The Implications of a Supreme Court Decision in McGirt v. Oklahoma for the Integrity of Indian Reservations

As a result of Justice Neil Gorsuch’s recusal, the U.S. Supreme Court has reached a deadlock in Sharp v. Murphy.[1]  Possibly to sidestep Gorsuch’s conflict of interest arising from the case’s procedural history in the Tenth Circuit, the Court granted certiorari at the end of last year in McGirt v. Oklahoma,[2] which raises similar questions about the jurisdictional status of territory historically claimed by the Muscogee (Creek) Nation. Oral argument in McGirt has been rescheduled for May 11, 2020, when the nine justices of the Supreme Court will have to reckon with the historical and doctrinal issues underlying both cases. 

According to the petitioner, the question presented is “whether Oklahoma courts can continue to unlawfully exercise, under state law, criminal jurisdiction in Indian Country over Indians accused of major crimes enumerated under the Indian Major Crimes Act — which are under Federal criminal jurisdiction.”[3] The respondent, the State of Oklahoma, puts it another way: “Whether the State of Oklahoma has jurisdiction to prosecute crimes committed by a tribal member on land within the 1866 territorial boundaries of the Creek Nation in the former Indian Territory of eastern Oklahoma.”[4]

As the discrepancy between the two questions demonstrates, the underlying issue is whether the place of the petitioner’s crime is currently Indian country or not. At stake is jurisdiction over roughly half of Oklahoma (including Tulsa), and more importantly, the potential for the Supreme Court to decide whether an Indian reservation has been disestablished (or diminished) solely on the basis of demographic change.  Historically, even if the demographic make-up of Indian country has changed (due to the influx of white settlers following allotment, for example), that factor alone has not been sufficient for the court to find disestablishment.[5]

Supreme Court precedents such as Solem v. Bartlett[6] and Nebraska v. Parker[7] have held that Indian reservations can only be diminished by explicit terms in statutes or treaties, or by a clear showing of congressional intent and supportive legislative history. While 1984’s Solem still held open the possibility of de facto diminishment (in which the territory’s loss of “Indian character” could influence a finding[8]), the much more recent ruling in Parkerattempted to put that possibility to rest: “[S]ubsequent demographic history cannot overcome our conclusion that Congress did not intend to diminish the reservation.”[9] Quoting South Dakota v. Yankton Sioux Tribe, the Court stated that “evidence of the changing demographics of disputed land is ‘the least compelling’ evidence in our diminishment analysis.”[10]

Despite clear precedents in the petitioner’s favor, the justices may be reluctant to side with the petitioner because of the practical consequences of doing so.  The State of Oklahoma warned in its brief against the “staggering ramifications” of a change of jurisdiction over the population of 1.8 million in that area.[11] The United States argued as amicus in support of Oklahoma that such a decision “would have great adverse consequences” and would result in “a massive increase in federal law-enforcement presence and responsibilities.[12] The petitioner countered such fears by pointing out that, “[o]n fee land—the only land affected by reservation status—tribal civil jurisdiction over non-Indians is ‘presumptively invalid.’”[13] Furthermore, he argued, “States retain jurisdiction over non-Indians absent specific preemption.”[14]

Traditionally, federal Indian policy has prompted the United States to brief on the side of tribes in cases where tribal self-government and tribal sovereignty are at stake.[15] Under the current administration, however, that traditional role may have changed: in this case and in Sharp v. Murphy, the United States filed amicus briefs in support of the State of Oklahoma and against the interests of the Muscogee (Creek) Nation.[16]  In its amicus brief, the United States posits an argument (shared by Oklahoma) that is hard to reconcile with historical fact: it contends that the Creek reservation was never established to begin with, and therefore, Parker’s test for disestablishment need not be applied.[17]  Not only would the Supreme Court have to overlook the plain language of a series of treaties and statutes[18] to agree with this position, it would also have to reverse the Tenth Circuit’s decision in Murphy v. Royal which held that “Congress has not disestablished the Creek Reservation.”[19]

Considering the apparent difficulties presented on both sides, will the justices try to find a way to distinguish this case from territory at issue Parker and Solem? The United States’ amicus brief asserts that the Muscogee (Creek) Nation as one of the Five Tribes is “not on the ordinary Indian reservation.”[20] According to the United States, Indian territory belonging to the Five Tribes was distinguishable from other Indian reservations because it was “patented . . . in communal fee simple” and was almost “considered an independent country.”[21]  It argued that Congress did not disestablish a Creek reservation because one was never created in the first place; rather, Congress “eliminated” the tribes’ “status” through the “wholly different process of transforming a U.S. territory into a State.”[22] Such euphemistic and antiseptic language not only conceals the historic injustices perpetrated by both state and national governments against the Creek, but also distracts from the real doctrinal issues by ignoring historical evidence of the reservation’s existence.  

The petitioner’s reply[23] and the amicus brief for the Muscogee (Creek) Nation roundly refute the notion that there was no reservation: 

Oklahoma’s claim that a Reservation was never established for the Nation in the Indian Territory is divorced from both text and history. The Treaty of 1866 expressly refers to the Nation’s Territory as a “Reservation.” Art. IX, 14 Stat. 785, 788 (1866). That was no slip of the pen, but rather reflected the defining characteristics of the Creek territory.[24]

Further refuting Oklahoma’s contention that “issuance of a fee patent in 1852 divested the Creek territory of reservation status,” the Muscogee (Creek) Nation responded that “the rule nowhere exists that a tribe cannot possess fee title to a reservation. As the National Congress of American Indians well explains, nineteenth-century reservations rested on various forms of land tenure, with many substantial reservations held by tribes in fee simple.”[25] In addition, neither has “this Court nor Congress . . . deemed title determinative of reservation status.”[26]

If the Court were to find for the State of Oklahoma and hold that a reservation can be diminished or disestablished in the absence of any congressional action or intent, it would create a dangerous precedent that would leave the sovereignty of tribes at the mercy of federal courts.  Justice Thomas, who authored Nebraska v. Parker, may feel some hesitancy in swallowing his own words that “this Court has never relied solely on this third consideration [of demographic change] to find diminishment.”[27] Justice Gorsuch might also balk at overruling Parker, along with the other liberal justices[28] (with the possible exception of Justice Ginsburg[29]).  

After oral argument this May, the justices will be addressing all of these issues and their long-term implications when they decide whether to uphold Parker, overrule it, or find a way to distinguish the case at bar from the Court’s own precedents.

