Public Law 280

By Alicianna Martinez

            Native American tribal governments are sovereign, self-governing entities. They have the to power to determine their own governance structures, pass laws, and enforce laws through police departments and tribal courts.^[1] The ability to self-govern is essential for tribal communities to continue to protect their cultures and identities.^[2] Although, one major obstacle associated with tribal self-governance is the impact that federal legislation has on Tribes.^[3] The passage of Public Law 280 is a primary example of how impactful federal legislation is in relation to Tribes.

            Public Law 83-280 was the 280^th Public Law enacted by the 83^rd Congress in 1953.^[4]

On the reservations to which it applied, it took away the federal government’s authority to prosecute Indian Country crimes based on 18 USC 1152 (the Indian Country General Crimes Act) and 18 USC 1153 (the Major Crimes Act).  Second, it authorized the states of Alaska, California, Minnesota, Nebraska, Oregon, and Wisconsin to prosecute most crimes that occurred in Indian country.^[5]

This law was a large part of the Termination-era legislation.^[6] The legislation initially included five states–Minnesota, Wisconsin, Nebraska, Oregon, and California.^[7] Alaska received statehood in 1959 and adopted Public Law 280.^[8] Other states also later adopted elements of the legislation.^[9] Public Law 280 altered the allocation of criminal jurisdiction in Indian Country.^[10] Because of Public Law 280, federal criminal jurisdiction became limited and state jurisdiction was expanded in the reservations in the six named states.^[11]

            Before the enactment of Public Law 280, the federal government, and Indian Country shared jurisdiction over several civil and criminal matters involving Indians in Indian Country.^[12]  The states had no jurisdiction over Indians in Indian Country.^[13] The enactment of Public Law 280 allowed for the states to gain control over crimes in Indian Country involving Indian perpetrators and or victims.^[14] Indian Nations subsequently lost control over several criminal and civil matters within Indian Country.^[15]

            Both the states and Indian Nations found Public Law 280 to be concerning.^[16] The legislation causes immense jurisdictional confusion.^[17] One of the biggest issues with jurisdictional confusion is the disagreements that arise “concerning the scope of powers given to the states and the methods of assuming that power.”^[18] This can create difficulties in litigation because it is essential for litigants to be familiar and understand whether the state or tribe has jurisdiction. It is necessary to know which entity has jurisdiction for a court to hear and decide a case.

            Indian Nations impacted by Public Law 280 are opposed mostly due to the process of implementing this legislation. ^[19] Public Law 280 did not require the consent from the impacted Indian Nations and did not require a consultation with the Impacted Indian Nations.^[20] The enactment of Public Law 280 constituted a complete failure to recognize tribal sovereignty and tribal self-determination.^[21] Additionally, states are dissatisfied with Public Law 280 because the Act fails to provide federal funding to states, so they are unable to finance it.^[22]

            Ultimately, the passage of Public Law 280 immensely altered tribes and their ability to self-govern. Prior to Public Law 280, criminal jurisdiction was mostly shared between federal and tribal governments. There was little interference from state governments. Now, state governments have gained more power. Public Law 280 violates tribal sovereignty by giving states criminal jurisdiction.

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[1],Tribal Governance, National Congress of American Indians (last visited May 7, 2022), https://www.ncai.org/policy-issues/tribal-governance.

[2] Id.

[3] Id.

[4] Jerry Gardner and Ada Pecos Melton, Public Law 280: Issues and Concerns for Victims of Crime in Indian Country, Tribal Court Clearinghouse (last visited May 7, 2022), http://www.tribal-institute.org/articles/gardner1.htm#2.

[5] The United States Attorney’s Office District of Minnesota, Frequently Asked Questions about Public Law 83-280, United States Department of Justice (last visited May 7, 2022), https://www.justice.gov/usao-mn/Public-Law%2083-280.

[6] Eugene Sommers, Matthew Fletcher & Tadd Johnson, It’s Time to End Public Law 280, Native Governance Center (last visited May 7, 2022), https://nativegov.org/news/its-time-to-end-public-law-280/.

[7]  Id.

[8]  Id.

[9]  Id.

[10] Gardner and Melton, Supra note 4.

[11] Id.

[12] Id.

[13]  Id.

[14]  Id.

[15]  Id.

[16]  Id.

[17]  Id.

[18]  Id.

[19]  Id.

[20] Id.

[21]  Id.

[22]  Id.

Tribes as International Legal Actors and the International Community’s Failed Legal Obligations

By Hannah Tompkins

            International law is an area that intersects and overlaps with every arena of domestic law. International law is an important lens for human rights and a way that we can look at the rights of indigenous peoples and advocate for stronger protections for tribes. International law is a way for global actors to interact together and solve problems that affect people all over the globe.^[1] These various actors use “international law to structure their interactions, advance particular legal positions, justify their own actions, and acknowledge specific legal rights and obligations.”^[2]

There are many legal instruments used in international law, but treaties are one of the most common. Treaties are agreements that states voluntarily agree to enter into with other states. Treaties are powerful instruments and when ratified, they become law for those ratifying countries. Some treaties are considered global and multilateral while some are regional and multilateral, and others are bilateral typically between two countries.^[3] Customary international law is also an important legal instrument and sets out many expectations and general practices that states follow. Customary law is typically seen as a legal obligation, not simply guidelines that states follow.^[4] Customary law often affects the content of treaties and they work together to form a body of law. The role of custom in international law is one large reason why we can look at protections for indigenous rights in the international context. This is because “indigenous juridical customs, laws, and institutions are recognized in the main international instruments on Indigenous Peoples’ rights, which helps cement the notion that these are fundamental human rights of Indigenous Peoples.”^[5] This helps to give legitimacy and see how indigenous systems are legitimized in other countries.^[6]

            States are not the only legal actors involved in international law and who have international legal obligations. There are many non-state actors such as non-governmental organizations (NGOs), corporations, regional organizations, religious organizations, the states of the United States, and even tribes.^[7] Non-state actors play an incredibly important role in the international sphere and influence treaties and other legal instruments. Non-state actors also play a large role in creating soft law. This is an important reason that tribes should be involved because they can help create soft law relating to indigenous peoples and human rights generally. They are also the subjects of many of these treaties and laws.

            Treaties are the most concrete legal instrument used in international law. As we know, treaties are also incredibly important to domestic law in the United States. The Supremacy Clause in the United States Constitution tells us that “all treaties made, or which shall be made, under the Authority of the United States, shall be the supreme law of the land.”^[8] Domestic treaties were the main instrument used by the federal government to negotiate with tribes. These treaties are what set out the federal government’s trust responsibility to tribes in conjunction with many Supreme Court cases determining the ward status of tribes to the government. While this “ward status” is an outdated term^[9] it does impose legal obligations on the federal government to take care of tribes. The United States has made it clear in both the domestic and international arenas that treaty obligations are incredibly important to America and yet they break their treaty obligations with tribes on a daily basis.

            On this note, the United States and the international community break their treaty obligations to tribes in the international arena as well. Some of the relevant treaties to my discussion here are the International Covenant on Civil & Political Rights (ICCPR), the International Covenant on Economic, Social, and Cultural Rights (ICESCR), and the Universal Declaration on Human Rights (UDHR.) Article 1 of the ICCPR states that “all peoples have a right of self-determination.”^[10] Article 18 states that “everyone shall have the right to freedom of thought, conscience, and religion.”^[11] The United States consistently ignores the tribal communities’ religious and cultural practices. For example, the United States banned a practice known as the Sun Dance which is a Native ritual that involved some dangerous practices like piercing.^[12] Article 27 also reiterates the right of minority communities to enjoy their own culture, religion, and language.^[13] The United States has a clear history of denying or taking away these rights for tribes especially in regards to language.^[14] The United States has attempted programs to encourage the revitalization of language for tribes, but they could do more in promoting the revitalization of native cultures.^[15] The ICESCR has similar language, especially in Article 11. Article 11 states that they “recognize the right of everyone to an adequate standard of living for himself and his family, including adequate food, clothing and housing, and to the continuous improvement of living conditions.^[16] “The States Parties will take appropriate steps to ensure the realization of this right, recognizing to this effect the essential importance of international co-operation based on free consent.” This provision is one that the United States fails greatly at in regard to tribes. Many tribal members and reservations live with the standard of care that third world countries do. Many do not have access to water, adequate health care, sufficient resources, and so on. Finally, the UDHR “sets out, for the first time, fundamental human rights to be universally protected” and “paved the way for, the adoption of more than seventy human rights treaties, applied today on a permanent basis at global and regional levels.”^[17] The UDHR also sets out rights relating to race, religion, and an adequate standard of living. The UDHR further emphasizes that everyone has the right to freely participate in the cultural life of the community.^[18] These are just some of the provisions of a few treaties that the United States has signed or ratified and yet they continue to deprive tribes of many of the rights contained therein.

