University of Colorado Law Review
Volume 81, Issue 4, Fall 2010
FOREWORD: THE NEXT GREAT GENERATION OF AMERICAN INDIAN LAW SCHOLARSHIP
The authors whose articles appear in this issue participated in the University of Colorado Law Review Symposium: “The Next Great Generation of American Indian Law Judges,” which was held on January 29–30, 2010, at the University of Colorado Law School. Speakers at the Symposium included academics, practitioners, and federal, state, and tribal court judges. Panels addressed topics of major concern in the field of American Indian law, including civil and criminal jurisdiction in Indian country, tribal sovereign immunity, conflicts between state and tribal governments, and interpretation of tribal statutes and constitutions, among others. This American Indian law gathering was distinguished from the many others that occur throughout the country every year by its explicit aim of engaging the judiciary on the question of how academics and practitioners might provide knowledge that will improve judicial decision-making. Of course, that statement begs an important question: What does it mean to improve judicial decision-making in this field? What, in other words, constitutes a “great” American Indian law judge?
There may be no easy consensus on that point, and yet there appears to be a majority view among scholars that, as a general matter, the federal courts have not been great lately. This criticism takes different forms. Dean David Getches has argued that the Supreme Court has abandoned core foundational principles in favor of ad-hoc decision making and has been influenced by distinct judicial agendas, including the promotion of states’ rights.1 Professor Robert Williams has taken the criticism further, arguing that even the core Indian law principles are informed by discriminatory values and that the only way to make Indian law great is to reconsider the enterprise from the roots up.2 Even the late Professor Philip Frickey, at one time an optimist about judicial capacity to update federal Indian law in ways that did not abandon core values about tribal sovereignty,3 appeared to despair in his last published articles. In the Harvard Law Review, Professor Frickey wrote:
[F]or the past three decades, the highest Court of the United States has been on a decisional path that undercuts tribal prerogatives, and recently several Justices openly challenged the notion that tribes should be recognized as self-governing in the first place. Whatever the appropriate answers are for America, it is exceedingly doubtful that these judicial solutions are among them. An appropriate first step would be a judicial acknowledgment of these realities.4
Definitions of judicial greatness might elude us, but Professor Frickey has suggested that a first step away from its opposite would be to assist judges in acquiring knowledge about the realities of Indian law disputes.5 Without rigorous and grounded research about tribal institutions, tribal courts, and the contexts of American Indian law, “the Supreme Court and inferior federal courts will continue to fill in gaps in knowledge by intuition and downright wrongheaded assumptions.”6 Each of the following articles heeds Professor Frickey’s call to fill those gaps. Or, as Chief Justice John Marshall might have put it, collectively these articles inform us about “the actual state of things”7 in American Indian law today.
In his Keynote Address, Dean Kevin Washburn urges us to start the process of educating judges about the realities of Indian law at the earliest possible stages. A proper Indian law education begins, he argues, in elementary school, when ideas about the structure of this country are cemented and naturalized. Appropriately, Dean Washburn also highlights Judge William Canby of the Ninth Circuit as a model of a great American Indian law judge in contemporary times. Judge Canby took a singular interest in the field, learning it first as a law clerk and then undertaking his own self-guided course of study. Today, Judge Canby remains one of the foremost experts in American Indian law. Dean Washburn observes, however, that Judge Canby’s path is rare. For most people, ideas about our government’s structure are set much earlier. Dean Washburn concludes that for tribes to take their place as the third sovereign in the minds of most Americans, Indian law education must begin long before law school.
In Resisting Federal Courts on Tribal Jurisdiction, Professor Matthew Fletcher offers a highly original and provocative argument about the terms of tribal court cooperation with federal courts. First, Professor Fletcher offers historical context to support his conclusion that tribes have not consented to federal judicial review of tribal court decisions. Next, Professor Fletcher elaborates a theory of limited tribal resistance to federal control over tribal courts. Finally, Professor Fletcher argues that the forms of limited resistance that he advocates will ultimately strengthen tribal investment in the American constitutional polity. Throughout the paper, Professor Fletcher cites to tribal court decisions and describes the disruptive effects that federal law has had on the administration of justice in Indian country. Professor Fletcher thus combines theory with practice, illuminating the ways in which federal judges have, unwittingly, alienated tribes and tribal members from the promise of the rule of law.
Professor Carole Goldberg, Troy Eid, and Carrie Covington Doyle expose the de facto unfairness of different forms of Indian country jurisdiction. In her thoughtful article, In Theory, In Practice: Judging State Jurisdiction in Indian Country, Professor Goldberg demonstrates that state jurisdiction pursuant to Public Law 280 has failed to deliver a fair and effective system of justice in Indian country. She relies on extensive data gathered in a multi-jurisdictional survey assessing the quality of law enforcement in Public Law 280 and comparator states. Professor Goldberg also challenges the conclusions of a recent study that endorsed the view that state jurisdiction resulted in greater economic health for tribes. Both aspects of Professor Goldberg’s article highlight the importance of rigorous empirical study in Indian country that is also informed by the complexities of American Indian law. In their article, Separate But Unequal: The Federal Criminal Justice System in Indian Country, Mr. Eid and Ms. Covington Doyle take on the Major Crimes Act, arguing that it is unconstitutional in spirit and practice. Emphasizing in particular the law’s harsh effects on tribal member juvenile offenders, the authors urge legislators to reconsider the heavy-handed federal role in Indian country criminal law enforcement. They also focus on Congress’s questionable authority to pass the Major Crimes Act and include original research about the Act’s legislative history.