            Esther Jamison is a second-year student at the University of New Mexico School of Law.

[1] Sharp v. Murphy, No. 17-1107 (argued Nov. 27, 2018); Adam Liptak, Supreme Court to Rule on Whether Much of Oklahoma is an Indian Reservation, N. Y. Times, Dec. 13, 2019, v. Murphy was previously known as Carpenter v. Murphy, inter alia, and the case was appealed before the Tenth Circuit as Murphy v. Royal, 866 F.3d 1164 (10th Cir. 2017). 

[2] McGirt v. Oklahoma, No. 18-9526 (filed Feb. 4, 2020).

[3] Brief for Petitioner at i, McGirt v. Oklahoma, No. 18-9526 (filed Feb. 4, 2020) (italics added).

[4] Brief for Respondent at I, McGirt v. Oklahoma, No. 18-9526 (filed Feb. 4, 2020) (italics added). Although McGirt has Creek heritage, he is an enrolled member of the Seminole Tribe, and is not a tribal member of the Muscogee (Creek) Nation. 

[5] See, e.g., Nebraska v. Parker, 136 S. Ct. 1072 (2016); Solem v. Bartlett, 465 U.S. 463 (1984).

[6] Solem v. Bartlett, 465 U.S. 463 (1984).

[7] Nebraska v. Parker, 136 S. Ct. 1072 (2016). 

[8] Bartlett, supra note 6, at 471 (stating that “Where non-Indian settlers flooded into the opened portion of a reservation and the area has long since lost its Indian character, we have acknowledged that de facto, if not de jure, diminishment may have occurred.”).

[9] Parker, supra note 7, at 1081-1082.

[10] Id. at 1082 (quoting 522 U.S. 329, 356 (1998)). 

[11] Brief for Respondent, supra note 4, at 43. 

[12] Brief for United States as Amicus Curiae Supporting Respondent at 4, McGirt v. Oklahoma, No. 18-9526 (filed Feb. 4 2020). 

[13] Brief for Petitioner, supra note 3, at 40 (citing Plains Commerce Bank v. Long Family Land & Cattle Co., 554 U.S. 316, 330, 341 (2008); Montana v. United States, 450 U.S. 544, 565 (1981) (identifying narrow circumstances in which Tribes have jurisdiction over nonmembers on fee land)). 

[14] Id. (citing White Mountain Apache Tribe v. Bracker, 448 U.S. 136, 142-43 (1980)).

[15] See Iowa Mut. Ins. Co. v. LaPlante, 480 U.S. 9, 14 (1987) (“We have repeatedly recognized the Federal Government’s longstanding policy of encouraging tribal self-government . . . This policy reflects the fact that Indian tribes retain attributes of sovereignty over both their members and their territory, to the extent that sovereignty has not been withdrawn by federal statute or treaty. The federal policy favoring tribal self-government operates even in areas where state control has not been affirmatively pre-empted by federal statute.”) (Internal quotations and citations omitted); See, e.g., Brief for United States as Amicus Curiae Supporting Respondent, Dollar General Corporation v. Mississippi Band of Choctaw Indians, 136 S. Ct. 2159 (2016); Brief for United States as Amicus Curiae Supporting Respondent, Michigan v. Bay Mills Indian Cmty., 572 U.S. 782, 134 S. Ct. 2024 (2014); Brief for the United States as Amicus Curiae in Support of Affirmance, Adoptive Couple v. Baby Girl, 568 U.S. 1224 (2013); Brief for the United States as Amicus Curiae in Support of Petitioner, Herrera v. Wyoming, 139 S. Ct. 1686 (2019); Brief of respondent United States, Nebraska v. Parker, 136 S. Ct. 1072 (2016); Brief for the United States as Amicus Curiae in Support of Respondents, South Dakota v. Yankton Sioux Tribe, 522 U.S. 329 (1998).

[16] See Brief for United States as Amicus Curiae Supporting Respondent, McGirt v. Oklahoma, No. 18-9526 (filed Feb. 4 2020); Brief for United States as Amicus Curiae, Sharp v. Murphy, No. 17-1107 (argued Nov. 27, 2018).

[17] Brief for Respondent, supra note 4, at 5. 

[18] Seee.g., Treaty with the Creek Indians, 14 Stat. 785 (1866); The Creek Allotment Act of 1901, 31 Stat. 861. 

[19] Murphy v. Royal, 866 F.3d 1164, 1233 (10th Cir. 2017) (“Applying Solem, we conclude Congress has not disestablished the Creek Reservation. Consequently, the crime in this case occurred in Indian country as defined in 18 U.S.C. § 1151(a)”). 

[20] Brief for United States, supra note 12, at 8 (quoting Census Office, U.S. Dep’t of the Interior, Report on Indians Taxed and Indians Not Taxed 284 (1894)).

[21] Id. at 5.

[22] Id.

[23] Reply Brief for Petitioner at 1, 3-5, McGirt v. Oklahoma, No. 18-9526 (filed Feb. 4, 2020). 

[24] Brief for the Muscogee Creek Nation as Amicus Curiae at 5, McGirt v. Oklahoma, No. 18-9526 (filed Feb. 4, 2020). 

[25] Id. at 7 (quoting Brief for National Congress of American Indians in Support of Petitioner at 10-13.)

[26] Id. (citing In re New York Indians, 72 U.S. 761, 766-68 (1866))

[27] Nebraska v. Parker, 136 S. Ct. at 1081.

[28] Mark Joseph Stern, Why Gorsuch Keeps Joining the Liberals to Affirm Tribal Rights, Slate Mag. (May 20, 2019),

[29] See Carol Goldberg, Finding the Way to Indian Country: Justice Ruth Bader Ginsburg’s Decisions in Indian Law Cases at 1014, 70 Ohio State L. J. 4 (2010), (“From a tribal perspective, a crude win/loss analysis indicates that in the nine cases where she wrote the opinion for the Court, the tribes prevailed in only one and partly prevailed in another.”)


Case Note: Ysleta Del Sur Pueblo v. City of El Paso[1]

by: Felisha Adams[2]


The Federal Court did not have subject matter jurisdiction over a claim by the Ysleta Del Sur Pueblo[3] against the city of El Paso, Texas for lands obtained through a Spanish land grant.  Relief for the quiet title action could be sought under state law but not federal law.  Although Indian law and property law were contained within the court’s analysis, this decision relied heavily on civil procedure.