            It is also important to discuss the United Nations Declaration on the Rights of Indigenous Peoples. It is not a treaty, but it is an important international document that outlines the fundamental rights of Indigenous Peoples. This resolution was discussed and debated for a long period of time, only furthering its legitimacy.^[19] A majority of the UN member states voted in favor of it and as a result, “it represents the highest degree of acknowledgement at the global level of the rights of Indigenous Peoples in areas such as lands, natural resources, language, cultural preservation, traditional knowledge, and spiritual practices.”^[20] Article 3 affirms the right to self-determination which puts it in conformity with the ICCPR and ICESCR as they affirm this right for all.^[21] Article 34 affirms the right to maintain and strengthen their distinct political, legal, economic, social, and cultural institutions and practices.^[22] This relates back to Article 27 of the ICCPR. Having this resolution be specific for Native peoples but contain similar language to the treaties mentioned above creates a notion of the importance of Indigenous rights and Indigenous self-determination.

            One possible solution is to bring tribes into the making of international soft law. This already happens with NGOs, community groups, and other international organizations.^[23] By giving tribes a larger voice on the international arena, it will be harder for the United States to ignore their obligations. If the United States will not hold themselves accountable to their treaty obligations, both domestically and internationally, then the international community needs to step up and put pressure on the United States to fulfill their obligations to tribes. The United States continues to tout their trust relationship to tribes yet consistently ignores the responsibilities that come with this relationship. There are clear obligations being ignored by the United States contained in both domestic and international treaties. Looking at international treaty obligations is simply another way we can advocate for the federal government to step up and fulfill their obligations to tribes.

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^[1] Jeffrey L. Dunoff et al., International Law: Norms, Actors, Process A Problem Oriented Approach 3 (Wolters Kluwer 5th ed, 2020) [hereinafter Dunoff].

^[2] Id. at 12.

^[3] Id.

^[4] Id. at 63.

^[5] Marianne O. Nielsen & Karen Jarratt-Snider, Traditional, National, and International Law and Indigenous Communities 147 (2020).

^[6] Id.

^[7] Id. at 169.

^[8] U.S. Const., art. VI, § 2.

^[9] The “ward to guardian” term is used to justify laws against tribes while simultaneously is being ignored even though the United States has a trust obligation based on it.

^[10] International Covenant on Civil and Political Rights art. 1, cl. 1, Dec. 16, 1966, 999 U.N.T.S. 171 [hereinafter ICCPR].

^[11] ICCPR, art. 18, cl 1.

^[12] Native Partnerships, Living Conditions, Native American Aid (last visited May 5, 2022), http://www.nativepartnership.org/site/PageServer?pagename=naa_livingcondition.

^[13] ICCPR, art. 27, cl 1.

^[14] Michelle Nijhuis, Tribal Talk, Smithsonian Magazine (Nov. 1, 2003) https://www.smithsonianmag.com/history/tribal-talk-93636590/.

^[15] New Mexico Delegation, Legislation to Reauthorize Native American Language Programs Becomes Law, United States Senate Committee on Indian Affairs (Dec. 21, 2019),

https://www.indian.senate.gov/news/press-release/legislation-reauthorize-native-american-language-programs-becomes-law-0 .

^[16] International Covenant on Economic, Social, and Cultural Rights art. 11, cl. 1, Dec. 16, 1966. [hereinafter ICESCR].

^[17] Universal Declaration of Human Rights, G.A. Res. 217 (III) A, U.N. Doc. A/RES/217(III) (Dec. 10, 1948) [hereinafter UDHR].

^[18] UDHR, art. 27, cl 1.

^[19] Nielsen & Jarratt-Snider Supra note 5, at 149.

^[20] Id.

^[21] G.A. Res. 61/295, United Nations Declaration on the Rights of Indigenous Peoples (Sept. 13, 2007).

^[22] Id.

^[23] Dunoff supra note 1, at 151.

The Impact of Covid-19 on Native American Students’ Access to Technology

By William Dunn

Native American communities across the country have experienced numerous hardships over the course of the pandemic, ranging from limited access to medical care and other basic needs to extreme isolation for the most vulnerable members. The impact on student education will be felt for years in the future no matter where students sheltered in place, and it will be especially recognizable in rural areas where geographic and social isolation have always created barriers for students. Lack of access to technology limits one’s ability to complete assignments and limits access to other resources such as classroom instruction and tutoring services. Amid the shelter-in-place orders, students have faced many barriers like this that are crucially tied to academic performance. Recognizing the historical and social factors that have exacerbated the impact that Covid-19 has had on Native American students is essential to understanding why there have been such disproportionate effects compared to the rest of the country.

            With New Mexico already facing some of the lowest rates of broadband access in the country, Native American families encountered particular struggles to adapt to stay-at-home guidelines. Lack of access to broadband and Wi-Fi services was a primary concern. In 2018, the

Federal Communications Commission estimated that roughly 35% of individuals living on tribal lands in the United States lacked access to broadband services compared to only 8% of Americans in the rest of the country.^[1]  Reasons for this may include costs of Wi-Fi services, limitations on digging within historical areas on reservations, and the physical structure of adobe homes in rural communities.^[2] According to the New Mexico Public Education Department, “as of April 10, 2020, approximately 23,398 Native American students were in need of broadband capabilities and devices.”^[3] Many students thus had to find other ways of submitting assignments and attending classes.

            To stay on top of assignments, students have reported writing and submitting papers on their cellphones or doing assignments by hand and submitting photos.^[4] There are also reports of parents driving their children to libraries, restaurants, and other, sometimes very remote, locations to have access to high-speed Internet.^[5] Most students were initially able to engage in distanced learning through cell phone video services, however, limited data and call minutes removed that as a permanent solution.^[6] Some students are reported to have taught themselves lesson material where they had no other resources to learn.^[7] The severity of the situation is elevated by the limitations on access to basic needs such as clean water, food, and adequate medical attention.^[8] Native communities were impacted at much higher rates than other demographics in the country and it is important to understand some of the systemic factors that caused the pandemic to exacerbate problems in Indian Country to such a great extent.

            The disproportionate impact that Covid-19 had on Native communities, compared to that of other demographics, laid bare the “historically embedded structural vulnerabilities” that have impacted student access to technology in Indian Country. Tribal land status and infrastructure limitations are two major factors that lie at the heart of the issue. According to a 2020 study by the University of British Columbia, “[t]ribal land status is also related to the lack of Internet access as Tribes have unique geopolitical and geophysical terrain influenced by colonization, cultural practices, sovereignty and Tribal governance.”^[9] Access to Internet services is highly dependent on Tribal sovereignty and is limited by “external obstacles such as federal policies, statutory and regulatory requirements, and historically overlooked and underfunded Internet infrastructure.”^[10] The study explored five “historically-identified vulnerability” variables, which have contributed to the disproportionate impact of Covid-19 among Native Americans. The five variables include “percent of housing units without telephone, percent of housing units without Internet, percent of housing units without complete plumbing, Tribal land status, and presence of abandoned uranium mines.”^[11] The barriers to student education throughout the pandemic must be understood by recognizing the impact of historical racism that has created the structural vulnerabilities that Native American students have had to contend with in socially distanced learning.

             Native American students living in rural parts of the country have had to endure some of the greatest challenges to receive an education compared to students in the rest of the country. Broadband access and infrastructure continue to create barriers to student access to technology and education as well as other vital health services in tribal land. As a result, students have been forced to adapt in all sorts of ways to stay on top of schoolwork and attend remote classes. If there is any hope of creating the systemic change necessary to make educational resources more available for Native American students, it is essential to understand the factors that have created these barriers to access including the destructive impacts of federal policy and Western cultural practices.

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[1] Gabriel R. Sanchez et al., Internet Access and the Impact on Tribal Communities in New Mexico, UNM Nᴀᴛɪᴠᴇ Aᴍ. Bᴜᴅɢᴇᴛ & Pᴏʟ’ʏ Iɴsᴛ. 3 https://www.iad.state.nm.us/wp-content/uploads/2020/06/nabpi-iad-broadband-report-final.pdf (last visited April 13, 2022).

[2] Id. at 4.

[3] N.M. Pᴜʙʟɪᴄ Eᴅᴜᴄ. Dᴇᴘᴛ., Iɴᴛᴇʀɴᴇᴛ Cᴏɴɴᴇᴄᴛɪᴠɪᴛʏ Cᴏɴᴄᴇʀɴs ᴏɴ Tʀɪʙᴀʟ Lᴀɴᴅs: Gᴜɪᴅᴀɴᴄᴇ Dᴏᴄᴜᴍᴇɴᴛ (2020).

