Case Notes

Swinomish Tribal Community v. 2002 BMW: Determining When Civil Forfeitures Violate ICRA’s “Excessive Fines” Clause

By Alejandro Alvarado


Swinomish Tribal Community v. 2002 BMW is a Swinomish Tribal Court decision issued in March 2022 involving a civil forfeiture proceeding where the property owner challenges the tribe’s petition for forfeiture under the “excessive fines” clause of the Indian Civil Rights Act (ICRA). In this case, the Swinomish Tribal Court adopts a balancing test from the Indiana Supreme Court to determine whether the punitive value of the forfeiture violates ICRA’s “excessive fines” clause. Additionally, the court provides guidance to determine the value of the forfeited property and decides that the property owner has the burden of proof when arguing that the forfeiture violates the “excessive fines” clause under ICRA.

Facts and Background

A civil forfeiture is the legal process that allows governments, typically through law enforcement, to seize and then keep or sell property that is allegedly involved in criminal or illegal activity.[1] The facts of this case were disputed by the parties at the time of the decision.[2] However, the Court accepted as true the allegations contained in the Tribe’s Petition for Forfeiture and presumed that the search and seizure of the vehicle at issue was permissible.[3] 

On June 3, 2021, the 2002 BMW (hereafter “vehicle”) owned by San Juanita Lozano was searched and seized by the Swinomish Tribe.[4] Lozano’s son-in-law was driving the vehicle when various amounts of heroin, methamphetamine, cocaine, pills containing acetaminophen, and a cutting agent were found.[5] Under Swinomish Tribal Code STC 4-10.050, the Tribe filed a notice of seizure and intention to institute forfeiture proceedings against Lozano on June 11, 2021.[6]

On August 5, 2021, the Tribe filed a Motion for Summary Judgment alleging the vehicle was right for forfeiture under STC 4-10.050.[7] Although Lozano (hereinafter Respondent) failed to file a formal response, she submitted a letter providing that she had no knowledge of the criminal activity and explained the hardship she would suffer should the vehicle be forfeited to the Tribe.[8] Swinomish Defense Services filed an Amicus brief arguing for the prohibition of excessive fines under ICRA.[9] The trial court accepted the Amicus brief – a decision affirmed by the Swinomish Court of Appeals.[10] For this decision, the “matter came before the Court on the Respondent’s Motion to permit her to argue to deny the Tribe’s Petition for Civil Forfeiture . . . on the grounds the forfeiture would be an “excessive fine” in violation of [ICRA].”[11]

Issues & Holding

In Swinomish Tribal Community, the Swinomish Tribal Court addressed the following issues:

1. Does the “excessive fines” clause of the Indian Civil Rights Act provide an applicable defense in a civil forfeiture proceeding in the Swinomish Tribal Court?

2. If this is a valid defense, how should the Court determine if the forfeiture amounts to an excessive fine, and;

3. Does the owner of the property bear the burden of proving that a requested forfeiture is impermissibly excessive?[12]

For the first issue, the Court determined that “actions prosecuted under the Swinomish Tribe’s civil forfeiture statute are limited by the Indian Civil Rights Act prohibition against excessive fines.”[13]

For the second issue, the Court held that “the Court will determine if a forfeiture amounts to an excessive fine by weighing the proportionality of the fine in relation to the totality of the circumstances of the underlying offense.”[14]

Lastly, regarding the third issue, the Court determined that “the owner of the property subject to forfeiture bears the burden of proving that loss of the property would amount to an excessive fine.”[15]

Relevant Law and Analysis

Swinomish Tribal Law uses civil forfeiture as a punitive measure, and it does not provide an innocent owner defense against these procedures. Federal court decisions “have limited tribes from exercising their inherent jurisdiction to prosecute all crimes committed within reservation boundaries . . . tribes are left to other measures to protect the health and safety of [tribal] communities.”[16] Swinomish Tribal Code at STC 4-10.050 outlines the Tribe’s Seizure of Vehicles Used in Controlled Substances Violations. The statute describes the Tribe’s interest in forfeiting vehicles used in this capacity, as well as the process for tribal police and the tribal court to forfeit such vehicles.[17] The Court in this case determined that due to the role of forfeiture code within the Swinomish Tribe, STC 4-10.050 “must be seen as primarily punitive and thus subject to the limitations of ICRA.”[18] Swinomish Tribal Court precedent established that STC 4-10.050 does not provide for an innocent owner defense.[19] The void for an innocent owner defense establishes that the vehicle owner’s lack of knowledge “of the vehicle’s use in criminal conduct does not prevent the Tribe from seeking forfeiture of the vehicle.”[20]

I. The ICRA “excessive fines” clause provides an applicable defense to civil forfeiture proceedings because it mirrors the Eighth Amendment of the U.S. Constitution and it is not contrary to the Tribe’s unique history, customs, and practices.

The decision in Swinomish Tribal Community is a prime example of the interaction between tribal law and federal law. The Indian Civil Rights Act states that “No Indian tribe in exercising powers of self-government shall … require excessive bail, impose excessive fines, or inflict cruel and unusual punishments.”[21] Swinomish Tribal Court precedent established that “where the language of the ICRA and the federal constitution are so similar, federal case law interpreting the rights protected by that language will be most persuasive.”[22] However, the Swinomish Tribal Court is not bound to adopt federal case law if its application “is contrary to the Tribe’s unique history, customs and practices.”[23] This decision does not discuss whether protection against excessive fines is contrary to the Swinomish Tribe’s unique history, customs, and practices, other than noting that no arguments were brought forth by the parties to present the existence of such contrast.[24]