Facts and Background

The Ysleta del Sur Pueblo (herein referred to as “Tribe”) is a federally recognized Indian tribe and the only Pueblo in the state of Texas. The Tribe was uprooted from the Pueblo of Laguna in New Mexico to its current location. The relocation occurred by the Spanish in the 1600’s.  The Spanish then granted property to the Tribe in or around 1751. Subsequently, the United States and Mexico entered into the Treaty of Guadalupe Hidalgo, which conferred certain property rights to existing Mexican citizens. The Tribe has exercised self-governance since 1682.

The Tribe asserted ownership of 111.73 acres of real property (herein referred to as “Property”).  In doing so, the Tribe sought judicial confirmation of title to the property and to enjoin the City of El Paso (herein referred to as “City”) from claiming any right, title, estate, or interest in the Property. Both the City and Tribe motioned for summary judgement.


The Federal District Court granted a motion to dismiss in favor of the City solely on subject matter jurisdiction. The rest of the City’s motion was denied. The Tribe’s motion was dismissed without prejudice.  The property issue was not resolved in favor of the Tribe due to a procedural matter.

Relevant Law

This Indian property claim is a unique situation, given most tribes are not expected to be hailed into a state court.[4]  The Court ruled in favor of the City, relying on the areas of property law and Indian law principles.

Generally, the jurisdiction of federal courts is limited to powers authorized by the Constitution and by statue.[5]A case may be dismissed by a court that lacks subject matter jurisdiction[6]. A motion for dismissal for lack of subject matter may be made under Fed. R. Civ. P. 12(b)(1). For the Federal Court to exercise subject matter jurisdiction in this matter, the Tribe must establish (1) they are an Indian tribe; (2) a civil matter in controversy; and (3) that the matter arises under the Constitution, laws, or treaties of the United States.[7]

First, declaratory relief must be premised on an independent cause of action because a declaratory judgement is only a procedural device.[8]  A request to quiet title is an independent cause of action for declaratory relief.[9]  There are no federal quiet title causes of action, thus quiet title actions must be settled under state law.[10]

Second, as recognized by Congress, claims for Indian title through an explicit provision in a treaty or statute, and aboriginal title to land occupied by Indians since time immemorial, both fall exclusively under federal jurisdiction.[11] The Pueblo Lands Act of 1924 applies to New Mexico Pueblos.[12]


The primary issue was whether the third element of a claim arising under the Constitution, laws, or treaties of the United States was met.  The Tribe asserted that the Court had federal subject matter jurisdiction over its property claim based on the Tribe’s Indian status and non-aboriginal right of occupancy rights provided by the Treaty of Guadalupe Hidalgo.[13] The Court found there was not a federal question because (1) the cause of action may be resolved under state law, and (2) the Property is not a federally derived right, nor does it involve a federal issue.[14]

The Tribe’s cause of action for declaratory relief is based on state law.  The Court cited to case law that explained that the Treaty of Guadalupe Hidalgo does not explicitly or impliedly provide for private action.[15] Additionally, the Court reasoned that the case law sufficiently established that a claim dependent on a treaty does not automatically establish federal jurisdiction.[16]  The Tribe did not establish any other federal law or treaty cause of action that arose under the federal question doctrine.[17]  Thus, without more than the mere presence of a treaty to raise a federal question, the Tribe must raise a quiet title claim under state law.

The Tribe’s asserted right to the Property is not a federally derived Indian property right.  The Court distinguished the Tribe’s claim from the successful Indian title claim in Oneida Indian Nation v. City  of Oneida in three ways. First, the Tribe could not establish aboriginal title because of the Tribe’s relocation and land grant by Spain proved that they did not occupy the Property since time immemorial.[18] Second, the non-aboriginal right of occupancy derived from another sovereign and was not guaranteed by a United States treaty or statute.[19]

Third, there were no subsequent congressional acts to recognize or secure Property rights for the Tribe in the Treaty of Guadalupe Hidalgo.[20]  The Supreme Court has stated that matters relevant to the Tribe’s claim are solely within Congress’s power.[21]  Here, there were no claims by the Tribe showing subsequent negotiations with the United States that would have established special property rights similar to other tribes such as the Apache, Navajo and Ute Indians.[22] Further, since El Paso is not in New Mexico, the City is not subject to quiet title claims under the Pueblo Lands Act of 1924.[23]  The Nonintercourse Act may apply to this case, however the Tribe did not assert a Nonintercourse Act claim in its original pleading, and so the Court prohibited a new claim during the summary judgment stage in accordance with Fed. R. Civ. P. 15(a).[24]  Thus, without congressional recognition or guarantee, the Tribe did not establish federally derived Property rights.


The Tribe’s quiet title action does not arise under federal law because the controversy was not provided relief by the Treaty of Guadalupe Hidalgo nor any federal law.  The Tribe does not have a federally derived property right because Congress did not exercise its power to recognize or secure the Tribe’s right to the Property under the Constitution, laws, or treaties of the United States.  Without a federal right, there was no federal subject matter jurisdiction.  


The Treaty of Guadalupe Hidalgo does not explicitly provide Indians with a federal cause of action against states because the treaty does not have federally recognized or secured property rights.  For a federally recognized Indian tribe to bring an aboriginal or non-aboriginal Indian property controversy in a federal court, the Indian tribe must show that their property right is recognized and secured by the Constitution or independent statutes or treaties of the United States.

Lastly, the holding is without prejudice so there may still be an opportunity for the Tribe to establish a valid property right under federal jurisdiction, especially under subsequent federal statutes.  Additionally, there is no mention of any federal trust responsibilities, Indian policy, or other property principles such as reliance.  This case note is limited to the information specific to the case.   

[1] Ysleta Del Sur Pueblo v. City of El Paso, No. EP-17-CV-00162-DCG, 2020 U.S. Dist. LEXIS 6592 (W.D. Tex. Jan. 15, 2020).

[2] Felisha Adams is a second-year law student at the University of New Mexico School of Law. Felisha graduated magna cum laude from Diné College with a BA in Business Administration and Tribal Economic Development and is a proud PLSI alumni.  Felisha is a member of the Navajo Nation who came from Iyanbito, NM to Albuquerque, NM to obtain an Indian law certificate in addition to her Juris Doctor. Her future plans include applying her business, cultural, educational, and legal experience towards supporting sovereignty and tribal economic development.

[3] For more information about Ysleta del Sur Pueblo visit their website at

[4] See Worcester v. Georgia, 31 U.S. 515 (1832) (ruling that state laws could not be imposed on Indian nations).