[4] Anja Rudiger, Pathways to Education Sovereignty: Taking a Stand for Native Children, Tʀɪʙᴀʟ Eᴅᴜᴄ. Aʟʟ. 27 (Dec. 2020), https://nabpi.unm.edu/assets/documents/tea-full-report_12-14-20.pdf.

[5] Sanchez, supra note 1, at 4.

[6] Candi Running Bear et al., Challenges for Rural Native American Students With Disabilities During COVID-19, 40 Rᴜʀᴀʟ Sᴘᴇᴄɪᴀʟ Eᴅᴜᴄ. Q. 60, 64 (2021).

[7] Rudiger, supra note 4.

[8] Running Bear, supra note 6, at 61.

[9] Aggie J. Yellow Horse et al., COVID-19 in New Mexico Tribal Lands: Understanding the Role of Social Vulnerabilities and Historical Racisms, Fʀᴏɴᴛɪᴇʀs ɪɴ Sᴏᴄɪᴏʟᴏɢʏ 3 (2020).

[10] Id.

[11] Id. at 5.

Navajos Wear Nikes: A Reservation Life by Jim Kristofic

Book Review By: Brittany Dutton-Leyda

I first read the book Navajos Wear Nikes: A Reservation Life by Jim Kristofic in undergrad for a sociology class. I have since re-read it a few times and shared it with my kids because of the captivating storytelling of Navajo culture coming from the perspective of a non-Native. The book is Kristofic’s memoir about his life growing up on the “Rez” in Ganado, Arizona on the Navajo Nation.

            Navajos wear Nikes: A Reservation Life is a beautiful compilation of childhood memories and stories Kristofic shares that gives powerful insight into the history, culture, and traditions on the Navajo Nation and what it means to be Diné. Kristofic, his younger brother, and his mother moved to Arizona from Pittsburgh when his mother got a job as a nurse at the hospital in Ganado.^[1] His mother always had a fascination with Native American culture and was excited for the opportunity to work where she could serve in a community she admired.^[2]  I enjoyed reading about how moving their family from Pennsylvania to the Navajo Reservation drastically changed the cultural influences in Kristofic’s life and provided him a profound appreciation and respect for Diné life.

Kristofic details the bullying he endured as the only white boy in his school growing up that eventually resulted in his earning the respect of his Navajo peers.^[3] He had to prove to the Navajo boys that he could be a “tough noodle.”^[4] In the chapter You Will Get Your Scar, Kristofic reminisces of the time he got a bad scar from falling off a donkey, and how the scar gained him credibility with the Navajo boys. “That night, I made sure to pick away the scab. . .It was now the whitest skin on my body. But for my new friends, it was the most Navajo.”^[5]

What I found the most refreshing about the book was the candor Kristofic uses to express his difficulty as a white boy growing up and trying to fit in in a predominantly Native majority environment. I found this perspective refreshing because often it is the other way around with us, people of color (Natives, Latinx, Blacks), struggling to fit into varying environments. I also found it heartwarming that over the years, Kristofic essentially became Navajo by “spirit.”^[6] In turn, he eventually finds the reservation (where he once struggled to fit in) to be home.^[7] “I consider Diné Bikéyah – the Navajo Reservation – my true home.”^[8] Because of his foundational assimilation into Navajo culture, he also shares his conflicting struggle with the ability to fully adapt back into Anglo culture after leaving the Navajo Nation.^[9]

            Another insightful chapter is Shizhé’ Ash’íní from Piñon, Arizona, where Kristofic chronicles the expansion of his family when his mother marries his stepdad (a Navajo man) and gives birth to his baby sister. “Before the end of the fifth grade, I was starting to understand that Mom was not only interested in Navajo bracelets, earrings, rings, turquoise necklaces, concho belts, sandpaintings, and pottery. She was also interested in Navajo men.”^[10] He shares with fondness the day his stepfather came into his life, and the birth of his baby sister who was named with a traditional Navajo name.^[11]

            Finally, Kristofic recounts the identity struggles he faced when he moved out of the Navajo Nation with his family in high school, and the way he missed his home on the Rez, where his family often continued to visit.^[12] In the end, Kristofic went back to Pennsylvania to attend college, but ultimately, it was his experiences growing up on the Rez that impacted his life and informed who he is.^[13] “Anytime I turned to Anglo culture for answers, some deeper pattern seemed to pull me back to the Diné beliefs.” It was evident throughout the book that Kristofic was drawn to Diné culture, having been raised with those beliefs that made him into the man he is today.

            In the Epilogue: The Answer to the Question, Kristofic addresses the elephant in the room, something he gets asked all the time – “The Question: ‘Are you Indian?’”^[14] Kristofic responds beautifully with, “I’m not Indian. But neither are the people who live on the Rez. They’re Navajo’s. They are Diné, The People. I don’t know if I have ever met an ‘Indian.’ But I’ve met Cherokee, Lakota, Hopi, Laguna, Zuni, and Utes.”^[15] Since then, Kristofic has gone on to write “for The Navajo Times, Arizona Highways, Native Peoples Magazine, and High Country News. Navajos Wear Nikes: A Reservation Life was praised by the Arizona Daily Sun and by New Mexico Magazine. The book was named a 2011 Southwest Book of the Year.”^[16] I think this book is a lovely recollection of Navajo culture. And for what it’s worth, I highly recommend Navajos Wear Nikes: A Reservation Life. It was a book that stirred my interest in learning more about Indigenous culture, and was the beginning of what has now become my great respect and appreciation for the Diné.

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[1]  Jim Kristofic, Navajos Wear Nikes 1-2 (University of New Mexico Press, 2011).

[2] Id. 

[3] Id. at 8-19.

[4] Id. at 33.

[5] Id. at 52.

[6] Id. at 192.

[7] Jim Kristofic, The Blog for Author Jim Kristofic, About Jim Kristofic, https://jimkristofic.wordpress.com/about/ (last visited March 31, 2022).

[8] Id.

[9] Kristofic, supra note 1 at 172.

[10] Id. at 91.

[11] Id. at 94-99.

[12] Id. at 127-138, 159-172.

[13] Id. at 161, 172.

[14] Id. at 192.

[15] Id.

[16] Kristofic, supra note 2.

Living Relationships

By Bree Barnett

The golden light shown across the land,

Shadows danced across the mountains as the sun leaned down to kiss the edge of the earth.

It was here where the cliffs met like long time lovers,

It was here where the rocks made perfect seats to coddle my tired body,

and the wind cooled the dysphoria of everyday.

The still cool evening air breathes a fresh will of life into your lungs,

Stress melting away as you reunite with natures healing embrace,

It was here that the earth’s essences envelopes and quiets my busy mind,

It was here that I find the calmness away from human disorder,

and cultivate the divinity in life’s simple enchantment.

The Four Directions

By Erin Fitz-Gerald

The nudge of the dog’s nose

lifts my eyes from the page.

It is time for the journey home.

West to the river

the whispered lapping loosens the mind’s hold.

A soft whiff draws me further within.

Along the north path

crow, duck, gull and crane serve as nobles

in the bald eagle’s court.

We join others and are still.

With a slight bow we move on.

To the east mountains blush.

Sky softens in tenderness… or is it encouragement?

 Maybe, it’s both/and.

To the south dust nestles my step

as I enter the congregation of embracing cottonwoods

backlit in gold.

I settle in for the night

having made my way home.

Jurisdiction Over American Indian Child Custody Cases

By Barbara Ryan

The United States Supreme Court will hear arguments about whether the Indian Child Welfare Act (ICWA) is constitutional later this year.^[1] The Court may decide to keep the law, modify it or strike it altogether.  Before ICWA, child welfare agencies were ignorant or insensitive to cultural differences in child-rearing.^[2] Over 75 percent of Indian families living on reservations lost at least one child to either private or public agencies.^[3] In 1978, Congress enacted ICWA in recognition that children were vital to the continued existence of Indian tribes.^[4] The purpose of ICWA was to  

“…protect the best interests of Indian children and to promote the stability and security of Indian tribes and families by the establishment of minimum Federal standards for the removal of Indian children from their families and the placement of such children in foster or adoptive homes which will reflect the unique values of Indian culture…”^[5]

ICWA established minimal standards for the removal of American Indian children and provided guidelines for the placement of those children in either foster or adoptive homes that reflected their values and culture.^[6] Later this year, the Supreme Court will decide if those protections are still needed. 

