal affairs has remained constant. Tribes endure levels of federal regulation that exist nowhere else in the United States. Moreover, these regulations cannot be justified by the Constitution or logic. These regulations serve no purpose other than impeding tribal autonomy.

Tribes deserve the right to govern their lands as nations. This right was secured in numerous treaties, and in the words of Justice Hugo Black, “Great nations, like great men, should keep their word.”Footnote ¹