[5] Ysleta Del Sur Pueblo, supra note 1, at ¶ 4-5.

[6] Id

[7] Id. at 7-8

[8] Id. at 10-11.

[9] Id

[10] Id

[11] Id. at 14-17; See also Oneida Indian Nation v. Cty. of Oneida, 414 U.S. 661, 663 (1974) (holding that Indian title is a matter of federal law and can only be extinguished with federal consent). 

[12] Id. at 26.

[13] Id. at 3.

[14] Id. at 10.

[15] Id. at 10-13.

[16] Id. at 11-12.

[17] Id. at 13.

[18] Id. at 17-18.

[19] Id. at 18-19.

[20] Id. at 19-20.

[21] Id. at 21-22.

[22] Id. at 24.

[23] Id. at 26.

[24] Id. at 27-28.


Law of Indigenous Peoples Paper Topic: Max Spivak

Law of Indigenous Peoples: The Alaska Native Claims Settlement Act and the Tlingit and Haida

            To fulfill the writing seminar co-requisite of the Tribal Law Journal, I completed a brief profile of the Tlingit and Haida Tribes of Alaska and a larger objective review of the Alaska Native Claims Settlement Act (ANCSA). In my studies and work experiences I often see the term “American Indian and Alaska Native.” The distinction given to Natives in Alaska sometimes makes it seem like those communities are unique, and they certainly are, but their role in federal Indian law and tribal law must not be an afterthought. The paper stems from an interest in addressing this trend, an appreciation of the Alaskan land, and with respect to the people who have lived among it since time immemorial. I am not Native, and to ensure that my research and final paper did not take more than it gave back, I will maintain my relationship with Alaska Native communities in my future extra-curricular pursuits.  

            I extensively researched federal Indian law as it relates to Alaska Natives. I compiled relevant legislation (aside from just ANCSA), judicial opinions from all levels of the United States courts, administrative records, books, and scholarly commentaries. To highlight Native Alaskan voices, I incorporated several published interviews and local news articles, too. I conducted my research within the federal Indian law and tribal law stacks at the UNM School of Law library, and I was fortunate to also take advantage of the legal and undergraduate libraries at UCLA (whose law school used to publish the UCLA-Alaska Law Review). I also spent considerable time writing at the USC School of Law library. I relied on internet resources, but I also delved deep into many print materials that had never been digitized. 

To provide some direction for the paper, I drew upon the following Felix Cohen quote: “Like the miner’s canary, the Indian marks the shifts from fresh air to poison gas in our political atmosphere; and our treatment of Indians, even more than our treatment of other minorities, reflects the rise and fall in our democratic faith.”[1] To temper this claim, I introduced David E. Wilkins’ more contemporary response to the metaphor: “[It] “situates indigenous nations in an extremely vulnerable and abused role . . . [notwithstanding] that Native peoples have often been used in federal social experiments.”[2] What drove the paper, and the principle to which Wilkins harkened, is “that while the means we use may be molded by the ends we seek, it is the means we use that mold the ends we achieve.”[3] I then offered the following questions: “If the Indian is the miner’s canary used to measure the levels of toxicity—or even just measuring the density—in the political air, no matter its usefulness, its life is often forsaken for the benefit of others. Is the Alaska Native Claims Settlement Act (ANCSA) indicative of legislative means achieving undesirable ends? Almost 40 years after the passage of ANCSA, do its effects indicate that Native Alaskans were forsaken? What does ANCSA, as the metaphorical mine, and the treatment of Alaska Natives, the metaphorical canary, signal about politics and democracy in the United States?” Throughout the paper I intended to keep the spirit of objectivity and I integrated differing perspectives toward ANCSA’s legacy.  

            The structure of the paper included the tribal profile followed by the ANCSA review. I introduced Alaska Native ethnic communities and geography, in general, and then focused on the history and composition of the Tlingit and Haida tribes, in particular. I addressed the impact of colonization on the people, land, and animals in southeast Alaska, and discussed (publicly available) Tlingit and Haida elements of traditional law and contemporary governance. The following section about ANCSA began with a comprehensive overview of the history of the legislation, its purported purposes, and the immediate impacts upon ratification. One of the very few subjective stances that I made in the paper (for the intention was an objective review), posited that Congress’ desire to rapidly and widely settle hundreds of outstanding Native land claims outside of the court system was short-sighted. The ANCSA section then presented the Sealaska Corporation, the ANCSA-mandated Alaska Native regional corporation representing Tlingit and Haida interests. The next sub-section was titled “Culture and Land” and analyzed ANCSA’s impact on them; the following sub-section was titled “Economics”; and the penultimate sub-section was “Sovereignty” with a sub-sub-section on data sovereignty. 

The conclusion of the paper noted that 

the canary did not have much of a choice; it was not lowered into the mine by its fellow birds, nor did it receive a profit for its work, nor was it thrust into its sacrificial role with such comprehensive research and ongoing political thought. Cohen’s means and ends principle, however, may be more fitting. Often times there are several types of ‘means’ that can be employed, and the chosen means may induce different ends than others.

Still, though, “the corporative means under ANCSA created generational prosperity for many, but were there other means that could have prevented major drawbacks? If so, would they have been as financially lucrative or all-inclusive in settling Native Alaskan land claims? Could each claim have been settled or adjudicated deliberately?” Oil was discovered at Prudhoe Bay in northern Alaska years before ANCSA was passed; the discovery catalyzed lobbyists, energy companies, and politicians, and it hastened the passage of the act. The role of Native Alaskan interests in ANCSA is the crux of widespread debate, and that debate is at the forefront of my ANCSA review. 

[1] Felix S. Cohen, The Erosion of Indian Rights, 1950-1953: A Case Study in Bureaucracy, 62 Yale L.J. 348, 390 (1953).

[2] Felix S. Cohen, On the Drafting of Tribal Constitutions xii (David E. Wilkins ed., 2007).  

[3] Id. (quoting Cohen, supra note 1). 