Before decisions about placement or permanency are made, there must be a determination about which court has jurisdiction over child custody proceedings. A “child custody proceeding” is an adjudicatory hearing where the court determines the necessity and placement of children, including foster placement, termination of parental rights, and adoptive placements.^[7] The Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) uses four factors to determine jurisdiction.^[8] The factors are based on the child’s affiliation to the State.^[9] First, a home state is where the child has lived for at least the last six months before any custody action.^[10] The second is a significant connection with substantial evidence of a connection to that state.^[11] Third, an emergency resulting from an urgent circumstance such as abandonment or abuse that requires an immediate protective response.^[12] Fourth is via vacuum when no other jurisdiction basis exists.^[13]  These factors are used for children across the country but do not apply to American Indian children.

UCCJEA does not apply to custody cases involving American Indian children; instead, they are governed by ICWA.^[14]  Tribal-State jurisdictional disputes may occur only when States have enacted the optional Section 104 of the UCCJEA.^[15]  In such cases, States must treat tribes, Tribal courts, and Tribal court custody orders with full faith and credit as they would with other states.^[16]  Tribes have exclusive jurisdiction over an Indian child who lives on the reservation and is enrolled or is eligible for enrollment, except where such jurisdiction is vested in State or Federal law.^[17]

Many years of advocacy and litigation have shaped Tribal jurisdiction.  In United States v. Mazurie, the  Supreme Court held that state jurisdiction is based on where the parties live, but tribal jurisdiction is determined by the relationship the member has with the tribe irrespective of where any of the parties live.^[18]   In Miles v. Chinle Fam. Ct., the State Court held the Navajo Nation had jurisdiction over their enrolled members regardless of where either the parent or child lives.^[19]  The determining factor in jurisdiction is the enrollment status.^[20] In Father J v. Mother A, the Court concluded that children have “rights and privileges” as enrolled members including to access the tribal courts. ^[21] Additionally, the Court concluded that UCCJEA did not effect in any way the Indian Child Welfare Act, thus did not apply. ^[22]  Further, the Court stated that in “child custody proceeding involving an Indian child is not subject to the UCCJEA.”^[23]Lastly, the Court emphasized that the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) did not apply to a Nation unless the Tribe had adopted it.^[24]

The Miles Court also addressed two critical aspects as delineated in UCCJEA. First, the Court emphasized that Tribal Nations are entitled to comity and should also be afforded res judicata like other states.^[25]  Second, the State Court stayed action until tribal remedies had been exhausted.^[26] Tribal exhaustion means that the Tribe must be given a chance to resolve the issues.^[27]  The exhaustion requirement also provides the Tribe an opportunity to determine the scope of the issues, develop a complete record, and explain tribal jurisdiction.^[28]   The United States Supreme Court concluded in National Farmers Union Insurance Cos. v. Crow Tribe that defendants with cases pending in Tribal Court must exhaust all available remedies at the tribal level before proceeding with an action in federal court. ^[29] Exhaustion could include challenges to jurisdiction or of the action in Tribal court.^[30]

Along with exhaustion, many courts have considered and attempted to preempt conflicting judgements. The Father J v. Mother A Court emphasized the importance of avoiding conflicting judgments in cases with similar substance and procedure.^[31] In Garcia v. Gutierrez, the Court wrestled over the concern of concurrent jurisdiction resulting in contradictory decisions.^[32]  After considering the Infringement Test, the Court relied on the principle that Indian Nations are a “separate people” possessing “the power of regulating their internal and social relations…”^[33] Only the federal government, not the states, can make such determinations because Congress has plenary power over Tribal Nations.^[34]  For example, in Halwood v. Cowboy Auto Sales, Inc., the State Court acknowledged the Navajo Nation’s tribal sovereignty and “full faith and credit” of the Nation.^[35]  Further, in Jim v. CIT Fin. Servs. Corp., the State was forced to use tribal law due to the full faith and credit of the Navajo Nation.^[36] Many courts now recognize the power of Tribes over their own members and thus, give Tribal courts an opportunity to resolve custodial cases before they consider or accept jurisdiction.

Tribal Nations have jurisdiction above other courts over enrolled tribal members and children either enrolled or eligible for enrollment regardless of where they live.  A child custody case may be filed in federal court due to diversity jurisdiction; however, federal courts have historically either stayed or declined to adjudicate such claims in order to afford Tribal courts the first opportunity to determine their jurisdiction.^[37]  The federal government has recognized that American Indian children are critical to the existence and integrity of their Nations and thus, enacted ICWA.  Although all states must comply with ICWA now, that may change with a decision on Brackeen.^[38]  Although the federal government has recognized that Tribal Nations have the right “to make their own laws and be ruled by them,”^[39] changes to ICWA causing erosion to tribal sovereignty could have a devastating effect on the survival of Tribal Nations.

---

[1] See Generally, Brackeen v. Haaland, 994 F.3d 249 (5th Cir. 2021).

[2] State of Montana, ICWA History and Purpose, https://dphhs.mt.gov/cfsd/icwa/icwahistory (last visited Mar. 6, 2022).

[3] Id.

[4] Indian Child Welfare Act, 25 U.S.C. § 1902 (1978).

[5] Id.

[6] Id.

[7]  25 U.S.C. §1903(1) (1978).

[8] U.S. Dep’t of Justice, The Uniform Child Custody Jurisdiction and Enforcement Act, Juvenile Justice Bulletin, 5 (Dec. 2001), https://www.ojp.gov/pdffiles1/ojjdp/189181.pdf.

[9] Id. at 2.

[10] Id.

[11] Id.

[12] Id. 

[13] Id. 

[14] Id. at 5.

[15] Id. (Native nations are sovereign and each tribe has its own child custody jurisdiction law.)

[16] U.S. CONST. art. IV, § 1 (full faith and credit requirement is derived from Article IV, Section I of the Constitution, that state courts respect the judgments of courts from other states.)

[17] 25 U.S.C. § 1911 (1978).

[18] United States v. Mazurie, 419 U.S. 544, 557 (1975).

[19] See generally Miles v. Chinle Family Court, No. SC-CV-04-08, 2008 WL 5437146.

[20] Id. at 613.

[21] Father J v. Mother A, No. MPTC-CV-FR-2014-207, 2015 WL 5936866, *2 (Mash. Pequot Tribal Ct. Aug. 21, 2015).   

[22] Id. at *5.

[23] Id.

[24] Id.; See also, 28 U.S.C. § 1738A (2000), (This law was enacted in 1980 to resolve jurisdictional conflicts, promote cooperation between states and abductions during interstate child custody disputes.) 

[25] Miles, SC-CV-04-08 at 7.

[26] Id. at 6.

[27] National Farmers Union Insurance Cos. v. Crow Tribe, 471 U.S. 857, 857 (1985).

[28] Id.

[29] Id. at 856.

[30] Id. at 857.

[31] Father J, 2015 WL 5936866 at *304.

[32] See generally Garcia v. Gutierrez, 147 N.M. 105, 217 P.3d 591 (2009).

[33] United States v. Kagama, 118 U.S. 375, 381–382 (1886). 

[34] Garcia, 147 N.M. at 107.

[35] Halwood v. Cowboy Auto Sales, Inc., 124 N.M. 77, 78, 946 P.2d 1088 (1997).

[36] See Generally Jim v. CIT Fin. Servs. Corp., 87 N.M. 362, 533 P.2d 751 (1975).

[37] National Farmers Union Insurance Cos., 471 U.S. at 857.

[38] See Generally Brackeen, 994 F.3d 249.

[39] Williams v. Lee, 358 U.S. 217, 219–220 (1959).

The Prior Existence, Authority and Necessity of Tribal Customary Law

by Nina Chester

Each Tribal Nation has experienced a unique introduction to settler society. American jurisprudence is a foreign judicial system that was imposed upon Tribal Nations by the United States federal government through regulations promulgated by the Bureau of Indian Affairs.^[1] They were called Courts of Indian Offenses or Code of Federal Regulations Courts (CIO/CFR courts).^[2] The initial purpose of the CIO/CFR courts was to prosecute Indians for practicing traditional Native American ceremonies, versus the compliant acceptance of Catholicism.^[3] They were installed throughout Indian Country as boiler-plate court systems that operated in the written and spoken foreign English language.^[4]Non-Indigenous settlers perceived Indian Nations to be without lawful order, “in response to such a perceived void the Secretary of the Interior relied upon his general authority over Indian affairs, not an express statutory authorization, to establish these courts.”^[5] Despite the lack of Congressional initiation, the Courts of Indian Offenses and Code of Federal Regulations Courts remain.