Taking a similarly grounded approach, Professor Jill Tompkins explores the Indian Child Welfare Act and its contemporary applications. In Finding the Indian Child Welfare Act in Unexpected Places: Applicability in Private Non-Parent Custody Actions, Professor Tompkins relies on statistics about urban American Indian populations and the nature and causes of custody disputes to conclude that the ICWA should apply to many private non-parent placements. Like the other authors in this volume, Professor Tompkins does not look solely at the doctrinal formulations of American Indian law. She also asks important questions about the terrain in which the law is being applied and provides rigorous and appropriate data to aid in the law’s interpretation.
Finally, this issue concludes with my contribution, Tribal Civil Judicial Jurisdiction Over Nonmembers: A Practical Guide for Judges. This was drafted in response to a consensus among the Symposium participants that a concise guide to the law governing tribal court civil jurisdiction over nonmembers (i.e., persons who are not members of the governing tribe) would help federal and tribal judges as well as practitioners. The article includes a thorough review of the applicable Supreme Court cases as well as an analysis of all published lower federal court cases decided since 1997. It attempts to make the law less bewildering and to clarify the parameters for approving exercises of tribal civil jurisdiction.
All of these articles take seriously the admonition to provide courts with relevant information about the contexts of American Indian law. The articles also share common themes of constructive engagement. Whether the prescription is resistance or reform, the goals, in the end, are to make the law work as well as it can for everybody—judges, litigants, and the broader communities affected by American Indian law. Those goals may be ambitious, particularly in the context of a body of law whose origins lie in the questionable conceit of conquest, as Chief Justice Marshall noted long ago:
It is difficult to comprehend the proposition, that the inhabitants of either quarter of the globe could have rightful original claims of dominion over the inhabitants of the other, or over the lands they occupied; or that the discovery of either by the other should give the discoverer rights in the country discovered, which annulled the pre-existing rights of its ancient possessors. . . . But power, war, conquest give rights, which, after possession, are conceded by the world . . . .8
Just after this ambivalent acceptance of the powers “conceded by the world,” Chief Justice Marshall turned to the “actual state of things,” as referenced above.9 American Indian law thus has an historic tradition, if not a pressing obligation, to update repeatedly its assessment of the state of things. These articles do just that, but they do so with the understanding that the conceit of conquest only went so far, preserving as it did American Indian tribal prerogatives to remain separate, distinct, self-governing nations.10 The actual state of things included, and continues to include, that background principle. The Next Great Generation of American Indian Law Judges, whatever other diverse characteristics they are sure to have, will embrace that core and complicated notion.
1. See David H. Getches, Conquering the Cultural Frontier: The New Subjectivism of the Supreme Court in Indian Law, 84 Cal. L. Rev. 1573 (1996); see also David H. Getches, Beyond Indian Law: The Rehnquist Court’s Pursuit of States’ Rights, Color-Blind Justice and Mainstream Values, 86 Minn. L. Rev. 267 (2001).
2. See Robert A. Williams, Jr., Like a Loaded Weapon: The Rehnquist Court, Indian Rights, and the Legal History of Racism in America 58 (2005).
3. See Philip P. Frickey, Congressional Intent, Practical Reasoning, and the Dynamic Nature of Federal Indian Law, 78 Cal. L. Rev. 1137 (1990); see also Philip P. Frickey, Domesticating Federal Indian Law, 81 Minn. L. Rev. 31 (1996).
4. Philip P. Frickey, (Native) American Exceptionalism in Federal Public Law, 119 Harv. L. Rev. 431, 490 (2005).
5. See id.; see also Philip P. Frickey, Transcending Transcendental Nonsense: Toward a New Realism in Federal Indian Law, 38 Conn. L. Rev. 649, 660–65 (2006) (describing the need for scholarship that interrogates the law and life on the ground of American Indian law disputes).
6. Frickey, Transcending Transcendental Nonsense: Toward a New Realism in Federal Indian Law, supra note 5, at 665.
7. Worcester v. Georgia, 31 U.S. (6 Pet.) 515, 543 (1832).
8. Id.
9. Id.
10. Id. at 559–60:
The Indian nations had always been considered as distinct, independent political communities, retaining their original natural rights, as the undisputed possessors of the soil, from time immemorial, with the single exception of that imposed by irresistible power, which excluded them from intercourse with any other European potentate than the first
discoverer of the coast of the particular region claimed . . . . The very term “nation,” so generally applied to them, means “a people distinct from others.” . . . The words “treaty” and “nation” are words of our own language, selected in our diplomatic and legislative proceedings, by ourselves, having each a definite and well understood meaning. We have applied them to Indians, as we have applied them to the other nations of the earth. They are applied to all in the same sense.