Law of Indigenous Peoples Paper Topic: Felisha Adams

Felisha Adams, Navajo Business Site Leasing Policies: Measuring Up to Diné Needs? (2019)

This article has been created in response to the perceived difficulty in operating successful businesses on the Navajo Nation and as an effort to support tribal self-governance through economic development. There is well documented case law, history, and policies that evidence how the tribal attempts to provide for self as an individual, and as a nation, have been oppressed by imprudent and inequitable relations with foreigners.  Additionally, decades of statistics exhibit disturbing deprivations of the people, their land, and their resources.  The Navajo Nation is one of many tribes committed to remediate damages and restore hozho, alternatively defined as peace and stability.  The commercial business site leasing enactments by the United States Congress and the Navajo Nation are an affirmative step towards economic resolutions that fit the tribe’s unique needs. The Navajo Nation Trust Land Leasing Act of 2000 delegates business site leasing regulatory authority from the Bureau of Indian Affairs to the Navajo Nation. The Navajo Nation Business Site Leasing Regulations of 2005 accepts and executes the regulatory authority.  The tribe has made progress since 2000, however, economic indicators suggest there is still room for improvement, including policy revision.  

As a tribal member and stakeholder, I find that it is critical to conduct this analysis through an indigenous perspective.  First, the document explores historical to modern interpretations of Navajo fundamental law, governance, land, and commercial development to conceptualize a Navajo standard of economic success. It is through the Navajo standard that legislative acts, business site leasing management, and preparation for the future are analyzed to answer whether current business site leasing policies align with established Diné fundamental law.  The research also focused on determining whether the Act fulfills the Navajo Nation’s needs or if is there a greater need for policy change. In an attempt to provide measurable answers, the document also provides suggestions for ways to improve the process to better provide benefits for stakeholders.  The research for this document consisted of various academic, historical, legal, business, and tribal resources.

As one of the largest tribes in North America, the Navajo Nation’s unique responsibilities are magnified by the court system, land base, political structure, and population size.  The next element of this document explores governmental roles and responsibilities in addition to relevant business site leasing laws.  Contrary to impressions of a system difficult to navigate, much of the information used for this research is available to the public. The public documents regarding governance, demographics, economic development and case law are supplemented by widely acclaimed published material.  The published material was utilized to highlight cultural information specific to  the Navajo Nation as well as indigenous tribes collectively. Lastly, the research is supplemented by the author’s educational and professional background.  The conclusion provides that the tribe’ exercise of authority is beneficial to the Navajos but policy modifications could increase efficiency.


Law of Indigenous Peoples Paper Topic: Krista Thompson

The Fort McDowell Yavapai people are a federally recognized tribe living in central Arizona, amongst saguaro cactuses and along the Verde River. Yavapai people call themselves Abaa’jaa’ or “People of the Sun.” Historically, there were four bands of Yavapai, and the band living in Fort McDowell are known as the southern band or “Kwevkapaya.” Today, there are only three bands, each federally recognized, while the fourth split and joined neighboring bands. My paper addresses how the Kwevkapaya people have taken specific cultural aspects of Yavapai life and codified them into a written exclusion code. The purpose of codifying the code was to protect the integrity of their culture and land from outsiders.

The paper is divided into two parts, the first describes Kwevkapaya culture and history and the second is an analysis of the current tribal exclusion order. Within the first section, I describe internal Abaa’jaa’ social structure, traditional allies and enemies, Kwevkapaya crimes and punishment, and the purpose of traditional law in the contemporary Fort McDowell. Although I have chosen to include legal authorities and well documented points in history, I’ve also included the voices elders who have witnessed the changes of jurisprudence during their lifetime. Although Arizona is home to many other tribes, Yavapai culture remains distinct and this paper describes how the exclusion code was implemented to ensure the Kwevkapaya remain protected from outside threats. 

The second section is a legal analysis of how the current Kwevkapaya governance is shaped to deter outsiders from interfering with our way of life. The first subsection begins with a historical description of governance, tribal jurisdiction and the implemented of enacted law. The second subsection is described as maximizing tribal sovereignty by emphasizing Kwevkapaya jurisprudence. The primary point of analysis is spent distinguishing the differences between the Violence Against Women Act, 18 U.S.C. § 2262 – Interstate Violation of a Protection Order, and the tribal exclusion code. Each of these statutes provide a framework for federally recognized tribes to implement for the protection of themselves from unwanted intruders who pose a threat to their tribal members. During the research process, I consulted with the Fort McDowell chief prosecutor who was very helpful in explaining the administrative process of exclusion, due process issues, confidentiality, and community involvement. This section concludes by determining that Fort McDowell is one tribe who has maximized a simple, yet powerful property right – the power to exclude.

My paper analyzes various aspects of Kwevkapaya jurisprudence and focuses on describing why traditional jurisprudence continues to be practiced in an adversarial setting. The paper cites to various legal authorities and documented points in history, however is organized and written from the perspective of a Kwevkapaya woman. This paper was originally intended to educate non-Yavapai people about the strength of my ancestors and today’s leaders, however I see that the paper could serve as a possible model for other tribes to protect their people from outsiders. Just as the exclusion code was written to protect the integrity of our culture, land, language and people, other tribes may have already chosen to do the same through other ways.

After growing up in Fort McDowell, reading the congressional testimonies of my elders and relearning the history of my own people, the process of writing this paper was an emotional challenge. As law students, we learn to recite facts and rules of law from old cases and various jurisdictions. In this case, I read and analyzed racist descriptions about my people. I’ve cited to history books that included pictures of the bones of my great-great-great grandparents who died in the Skeleton Cave Massacre. I read a Congressional dialogue between my late-grandfather and Senator Ted Kennedy. Lastly, I learned how the Indian Claims Commission quieted title to Yavapai lands for a mere $5 million dollars, which includes some of the most scenic lands in Arizona. Although this paper discusses an exclusion mechanism, most importantly the paper was an eye-opening experience for myself as a Kwevkapaya woman entering the field of law.