Retrospectively, the CIO/CFR courts served as the foundational step towards establishing and operating a tribal court. Where tribes have had the capacity to operate a court within their sovereign governments, they have had more time to adapt their court systems to accommodate their cultures. Some Tribes continue to operate under ‘boiler-plate’ CIO/CFR courts. Where tribes currently do not have the capacity to operate their own tribal courts, the BIA operates CFR Courts for Tribes to use.^[6]

To illustrate the origin and importance of tribal systems of social order, it is helpful to understand that before European, Spanish, French, and non-Indigenous settlement in North America, this vast piece of land existed in its natural state, largely undisturbed by development. For successful human survival on such wild terrain, intimate knowledge of plants, animals, and water resources were required; as was involvement with a community, a tribe. Each Tribal Nation accomplished societal order through customs, traditions, societies, and clanship systems bestowed upon them by their Deities, which ensured the emotional, physical, social, and psychological well-being and survival of the Tribe. Creation stories served as the basis for orientating Tribal Members within the world they were born into. The creation stories developed relationships between the individual and plants, insects, stones, mountains, animals, human beings, wind, water, fire, Earth, Deities, everything, and everyone. The individual learned that everything on Earth is sentient and capable of relationships. The individual also learned that there is a natural order to the way Mother Nature conducts her business of life, death, harvest, and hardship.^[7]

For example, the word for balance or “the perfect state”[8] in Navajo is hozho. To be in harmony with Mother Nature one must seek to live in hozho. A Navajo-to-English translation of this view of the natural order is offered by former Navajo Nation Supreme Court Chief Justice Robert Yazzie, “The Navajo word for ‘law’ is beehaz’aanii.… Navajos believe that the Holy People ‘put it there for us from the beginning’ for better thinking, planning and guidance…. Through these prayers and ceremonies we are taught what ought to be and what ought not to be.”^[9] Together, a tribal human society, the natural world, and the spiritual laws conferred upon a Tribe by their Deities, form what is contemporarily referred to as customary law. It is an expression of the rights and wrongs of conduct in relationship with other human beings, family members, affiliates, the natural world, and the Deities.

In 1832, the Supreme Court of the United States had no awareness of Tribal customary laws. Nevertheless, the Court supported the sovereignty of tribes over encroachment by state governments in Wocester v. Georgia, when it stated:

The Cherokee nation, … is a distinct community, occupying its own territory, … in which the laws of Georgia can have no force, and which the citizens of Georgia have no right to enter, but with the assent of the Cherokees themselves, or in conformity with treaties, and with the acts of congress.^[10]

In 1896, the Court supported the sovereignty of tribes over encroachment by the federal government in Talton v. Mayes when it reasoned that Indian Nations are sovereign because the United States has entered into treaties with them, “The very term ‘nation,’ … means a ‘people distinct from others.’ The constitution, by declaring treaties … to be the supreme law of the land, has adopted and sanctioned … treaties with the Indian nations, and … admits their rank among those powers who are capable of making treaties.”^[11] Wocester and Talton affirmed the sovereignty of federally-recognized Tribal Nations for all civil judicial matters. However, the judicial powers of Indian Nations to prosecute their own Tribal members, Non-member American Indians, and Non-Indigenous people in criminal matters has become very limited.

Within the timeline of federal Indian policy, the Court has “recognized that the tribes remain quasi-sovereign nations which, by government structure, culture, and source of sovereignty are in many ways foreign to the constitutional institutions of the federal and state governments.”^[12] Through use of the Court’s interpretation of cultural differences, the concept of quasi-sovereignty has been one of many tools used by the Court to attempt to deteriorate Tribal sovereignty. Other “tools” include the Major Crimes Act,^[13] the Indian Reorganization Act,^[14] and the Indian Civil Rights Act,^[15] among others.

Given the historic mistreatment of Tribal Nations, Michael Taylor argues that, “[w]ithout an Indian judiciary, the tribes will always be dependent on foreign, sometimes hostile, state or federal judges to decide crucial questions that arise within the tribal territory.”^[16] Therefore, a middle route is necessary. The Courts of Indian Offenses and Code of Federal Regulations Courts need to be fully embraced and imbued with cultural elements that reflect the belief systems of the Tribal Nations they serve. In this manner, they support the Tribal Nation internally and externally.

In order for a judiciary to be effective, it must match the values of a society. For Tribal Nations, customary law carries a weight equivalent to that of American Jurisprudence. Generally, individual sovereignty and an inherent responsibility or duty to one’s relations are foundational concepts of an indigenous worldview. When a dispute arises, a conversation involving families, clans, leaders, elders, and/or a spiritual component occurs about how the parties would prefer to proceed forward. This, generally and broadly speaking, is the judicial system. Everyone is an important piece in the process and everyone resolves the problem together.

Former Justice Yazzie describes the difference between the American adversarial approach to a judicial system and the traditional Navajo approach to a justice system, as “vertical justice”^[17] vs. “horizontal justice.”^[18] He shares that according to Navajo “religious leaders and elders … man-made law is not true ‘law.’ Law comes from the Holy People who gave the Navajo people the ceremonies, songs, prayers, and teachings to know it.”^[19] In his statement, Former Justice Yazzie speaks to an inherent Navajo understanding of the spiritual essence of all that is and he stresses that human beings are but one piece to the universe. For contrast, he adds, “while Anglo law is concerned with social control by humans, Navajo law comes from creation.”^[20] A “‘vertical’ system of justice is one which relies upon hierarchies and power[,]”^[21] has a “preoccupation with the truth[,]”^[22] and it “looks back in time to find out what happened and assess punishment for it.”^[23] Vertical justice “does not try to find out what went wrong in order to restore the  mind, physical well-being, the spirit, and emotional stability. Conversely, Horizontal justice, in the form of Navajo justice, has a “focus on healing, integration with the group, and the end goal of nourishing ongoing relationships with the immediate and extended family, relatives, neighbors and community.”^[24] The fundamental purpose of “Navajo justice is problem solving. Navajo legal thinking requires a careful examination of each aspect of a given problem to reach conclusions about how to best address it.”^[25]

In 1982, the Navajo Nation established the Navajo Peacemaker Court, which incorporated traditional horizontal justice into the vertical CIO/CFR court system that was previously established. The Navajo Peacemaker Court gives Navajo judges and those seeking the services of the Navajo court an opportunity to reach a resolution by “talking things out.”^[26] Peacemaking is similar to the option of mediation in American jurisprudence, but with spiritual and cultural elements distinct to the Navajo culture and society.^[27] Another method of horizontal justice that is available for incorporation and similar to peacemaking is the talking circle, which also allows disputants the opportunity to heal through talking things out, making things right, and healing relationships.

Overall, Tribal Nations require different methods to achieve their own definitions of justice. Therefore, it is natural and necessary for Tribal Nations to reintroduce Tribally-developed systems of justice for proper and satisfactory judicial outcomes for Indian Country.

---

[1] Gloria Valencia-Weber, Tribal Courts: Customs and Innovative Law, 24 N.M. L. Rev. 225, 235 (1994).

[2] Id.

[3] Native Voices, Timeline Defining Rights and Responsibilities, National Library of Medicine (last visited Mar. 14, 2022), https://www.nlm.nih.gov/nativevoices/timeline/364.html.

[4] Valencia-Weber, supra note 1, at 236.

[5] Id. at 235.

[6] Bureau of Indian Affairs, Court of Indian Offenses, U.S. Department of the Interior (last visited Mar. 14, 2022), https://www.bia.gov/CFRCourts.

[7] See Ella Cara Deloria, Waterlily (University of Nebraska Press: Lincoln and London, 1988).

[8] Robert Yazzie, Life Comes from It: Navajo Justice Concepts, 24 N.M. L. Rev. 175, 175 (1994).

[9] Id.

[10] Wocester v. Georgia, 31 U.S. 515, 520 (1832).

[11] Talton v. Mayes, 163 U.S. 376, 383-84 (1896).

[12] Santa Clara Pueblo v. Martinez, 436 U.S. 49, 1684 (1978).

[13] Major Crimes Act of 1885, 18 U.S.C. § 1153.

[14] Indian Reorganization Act of 1934, 25 U.S.C. § 5123.

[15] Indian Civil Rights Act of 1968, 18 U.S.C. §§ 1301–1304.

[16] Michael Taylor, Modern Practice in Indian Courts, 10 U. Puget Sound L. Rev. 231, 274 (1987).

[17] Yazzie, supra note 8, at 177-180.

[18] Id. at 180-187.

[19] Id. at 176.

[20] Id. at 176.

[21] Id. at 177.

[22] Id. at 179.

[23] Id. at 179.

[24] Id. at 182.

[25] Id. at 176.

[26] Id. at 186.

[27] Id. at 187.