Case Note: Kang v. Chinle Family Court (2018)


Kang v. Chinle Family Court involves service of process requirements in divorce proceedings between a Navajo and a non-Navajo spouse in tribal court.[1] This case demonstrates the fundamental Navajo principles of Diné bi beenahaz’áanii as they apply to the jurisdictional laws of Navajo courts over non-Navajo spouses. In this case, the Supreme Court of the Navajo Nation clarified the concept of Navajo customary due process as rooted in the fundamental principle of k’e

Summary of Relevant Facts & Procedural History

On December 27, 2006, Mun Kang (“Petitioner”) and Chasity Kang (“Real Party in Interest” or “RPI”) were married in Virginia.[2] They lived together in Virginia until RPI left the family home with their children on March 18, 2017. On May 15, 2017, RPI filed a petition for divorce in Chinle Family Court (CH-FC-233-17), which she later voluntary withdrew.[3] On June 7, 2017, Petitioner filed for divorce in Virginia state court.[4] RPI was served and initially appeared telephonically, but thereafter she did not participate in the proceedings.[5]  

On June 20, 2017, RPI re-filed her divorce petition in Chinle Family Court (CH-FC-292-17); she did not inform the Chinle court of the previously filed Virginia divorce action nor was she able to serve Petitioner by personal service or certified mail.[6]Instead, RPI informed the court that Petitioner was served by publication in the Navajo Times.[7]

Meanwhile, on November 2, 2017, the Virginia court entered a Final Divorce Degree.[8] Then, on November 3, 2017, RPI moved for default judgement in Chinle Family Court for Petitioner’s failure to plead or otherwise defend against the action.[9]Subsequently, on February 6, 2018, the Chinle Family Court issued a default judgement dissolving the marriage, dividing property, and awarding custody to RPI.[10] However, On May 4, 2018, Petitioner filed a motion to set aside the default judgement alleging fraud/misrepresentation under Rule 60(c)(3) of Navajo Rules of Civil Procedure and a motion for a new trial under Rule 59(g).[11] The Chinle Family Court denied the motion for a new trial but did not rule on the motion to set aside the default judgement.[12]

Consequently, on August 17, 2018, Petitioner filed this suit alleging that the Chinle Family Court refused to rule on the motion to set aside the default judgement, which left him without an adequate remedy at law to address his arguments.[13]


The Supreme Court of the Navajo Nation held that jurisdiction of the Chinle Family Court was improper as the court failed to comply with service of process requirements and Navajo customary due process.[14] Under Rule 4(e)(3) of the Navajo Rules of Civil Procedure, “service by publication shall be made in one of three ways: 1) by publication of the summons in the Navajo Times, OR 2) in the newspapers where the person resides, OR 3) in the newspapers of the person’s last known residence for at least one week for four successive weeks.”[15] Furthermore, the Navajo Nation courts must implement service of process in light of the fundamental principle of k’e.[16]   

Summary of Analysis

In its determination, the Court rejects the Chinle Family court’s arguments that Petitioner was properly served via publication in the Navajo Times.[17] The Court reasoned that Chinle Family court erroneously interpreted Rule 4(e)(3) as requiring publication in the Navajo Times while rendering other avenues of publication as optional.[18] Instead, the Court held that Rule 4(e)(3) is properly interpreted as allowing for any of the three options for service by publication.[19] However, service by publication must be implemented in light of the fundamental principle of k’e, which “fosters fairness through mutual respect.”[20]

The Court further reasoned that the Chinle Family court failed to demonstrate how service via publication in the Navajo Times adequately fulfilled the requirements of procedural due process.[21] Although the Navajo Nation is not subject to due process requirements under federal or statutory Navajo law, Navajo customary due process requires “notice and an opportunity to present and defend a position” because it is recognized that k’e informs the Court’s interpretation of procedural due process.[22] Consequently, the principle of k’e required publication in the newspaper where Petitioner resided instead of the Navajo Times because it was not likely that Petitioner would have seen the publication.[23] Also, k’e required that Petitioner “as a hadane (in-law to the Diné) to be treated with fairness and respect to ensure notice and opportunity to defend.”[24]


Thus, the Court issued a Writ of Prohibition against Chinle Family Court.[25] The default judgement of February 6, 2018 was rendered void ab initio and the Chinle Family Court was ordered to dismiss RPI’s re-filed divorce petition (CH-FC-292-17) for lack of jurisdiction.[26]

Kristen Polk is a second-year law student at the University of New Mexico School of Law. She is a member of the San Carlos Apache Tribe from San Carlos, Arizona. 

[1] Kang v. Chinle Family Ct., No. SC-CV-37-18, 2018 WL 5099218, at *167 (Navajo Sept. 21, 2018). 

[2] Id. at 167. 

[3] Id.

[4] Id.

[5] Id.

[6] Id.

[7] Id.

[8] Id.

[9] Id.

[10] Id.

[11] Id.

[12] Id.

[13] Id. at 168. 

[14] Id. at 169. 

[15] Id. at 168-69. 

[16] Id. at 169. 

[17] Id. at 168-69. 

[18] Id. 

[19] Id.                                        

[20] Id. at 169. 

[21] Id. 

[22] Id.

[23] Id.

[24] Id.

[25] Id. at 170. 

[26] Id. 


Law of Indigenous Peoples Paper Topic: Vanessa Hidalgo

Mexica Sustainability: Respecting Indigenous Knowledge as Law

By Vanessa Hidalgo

There are many legal traditions that have contributed to both the present common law and civil law traditions used in many countries today. These legal traditions portray the past, present and future of our societies. It is important to note that not all legal traditions have been written down, some are performed orally or even passed down through actions. The definition of the word “law” and its implication varies, dependent on the context, culture, society, and history. Law is not always written down and law cannot be simply defined by colonized thoughts and ideologies. Instead, my paper views indigenous knowledge and practices as Mexica law, with a particular focus on Mexica sustainability and the need for those traditions in Mexico City today. It also discusses the impact of colonization and Western ideologies and how that has led to current Mexico City issues of sustainability causing contemporary reflection on how Mexica Indigenous knowledge can be used to combat those issues. 

First, my paper begins with a history of Tenochtitlan and Mexica indigenous legal traditions on sustainability. Second, an explanation of the impact of colonization on the water in the Valley of Mexico. Third, current issues in Mexico regarding sustainability and the resilience of Mexica practices that can combat those issues today. 

Mexica knowledge and practices were imperative for Tenochtitlan sustainability. They were an agricultural society that depended on the fresh spring waters that surrounded them. They had a very complex system put in place that not only respected the land that they lived on but provided them with a lifestyle that encompassed their spiritual beliefs. Although the laws were harsh when it came to wastefulness, it was necessary to create a city that would sustain the Mexica for centuries. Everything that they used was always recycled or put back into the earth protecting their environment from air, land and water pollution. Their lives depended on water and it was what kept their chinampas and their milpa plots flourishing. The creation of their water gods, Tlaloc and Chalchiuhtlicue are a reflection of the importance of water and the need to intertwine their spiritual beliefs with their water use. This gave them a connection with the land that they believed was given to them from the gods. 