Peacemaking On the National Stage

By: Erin Fitz-Gerald

Editor’s Note: This article reflects on egregious violations of human rights (including genocidal violence) committed by colonial governments and sponsored by the Catholic Church. We welcome dialogue regarding the ideas expressed herein in the comments. Thank you.

In the summer of 2021, graves of indigenous students were unearthed in Canada near boarding schools, known as Indian Residential Schools (IRS), forcing Indigenous people around the world to revisit the harms and injustices they and their ancestors had suffered and from which they continue to suffer at the hands of hostile, colonialist governments. Earlier this same year, Ireland published a report detailing the abuses and deaths of women and children in Mother and Baby Homes, religious institutions where unwed women were sent to deliver their babies in secret. The tragedies in these countries have some similar characteristics, and yet, how the two nations approached and responded to them is considerably different. The Truth and Reconciliation Commission of Canada (TRC) undertook Indigenous Peacemaking to forge a path forward to improve relations between the nation and Indigenous communities. Alternatively, Ireland’s Mother and Baby Homes Commission of Investigation positioned itself within the Anglo law approach by inquiring into the past to assign guilt and garner retribution. Healing on a national level is no easy matter when confronted with a legacy of irreparable harm. The TRC’s use of Indigenous Peacemaking however provides a model of restorative justice that demonstrates how a country can begin to address the wrongs inflicted.

            The tragedies in Canada and Ireland were both carried out in state-endorsed, Church-run institutions. In Canada, the Indian Residential Schools were a network of 139 boarding schools funded by the state and run by Christian churches from 1894-1947.^[1] The purpose of these schools was not only to educate but to assimilate Indian children by isolating them from their families and prohibiting the speaking of their Indigenous languages.^[2] As the TRC’s report acknowledges, Canada committed cultural genocide. In the end, 150,000 children attended these schools and a minimum of 3,200 deaths resulted from malnutrition, disease, sexual and physical abuse.^[3] Incomplete records have led to speculation that as many as 15,000 deaths occurred in the IRS system.^[4]

            In Ireland, the Mother and Baby Homes were institutions where unmarried pregnant women and girls were sent from 1922-1998 to deliver their babies in secret. In Ireland, where the Catholic Church has exercised influence and power for centuries, premarital sex was gravely sinful; hence, “the stated primary mission of these homes was to promote reform and repentance.”^[5] The various orders of Catholic nuns who ran these homes believed that they were rescuing approximately 56,000 destitute, unwed women “from homelessness and life on the streets.”^[6] Approximately 57,000 illegitimate children were born in eighteen homes over the course of nearly eight decades.^[7] They suffered physical abuses, medical experimentation and forced adoption. 9,000 children are estimated to have died in these homes.^[8] 

            The two nations have faced crises of conscience in the past ten years as more has come to be known about these institutions. The discovered gravesites and survivor testimonies exposed how the countries condoned abuses of these vulnerable people. The Indian Residential Schools separated children and families as did the Mother and Baby homes. Indigenous children were compelled to travel great distances to these schools, and for years never saw their families. Irish “fallen women” had few choices other than to enter these homes once ostracized by their families and abandoned by their children’s fathers.^[9] Indigenous children’s cultural identities were stripped from them when their clothes were taken, their hair cut, and their language forbidden from being spoken.^[10] The Irish women, repenting for their sins, worked for their stay in the homes,^[11] labored and gave birth with little medical assistance,^[12] and often never knew who their child was after birth even though they may have lived in the same building.^[13] 

            Both of these systems used shame as a weapon. The attendant abuse only magnifies the injustice suffered. In both countries, survivors recount emotional, physical and sexual abuse witnessed and personally endured. Some might discount these traumas as the actions of a few bad actors and not the responsibility of a system condoned by Church or State. Yet, the fact that both countries permitted pharmaceutical companies to perform vaccine trials on children without parental or guardian consent suggests otherwise. From the 1930’s to the 1940’s, a tuberculosis vaccine was developed on First Nations children in Indian Residential Schools.^[14] In the 1940’s additional experiments, including one tracking the effects of malnutrition, were carried out at the schools.^[15] From the 1930’s to the 1970’s, children in the Mother and Baby Homes were subject to a measles vaccine trial, a DTP (diphtheria, whooping cough and tetanus) vaccine trial, and even baby formula trials.^[16] 

            The causes of death and the handling of the dead reflect another level of indifference, one closer to disdain. Indigenous children regularly ran away from the schools, which in winter meant death for some. Tuberculosis was a main cause of death for many years. Yet, the underfunding of the schools and homes likely contributed to those deaths. Without sufficient maintenance and heating of the facilities, the poor nutrition and unsanitary conditions made illness nearly inevitable.^[17] Infant mortality rates in the Mother and Baby Homes were “appalling.”^[18] Over the years, 9,000 children or one in seven of those born within the homes died.^[19] These homes “appear to have significantly reduced their prospects of survival,” given that the mortality rates were double those of the general Irish population.^[20]

            Many accounts suggest that families were never notified that their child had died or gone missing. The unmarked graves in both cases affirm this likelihood. The recent discoveries of unmarked graves at some of the facilities in Canada are not the first and are not expected to be the last. In May 2021, 215 unmarked graves were located at the Kamloops Indian Residential School in British Columbia.^[21] In June 2021, 751 unmarked graves were found at Marieval Indian Residential school on the Cowessess First Nation in Saskatchewan and 182 unmarked graves were found near St. Eugene’s Mission School in British Columbia.^[22] In Ireland, the unmarked graves in two facilities stand out. In Tuam, County Galway, which was where the investigation into the Mother and Baby Homes was initiated, remains were interred in what may have been an unused septic tank.^[23] In Bessborough the location of the cemetery remains unknown.^[24] The lack of records in all instances is not only stunning, but heartbreaking. 

            While the tragedies in Canada and Ireland resemble one another, how the countries confronted them is tellingly distinct. Both countries issued reports.^[25] Yet, the purpose and method of gathering the findings illustrate how one approach can lead to healing while the other “promotes further conflict and disharmony.”^[26] Canada adopted the values inherent within Indigenous Peacemaking, whereas Ireland approached it from the Anglo Law perspective. 

            Indigenous Peacemaking tries “to find out what went wrong to restore the mind, physical well-being, the spirit and emotional stability.”^[27] This healing accompanies an “integration with the group, and the end goal of nourishing ongoing relationships within a community.”^[28] A gathering is held where all those involved are invited to speak freely about feelings or solutions. Given that the focus is on solving problems rather than assigning guilt or exacting punishment, parties are more likely to share their views of the dispute.^[29] In this approach justice is not about determining who is at fault but rather helping a victim and effecting better relations among people.  

            In contrast, Anglo Law takes an adversarial approach.  Rooted in “power, force and coercion,” justice means determining fault to settle an issue.^[30] As a colonial construct, wrongdoers are punished for violating rights.^[31] Retribution and deterrence are targeted. Victims however “have little or no opportunity to participate in outcomes” and are often ignored or left empty-handed.^[32] It is a divisive technique. It does “nothing to restore the individual, the community and the actual harm that was done” and “tear[s] the fabric of family and community.”^[33] 

            The findings regarding the Indian Residential School system was the work of the Truth and Reconciliation Commission (TRC) which was active from 2008-2015. The TRC was established as a result of the largest class-action settlement within Canada, the Indian Residential School Settlement Agreement.  After many former IRS students brought suits for the abuses they suffered, Canada reached a settlement with 86,000 former students in 2006.^[34] The TRC was a three-person panel of Indigenous descent and with some experience with the IRS system.  The government of Canada distantly oversaw the TRC, which was mandated to compose a report that documented the history and legacy of the system from 2007-2015.^[35] In contrast, Ireland established its commission in 2015.^[36] An amateur historian and reporter first suggested that there were unmarked graves of children at Tuam in 2010.^[37] After public outrage grew, the government appointed a three-person panel, the Mother and Baby Homes Commission of Investigation, in 2015.^[38] Its final report was issued in January 2021.^[39]

            One can see how the TRC gathered its findings with Peacemaking principles in mind. Hosting seven national events and other smaller forums to gather testimony of over 6,500 students, the TRC facilitated Peacemaking.^[40] The report documents word-for-word the testimonies of those who gave it, unless requested otherwise. The report, however, not only serves to record the injustices suffered but also to educate Canadian society about the harms Indigenous people suffered at these schools.^[41] An improved relationship between Indigenous people and the community was begun with a shared understanding of the causes and effects of the IRS system. Canada not only provided Indigenous people with a public forum for voicing their pain and suffering but also took responsibility for their actions with an eye toward the future. The report provided 94 Calls to Action to address the legacy of the IRS system and to reconcile with Indigenous people.^[42] They are specific, concrete actions for Canada and Canadian society to include and integrate Indigenous People in Canadian society. Whether and how well Canada meets these Calls to Action remains to be seen. It will require a sustained effort to overcome the painful and irredeemable legacy of the IRS system.^[43]