Mexica oral stories are also important to view what was important to them and what was law. They believed that the Valley of Mexico was the place their gods placed them, and they did what they could to preserve this important land base. Their oral histories and practices are what was law. Law to the Mexica was not just the ordinances put in place to prohibit wastefulness, but it was the forming of the chinampas and tending to them. The religious rites and sacred rituals surrounding the water after every birth and every death. It was the educational teaching of cleanliness in the home and water culture that was law. Mexica law was the practice of planting their maize during specific times of the year and the rituals done to bring the seasonal rains that would help the maize grow. The cultivating of the milpa plots was also a form of Mexica law, the plants had to be planted with certain vegetation that would enable them to live off one another and grow.

 All of the practices that provided the Mexica the ability to sustain their constantly growing city was Mexica law. Without these laws, Mexica sustainability would not have been what it was, every practice and action had a reaction. If the chinampas were not protected from the floods and built properly they would not survive, and Tenochtitlan would lack food. If the water was not respected and cleanliness was not sacred, then pollution would threaten their land, air and water. Unfortunately, when Cortes arrived colonization slowly depleted and disrespected indigenous law. Indigenous law was thought to be pagan and was destroyed physically, mentally and spiritually as Spain sought to change indigenous water culture.

 This can be seen with water policing in the 1700’s and the Western laws and beliefs that sought to disenfranchise and oppress the indigenous people of Mexico who had preserved the beauty of their lands. Sadly, indigenous acknowledgement came late in 1992, but indigenous people continue to be resilient. Today, the chinampas are still used by farmers who provide their produce to some of the best restaurants in the world. The growing concern surrounding the water crises has spurred investigations to use indigenous knowledge to try and reduce the harm to the environment and the water. The 500 years of destruction to the land in Mexico cannot be fixed, but the continued resilience of the Mexica in Mexico today and the indigenous histories passed down can provide a wealth of knowledge that can preserve what land and water there is left.


Law of Indigenous Peoples Paper Topic: Jessica Martinez

An Unrecognized People: The Story of the Chihene Nde Nation of New Mexico and their Struggle to Seek Federal Re-Recognition

“Bik’egu indán naił hedansį. Nzhugoo na idaada idén í, naiłgunłí nazai shi nahi até ibił, hinłiłgu, naha anzí. ihexé” 
English Translation: “Creator of life we are honored by you, look over us. Firmly help us maintain our language and our ways. Thank you.”

The Chihene Nde Nation of New Mexico is a tribal organization that is seeking federal acknowledgment (re-recognition) as a distinct Indian Tribe under the requirements of 25 C.F.R. §83.8. The ChiNdé (Red Paint People) are descendants of Nde (Apache) people throughout Southern and Central New Mexico. The Chihene Nde Nation of New Mexico can demonstrate that they are a distinct Apache tribe once acknowledged by the government. The proof is based on a signed peace treaty between their ancestors and the United States government on June 9th, 1855, at Fort Thorne. This treaty is significant because it will give weight to their petition and could lessen the standard of proof under the requites of the statute. However, even though the tribe may be reviewed under a less stringent standard, the process will be costly and very difficult for them to prove. 

My paper offers a critique of the federal recognition process from the perspective of a tribe preparing their petition for re-acknowledgement. The Federal Acknowledgment process requires them to build a case to prove their identity and authenticity as indigenous. The tribe’s sacred traditions, oral and written historical documentation, and the beliefs will be scrutinized under subjective and restrictive standards that are rooting in colonialism. The paper explores the requisites of the administrative policies for non-recognized indigenous people to gain recognition and explains how they can be confined and invasive. The process in some instances may result in reopening wounds of traumatic pain that an indigenous group may have faced from government action. 

My paper is also a personal reflection, as I am a member of the Chihene Nde Nation of New Mexico. I have the unique opportunity to use this platform to present research on my tribe’s struggle to gain Federal Recognition. My research examined a series of documents obtained by our Tribal Chairman, Manny Sanchez, related to our tribe’s oral history, customs, traditions, and historical records that will be used in our petition. I reviewed various files compiled by our tribal leaders and historians that will be used in our petition. I also present the complexity of indigenous identity, expanding on research presented by tribal member, Judy Marquez, who shared her thesis on Indigenous identity and the ethnogenesis of Southwestern New Mexico. Identity is personal. Identity is also central to a tribe’s ability to self-determine and be considered legitimate under the U.S. government. Self-determination would give our tribe the ability to preserve our ways of life. 

By acknowledging the sovereignty of a tribe, the federal government also acknowledges “its own fiduciary responsibility to assure that native tribes have the necessary resources to provide for and protect their distinct cultural heritage.”[1] “The term ‘federally recognized tribe’ has become synonymous with ‘true’ Indian heritage.”[2] Non-recognized tribes face genetic trauma of government goals of taking their homeland for personal gain, while being victims of displacement, assimilation, and understanding that their ancestors were imprisoned and killed. In addition to this, being unrecognized means that they also are faced with the “stigma of [being considered a] second class Indian.”[3] For an unrecognized tribe a lot is at stake. Included in this quest, is their ability to authentically claim their rights to their identity as a people. For the unrecognized or forgotten people, “[a]cknowledgement is an affirmation of [their] heritage and official recognition of their tribal ancestry: an expression of their Indian pride.”[4] The risk of a rejected petition would further perpetuate trauma and stigmas to an entire people and the generations to come. 

In order for the Chihene Nde Nation to move forward with their goals to obtain federal recognition, they will be subjected to financial burden and the emotional cultural cost. Despite these negative ramifications, the Chihene Nde Nation must seek the path of federal acknowledgement because without it, they will be treated as second class Indians; without access to resources, legal protections, and without their right to self-determine as a sovereign and autonomous nation.  

Brief Biography of blog contributor Jessica I. Martinez

Jessica is a second-year law student at UNM School of Law. She is a member of the Chihene Nde Nation of New Mexico. The Chi’Nde are descendants of Apache people throughout Southern and Central New Mexico. The tribe is not federally recognized but is dedicated to the preservation of their language, culture, traditions, including protecting historic and sacred sites. 

[1] Alva C. Mather, Old Promises: The Judiciary and the Future of Native American Federal Acknowledgment Litigation, 151 U. PA. L. Rev.1827,184 (2003).

[2] Id.

[3] Id.

[4] Id. at 1837. 