Ireland’s approach to the Commission’s report reflects the power of the state to pretend to go through the motions in order to settle an issue.^[44] At the start, Ireland identified eight “Terms of Reference” for the Commission to investigate.^[45] These terms included studying the living conditions, identifying the causes of death and the methods of burials, and examining the adoption procedures.^[46] Such information presumably set the stage for blame. The Commission was to perform its Terms of Reference through a “Confidential Committee” that would record testimony of residents and staff.^[47] Here, the state had permission to take coercive action behind a veil of secrecy. The Commission initially forgot the victims as the Terms of Reference make no mention of providing redress, a correction made later in the process. In October 2020, the government exercised further control when legislation to withhold completed findings due to privacy concerns was signed into law.^[48] The Irish president indicated that the courts are an available recourse for survivors to challenge the law. This act certainly ensures the perpetuation of conflict and disharmony among survivors and the nation. Damage to the “fabric of the family and the community” is nonetheless sustained despite the government’s promise that family tracing will be possible with the information that is provided.^[49]

            The differing approaches may be explained in several ways. First, Canada’s Commission was an outgrowth of a class action suit, while Ireland’s was from national outrage over the gravesite discoveries and prior to any possibility of adjudication. Second, the cultural heritage of the wronged, vulnerable populations mattered. Indigenous culture has unique, traditional practices to draw upon, whereas Irish women have few of their own since they are subsumed by Western culture with its Christian overlay. Third, one tradition engages in a process of cooperation and solidarity to repair relationships while the other uses rules and principles to protect the individual.^[50] 

            Regardless of the reasons for the differing approaches, the efficacy of the approaches cannot be easily disputed. While Canada may be criticized for its failure to work on or complete all of its Calls to Action,^[51] Ireland appears to have merely altered a past tragedy into an ongoing controversy. It may be a matter of which country holds itself accountable. Indigenous Peacemaking considers responsibility to be primary to any dispute resolution.^[52] As a result, Canada took responsibility for its part in the IRS system. Canada admits to cultural genocide in its report: 

“Cultural genocide is the destruction of those structures and practices that allow the group to continue as a group. States that engage in cultural genocide set out to destroy the political and social institutions of the targeted group …. [M]ost significantly to the issue at hand, families are disrupted to prevent the transmission of cultural values and identity from one generation to the next. In its dealing with Aboriginal people, Canada did all these things.”^[53]

In contrast, Ireland bears none of the responsibility for the suffering and deaths of the women and children in the Mother and Baby Homes it funded for over seventy years. The Commission maintained:

“Responsibility for that harsh treatment rests mainly with the fathers of their children and their own immediate families. It was supported by, contributed to, and condoned by, the institutions of the State and the Churches. However, it must be acknowledged that the institutions under investigation provided a refuge – a harsh refuge in some cases -when the families provided no refuge at all.” ^[54]

            Taking responsibility for the past is not easy. However, a working partnership cannot be possible without it. Canada’s willingness to engage in Indigenous Peacemaking resulted in meaningful ways for the country and its people to move forward and build relationships. The contrasting example of Ireland’s use of an adversarial method demonstrates how conflict may be perpetuated and how a country can be mired in the past. Canada and Ireland serve as useful demonstrations for nations as they encounter disputes ranging from climate change to the pandemic. Traditional justice offers an alternative dispute resolution method that respects relationships as it acknowledges that “all action, healing or harmful, has a profound ripple effect on others.”^[55] Seeking to heal is a choice that countries can make if they are willing to learn from Indigenous peoples. 

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[1] Honouring the Truth, Reconciling for the Future: Summary of the Final Report of the Truth and Reconciliation Commission of Canada, The Truth and Reconciliation Commission of Canada, 3 (2015)  https://ehprnh2mwo3.exactdn.com/wp-content/uploads/2021/01/Executive_Summary_English_Web.pdf.

[2] Id. at 1.

[3] Id. at 3.

[4] Canada must reveal ‘undiscovered truths’ of residential schools to heal, The Guardian (published June 27, 2021) https://www.theguardian.com/global-development/2021/jun/27/canada-must-reveal-undiscovered-truths-of-residential-schools-to-heal.

[5] Executive Summary of the Final Report of the Commission of Investigation into Mother and Baby Homes, Dept. of Children, Equality, Disability, Integration and Youth, 17 (Jan. 12, 2021) https://www.gov.ie/

en/publication/22c0e-executive-summary-of-the-final-report-of-the-commission-of-investigation-into-mother-and-baby-homes/.

[6] Id.

[7] Id. at 2.

[8] Id. at 4.

[9] Id. at 13.

[10]  The Truth and Reconciliation Commission of Canada, supra note 1, at 1.

[11] Dept. of Children, Equality, Disability, Integration and Youth, supra note 5, at 64.

[12] Id. at 66.

[13] Kara Fox, “For Decades, Ireland’s Mother and Baby Homes were Shrouded in Secrecy. Some Say the Veil Still Hasn’t Lifted,” Cnn.com (Sep. 8, 2019) https://www.cnn.com/2019/09/07/europe/ireland-mother-and-baby-homes-intl/index.html.

[14]

Jorge Barrera, First Nations Infants Subject to “Human Experimental Work” for TB Vaccine in 1930s-40s, APTN Nat’l News, (July 24, 2013) https://www.aptnnews.ca/national-news/first-nations-infants-subject-to-human-experimental-work-for-tb-vaccine-in-1930s-40s/

[15] Id.

[16] Dept. of Children, Equality, Disability, Integration and Youth, supra note 5, at 71.

[17]  Ian Mosby & Erin Millions, Canada’s Residential Schools Were a Horror, Scientific American (August 1, 2021) https://www.scientificamerican.com/article/canadas-residential-schools-were-a-horror/.

[18] Dept. of Children, Equality, Disability, Integration and Youth, supra note 5, at 66.

[19] Id. at 63-64.

[20] Id. at 4.

[21] Ian Austen, ‘Horrible History’: Mass Grave of Indigenous Children Reported in Canada, New York Times (Oct. 5, 2021) https://www.nytimes.com/2021/05/28/world/canada/kamloops-mass-grave-residential-schools.html.

[22]  Mindy Weisberger, Remains of more than 1,000 Indigenous children found at former residential schools in Canada (July 13, 2021) https://www.livescience.com/childrens-graves-residential-schools-canada.html.

[23] Dan Barry, The Lost Children of Tuam, N.Y. Times (Oct. 28, 2017) https: //www.nytimes.com/interactive/2017/

10/28/world/Europe/tuam-ireland-babies-children.html.

[24] Barry Roche, Bessborough Babies may have been buried in local authority cemetery, suggests order, Irishtimes.com (Jan. 30, 2021)

[25] The TRC’s report fills six volumes and an appendix. The Final Report of the Mother and Baby Homes Commission of Investigation amounts to 2,865 pages. TRC’s report consists of the Commission’s findings  and transcriptions of survivor testimony.

[26] Robert Yazzie, Life Comes From It: Navajo Justice Concepts, 24 N.M. L. Rev. 175, 179 (1994).

[27] Id.

[28] Id. at 182.

[29] Id. at 184.

[30] Id. at 182.

[31] Id. at 178.

[32] Id.

[33] Timothy Connors, Exit, Pursued by a Bear: Why Peacemaking Makes Sense in State Court Justice Systems, Judges J. Vol. 55, No. 4, Fall 2016.

[34]  Indian Residential Schools Settlement Agreement, (May 8, 2006) https://www.residentialschoolsettlement.ca/ IRS%20Settlement%20Agreement-%20ENGLISH.pdf.

[35] Mandate for the Truth and Reconciliation Commission, Government of Canada, (May 8, 2006), https://www.

residentialschoolsettlement.ca/SCHEDULE_N.pdf.

[36] Final Report of the Commission of the Mother and Baby Homes, Gov.ie, (published Jan. 12, 2021) https://www.gov.ie/en/publication/d4b3d-final-report-of-the-commission-of-investigation-into-mother-and-baby-homes/.

[37] Weisberger, supra note 22.

[38] Government of Canada, supra note 35.

[39] Id.

[40] The Truth and Reconciliation Commission of Canada, supra note 1, at v. https://ehprnh2mwo3.exactdn.

com/wp-content/uploads/2021/01/Executive_Summary_English_Web.pdf.