Law of Indigenous Peoples Paper Topic: Esther Jamison

Murdered and Missing Indigenous Women: A Roadmap for Advocacy Before the Inter-American Commission on Human Rights

The disproportionate level of sexual and physical violence experienced by indigenous women has garnered significant national and international attention in the past decade. Lethal violence against women is so common among indigenous communities in the United States and beyond that the phenomenon has acquired its own name: Missing and Murdered Indigenous Women (MMIW).[1] Although the problem has received significant tribal, state, federal and international scrutiny in the past few years, it has not before been addressed by an international human rights tribunal where the United States is the respondent state. 

While acknowledging efforts to remedy the problem of MMIW at tribal, local, state, and federal levels, my paper argues that a petition before the Inter-American Commission on Human Rights (IACHR) would enable a broader discussion of the root causes of the problem: principally, the erosion of tribal sovereignty and the removal of jurisdiction over major crimes from the tribes. Such a petition would assert both individual and collective rights: it would assert an individual’s right to an effective remedy—in particular an effective tribal remedy—and her right to be free from discrimination; additionally, it would assert the collective right of indigenous peoples to self-determination and self-government as a means to achieve that goal. 

Inter alia, my paper surveys the legal basis of an international human rights claim, examining international human rights instruments such as the American Declaration on the Rights and Duties of Man, the American Convention on Human Rights, the Universal Declaration on the Rights of Indigenous Peoples, and the International Covenant on Civil and Political Rights. It also examines relevant case-law in the American human rights system, which although not binding precedent in the international context, is highly persuasive. In particular, it examines the precedential value of: Mary and Carrie Dann v. United States for the right to sovereignty and self-determination of indigenous peoples; Jessica Gonzales (Lenehan) v. United States for the right to a remedy and the affirmation of positive duties on the part of the state to protect women from gender-based violence; and Gonzales et al. (“Cotton Field Case”) v. Mexico for the right to an effective criminal investigation and the right to be free from discriminatory treatment at the hands of investigatory authorities. 

A decision by the IACHR could address longstanding and entrenched sovereignty issues and suggest remedies such as the return of wholesale criminal jurisdiction to the tribes, along with the funding to make it workable. Failing that, my paper argues for the creation of positive duties on the part of the federal government to provide effective remedies for indigenous women, including the duty to protect them from human rights violations by non-state, private actors. 

[1] For the purposes of this paper, MMIW is used as a short-hand term that indicates the heightened levels of sexual and physical violence against indigenous women, whether or not that violence was fatal. 


Law of Indigenous Peoples Paper Topic: Sean McKenzie

Examining Predatory Border Town Vehicle Sales from a Navajo Common Law Perspective

By Sean McKenzie


            The Navajo Nation Human Rights Commission (“Commission”) has found that certain car dealerships located in towns surrounding the Navajo Nation “prey[ ] upon” Navajo consumers.[1] Predatory car sales practices include unethical sales practices designed to deceive consumers into signing unfair vehicle contracts.[2]  My research examined predatory border town car sales from a Navajo common law perspective. It found that efforts to address predatory car sales outside Navajo jurisdiction[3] should take into account Navajo common law values because these values may influence the car-buying experience of Navajo consumers. In particular, Navajo common law values can conflict with the values of car dealerships, making some Navajo consumers more vulnerable to predatory car sales practices.


            Western economic values emphasize individual economic success.[4] These Western economic models perceive the world as a competition between individuals for scarce resources.[5] Accordingly, Western economic models emphasize individual freedom and autonomy.[6] “The ‘self-made’ man is a hero.”[7] This individual-centric view influences Western law’s view of commerce.[8] Specifically, Western law tends to view commerce as made up of discrete transactions between individuals.[9] Western economic values therefore emphasize each party’s “freedom to contract”—the right of each party make a deal maximizing its own self-interest—even if such a deal negatively impacts the other party or community-at-large. 

            By contrast, Navajo fundamental law emphasizes harmonious relationships and healthy communities.[10] These values are reflected in the fundamental law doctrines of hózhók’é and k’éi.[11] Two important common law promissory values in the context of buyer-seller transactions flow from Navajo fundamental law’s emphasis on harmonious relationships and healthy communities: (1) the importance of dialogue, and (2) the sacredness of words. First, Navajo common law emphasizes that dialogue between parties to a transaction should be respectful, transparent, and honest because such dialogue preserves harmonious relationships.[12] Second, Navajo common law recognizes that “[w]ords are sacred and never frivolous in Navajo thinking[.]”[13] Accordingly, promises are sacred. As a result, some Navajo consumers, perhaps especially elders, may presume dealership employees will engage in transparent dialogue and honor oral promises because Navajo common law emphasizes respectful, transparent dialogue and the sacredness of words. In reality, border town dealerships are notorious for using words loosely to deceive consumers. For example, dealerships often make misleading or false oral statements to Navajo consumers regarding the condition of a vehicle, the terms of the warranty, and the loan package.

Limitations and Methodology

            Several methodological limitations affected this analysis. Most importantly, the author, an Anglo male who grew up in the Navajo Nation border town of Gallup, New Mexico, has no lived experience of Navajo common law. This analysis therefore relied exclusively on written materials to make hypotheses about how Navajo common law values impact the car-buying experience of Navajo consumer. While most of these written materials are primary sources, such as Navajo Supreme Court decisions, the author nonetheless interprets these texts through the eyes of an outsider. 

[1] Navajo Nation Human Rights Comm’n, Assessing Abuse of Navajo Customers When Purchasing Vehicles in Border Towns, 19 (Mar. 7, 2014),

[2] Id. at 13-18.

[3] The Navajo Nation has acted aggressively to combat predatory car sales within its border, including  passing the Navajo Consumer Protection Act. 

[4] See generally Adam Smith, The Wealth of Nations (1776); see also Valerie Phillips, Parallel Worlds: A Sideways Approach to Promoting Indigenous – Ionindigenous Trade and Sustainable Development 4 (October 4, 2007) (unpublished manuscript) (available at 

[5] Id.

[6] Michael D. Lieder, Navajo Dispute Resolution and Promissory Obligations: Continuity and Change in the Largest Native American Nation, 18 Am. Indian L. Rev. 1, 57-58 (1993),

[7] Id. 

[8] Id.

[9] Id.

[10] Austin, supra note 69, at 40-41.

[11] Id.

[12] Green Tree Servicing, LLC v. Duncan, 7 Am. Tribal Law 633 (Nav. Sup. Ct., 2008).

[13] Kesoli v. Anderson Sec. Agency, 6 Am. Tribal Law 692, 696, 8 Nav. R. 724, 724 (Nav. Sup. Ct. 2005).