[41]  Mandate for the Truth and Reconciliation Commission, Government of Canada, (May 8, 2006), https://www.residentialschoolsettlement.ca/SCHEDULE_N.pdf.

[42] The Calls to Action concerned with legacy involve child welfare, education, language and culture, health and justice. The calls to action concerned with reconciliation include the Canadian Government’s integration of the values of the United Nations Declaration on the Rights of Indigenous People, Equity for Aboriginal People in the Legal System, Missing Children, and Burial Information, Media, Sports and business.

[43] The Guardian, supra note 4.

[44] Unless Canada does more to repair the damage of the IRS system, the Indian Residential School Settlement Agreement and TRC will also be regarded as insincere overtures to improving the country’s relationship with Indigenous people.

[45] S.I. No. 57/2015 Commission of Investigation (Mother and Baby Homes and Certain Related Matters) Order 2015, https://www.irishstatutebook.ie/eli/2015/si/57/made/en/.

[46] Id.

[47] Id.

[48] TRC’s report and the attendant documents turned over by the Canadian government has been permanently archived at the National Centre for Truth and Reconciliation at the University of Manitoba.

[49] Connors, supra note 33.

[50] Id.

[51] Christopher Nardi, Much Work Remains on the Truth and Reconciliation Commission’s 94 Calls to Action, National Post (Jun 05, 2021), https://nationalpost.com/news/much-work-remains-on-the-truth-and-reconciliation-commissions-94-calls-to-action.

[52] Lauren van Schilfgaarde & Brett Lee Shelton, Using Peacemaking Circles to Indigenize Tribal Child Welfare, 11 Columbia J. of Race & Law, Vol. 11, No. 3, 24 (June 2021).

[53] The Truth and Reconciliation Commission of Canada, supra note 1, at 1.

[54] Dept. of Children, Equality, Disability, Integration and Youth, supra note 5, at 1.

[55] Connors, supra note 33.

Reflection: Juvenile (in)Justice for Indigenous Youth

By: Brittany Dutton-Leyda

I spent last summer interning at the United States Attorney’s Office for the District of New Mexico. I have always had an interest in criminal law, specifically defense, but I couldn’t turn down the opportunity to experience complex criminal law in a federal setting. I figured it would give me an opportunity to make sure prosecution wasn’t for me. Although the experience didn’t turn me into a future prosecutor, it did give me a deep respect for the noble work the Assistant U.S. Attorneys do every day. I was impressed and thankful to see good, ethical prosecutors working diligently to help victims of horrible crimes. However, I was extremely disheartened to learn of how damaging federal laws can be when applied to Indigenous people, especially juveniles.

The Major Crimes Act provides the federal government jurisdiction over major felony crimes committed on tribal lands and along with the Juvenile Delinquency Act,^[1] works to prevent tribes from adjudicating certain juvenile felony cases through tribal court. Accordingly, because of federal jurisdiction and these laws, a disproportionate number of Indigenous youth end up in the federal system and prisons. Even though the Indigenous population in the United States is only 1.5% of the total population, the disproportionate number of federally imprisoned Native American youth is staggering.^[2] “Approximately 61% of youthful offenders incarcerated in the Federal Prisons are Native Americans . . .The high percentage is due to sentencing under the FJDA, Major Crimes Act, and General Crimes Act. These Acts subject youthful offenders to federal prosecution and federal criminal sentencing guidelines instead of tribal sentencing.”^[3]

I witnessed this disparity firsthand when interning at the U.S. Attorney’s Office. I was assigned to Indian Country and was allowed to sit in on an armed robbery trial of a teenage Native American who was a first time offender and facing several years in federal prison.^[4] I was shocked to hear that someone so young that hadn’t committed any other crimes was facing such a long sentence. When I asked why that was, I was informed that it was due to federal jurisdiction and federal laws that administer these harsh sentences disproportionately to Indigenous people. It made me sad and angry to hear that simply because of this young man’s status as a federally recognized tribal member, he was facing a sentence that was essentially three times longer than he would have received through state or tribal court.

Even in cases that potentially could or are adjudicated through tribal courts, federal jurisdiction, federal laws, and federal courts often take over and replace tribal court rulings, severely undermining tribal sovereignty. This is often motivated by political factors that federal actors argue is in support of tribal sovereignty but is actually rooted in racism, the patriarchy, power, and control. An example of this is in United States v. Male Juvenile, in which a fourteen-year-old Indigenous boy was sentenced in Fort Peck tribal youth court to 180 days for theft and burglary, but was then retried in federal court and sentenced instead to twenty four months in federal prison.^[5] The court reasoned that because “the [Federal Juvenile Delinquency] Act limits the maximum term of official detention to the lesser of the period until the juvenile becomes 21 or the maximum term of imprisonment that would be authorized if the juvenile had been tried and convicted as an adult,” and considering the maximum sentence for burglary in Montana is twenty years, the sentence of two years was appropriate in this case.^[6]

The fundamental problem with this type of reasoning, along with the fact that it extremely disadvantages Native American youth, is that it completely lacks any consideration for cultural methods of restorative justice which many tribes are rooted in. “American Indians draw strength from their traditions, cultures, kinship, other relationships, and ceremonies. . .Some tribes have focused their efforts to develop culturally appropriate healing methods for their youth. Since tribal youth offenders in the juvenile justice system have demonstrated better outcomes when they receive targeted, culturally-and community-based services.”^[7]

Even the judiciary in New Mexico have expressed concerns about the problems with federal laws, federal jurisdiction, and how they negatively impact Native American youth. In United States v. Jerry Paul C., an Indigenous juvenile

…was convicted and sentenced as an adult on two counts of armed robbery with a firearm enhancement; conspiracy to commit armed robbery; and false imprisonment. He was sentenced to a prison term of ten years (one hundred twenty months). Under the Federal Sentencing Guidelines, he would have been subject to a sentence of approximately eighty-seven to one hundred and eight months, plus sixty consecutive months for use of a firearm during a crime of violence.^[8]

The court recognized that Native American juveniles tried as adults in federal court were unable to earn “good time” at the same rate as juveniles in state court, causing them to “serve a substantially larger percentage of their originally longer sentences than non-Indian youths tried as adults in the State courts.”^[9] Furthermore, the court acknowledged that this disparity is “because transfer to adult status in the federal system exposes them to far graver consequences than their non-Indian counterparts in the state system. This is especially ironic as one of the goals of the Federal Sentencing Guidelines was to address minority defendants receiv[ing] longer sentences than their White counterparts.”^[10]

Unfortunately in the case of Jerry Paul C., and as in most of these federal juvenile cases, the court’s hands were tied due to these federal laws. Although the court was willing to acknowledge the severe consequences of this disparity, the court ultimately concluded that “the possibility of a disproportionately long, federal prison sentence is largely the unfortunate product of Jerry Paul C.’s jurisdictional status as a Native American.”^[11]

Although the case I witnessed that sparked this outrage in me was not technically a juvenile case, it was the case of a young man who was facing the same issue due to federal jurisdiction, federal laws, and federal sentencing because of his status as a Native American. Thankfully in his case, he was acquitted of the charges and now has the opportunity at a second chance in life outside of the confinement of the walls of federal prison.

Who, if anyone, deserves a second chance at rehabilitation more than youth? Why should youth that don’t live on tribal lands be afforded a greater opportunity for rehabilitation than Indigenous juveniles? I certainly don’t know what the answer to this problem is, but I do know that a call to Congress in addressing and reforming federal laws and sentencing that severely disadvantage Native American youth could be a start in rectifying this gross injustice for Indigenous juveniles.

---

[1] 18 U.S.C. § 1153; 18 U.S.C. § 5031.

[2] LaTanya Gabaldon-Cochran, Federal and Tribal Court Jurisdiction Over Youthful Offenders in Indian Country, Tribal Judicial Institute, https://law.und.edu/npilc/tji/_files/docs/monograph-youthful-offenders.pdf.

[3] Id.

[4] United States v. Thompson, No. CR 19-1610-MV-4, 2021 WL 2530993, at *3 (D.N.M. June 22, 2021), as amended (June 22, 2021).

[5] Id. at 1021.

[6] Id. at 1021.

[7] National Congress of American Indians, Tribal Juvenile Justice, https://www.ncai.org/policy-issues/tribal-governance/public-safety-and-justice/Office_of_Juvenile_Justice_and_Dequincy_Prevention_Literature_Review_Tribal_Youth_in_the_Juvenile_Justice_System_-2016-.pdf, (last visited Nov. 17, 2021).

[8] United States v. Jerry Paul C., 929 F. Supp. 1406, 1408 (D.N.M. 1996).

[9] Id.

[10] Id.

[11] Id. at 1411.