Here, the Swinomish Tribal Court found that the language from the ICRA at 25 U.S.C. § 1302(a)(7)(A) mirrors that of the Eighth Amendment of the United States Constitution.[25] As a result, the Swinomish Tribal Court referred to U.S. v. Austin, the leading Supreme Court case regarding the application of the Eighth Amendment’s excessive fines clause to civil forfeiture proceedings, in deciding the present case.[26] In Austin, the Supreme Court found that a fine is at the very least partial punishment when the civil forfeiture is tied to the use of property in a criminal drug offense.[27] Therefore, the fine must not be excessive in order for it to be constitutional under the Eighth Amendment.[28] Because the facts in Austin involved the innocent owner defense that does not exist in the Swinomish Tribal Code, the Court in this case noted that the purpose of forfeiture law, whether the defense exists or not, is to “induce owners to exercise greater care in transferring possession of their property.”[29] Relying on Austin, the Court concluded that the “excessive fines” clause of ICRA provides an applicable defense to civil forfeiture proceedings because the present case involves an owner who should have known her property might be used for criminal drug activity and drugs that harm the tribal community. [30] Thus, forfeiture of the vehicle will discourage property owners in the Respondent’s position from transferring the property to be used in that nature.[31] Consequently, the cause of action presented the exact type of activity and punishment that requires the relationship between forfeiture and ICRA to be reviewed.[32]

II. The Swinomish Tribal Court adopts the Timbs II Proportionality Test to examine whether the forfeiture amounts to an excessive fine.

In the present case, the Court accepted the parties’ joint recommendation to adopt the proportionality test established by the Indiana Supreme Court in State v. Timbs.[33] The balancing test provided by this Indiana Supreme Court decision reviews the following factors to determine whether a civil forfeiture violates the Eighth Amendment’s “excessive fine” clause: (1) the role the property had in the crime; (2) the value of the property and if it was ‘grossly disproportionate’ to the underlying offense; and (3) the culpability of the owner.[34] Additionally, the Swinomish Tribal Court clarifies that under the totality of the circumstances, the court must decide if the punitive value of the forfeiture is grossly disproportional to the gravity of the underlying offense(s) and the owner’s culpability.[35]

The Swinomish Tribal Court rejected the Tribe’s arguments to omit the owner’s culpability analysis based on the lack of an innocent owner defense under Swinomish Tribal Code.[36] Instead, the Court held that the owner’s lack of culpability is important to weigh the proportionality of the forfeiture, and that the court will give greater weight to the “highly culpable” owner.[37] By considering the owner’s culpability, the innocent owner defense is partially incorporated into the analysis as a mitigating factor instead of an established defense against civil forfeiture.

III. The property owner bears the burden of proving that a requested forfeiture is impermissibly excessive because the value of the forfeiture is relative to the owner’s economic means.

The Court established that determining the value of the property subject to civil forfeiture under the second factor of the proportionality test can be determined by an objective market value of the property or a subjective value of the property to its owner. [38] Here, the Court relied on the first Timbs decision and reasoned that the subjective value of the property to the owner may be proper because “taking away the same, piece of property from a billionaire and from someone who owns nothing” is not an equal punishment.[39] The Court further found that placing the burden of proving that a forfeiture is an excessive fine is supported by law.[40]


In its decision, the Court states that “civil penalties, including forfeiture of property, provide tribes with mechanisms to enforce or discourage conduct within tribal lands by non-indians.”[41] Despite not fitting neatly within the issues expressed by this decision, this statement has the potential to influence future case law and legislation within the Swinomish Tribal Community, as well as that of other tribes.

Overall, this decision provides guidance with regard to (1) the role of civil forfeiture penalties in tribal communities; (2) the proportionality test used to determine when a civil forfeiture action violates the “excessive fines” clause under ICRA; and (3) outlining the burden of proof imposed upon the property owner that challenges a civil forfeiture action. The holdings in this case will provide guidance for future cases that arise within the Swinomish Tribal Courts and may also be persuasive authority for courts of other Tribal communities. Specifically, the Court’s interpretation of the relationship between the Eighth Amendment of the U.S. Constitution, ICRA, and local Tribal codes provides helpful insight to the complex relationships between these jurisdictions.

[1] Wex Definitions Team, civil forfeiture, Cornell Law School Legal Information Institute [LII], (last updated August 2022).  See Swinomish Tribal Code, STC 4-10.050.

[2] Swinomish Tribal Cmty. v. 2002 BMW, No. CVCF-2021-0015, 2022 WL 3723225, at *1 (Swinomish Tribal Ct. Mar. 1, 2022).

[3] Id.

[4] Id.

[5] Id.

[6] Id.

[7] Id.

[8] Id.

[9] Swinomish Tribal Cmty., 2022 WL 3723225, at *1.

[10] Id.

[11] Id.

[12] Id.

[13] Id.

[14] Id.

[15] Id.

[16] Id. at *2 (citing Oliphant v. Suquamish Indian Tribe, 435 U.S. 191 (1978)).

[17] Swinomish Tribal Code, STC 4-10.050(A) – (F).

[18] Swinomish Tribal Cmty., 2022 WL 3723225, at *2.

[19] See Swinomish Tribal Code, STC 4-10.050, Annotations (citing In re 1999 Ford Escort 500-VEX, CVFF-2011-0013 (Swinomish Tribal Ct. July 18, 2011)).

[20] Swinomish Tribal Cmty., 2022 WL 3723225, at *2.

[21] 25 U.S.C. § 1302(a)(7)(A).

[22] Swinomish Tribal Cmty., 2022 WL 3723225, at *1 (citing SITC v. Reid, CRCO-2011-0079 (March 2012)).

[23] Swinomish Tribal Cmty., 2022 WL 3723225, at *1 (citing SITC v. Stone, CRCO-2004-0324 (JAN 30, 2007)).

[24] Id. at *2.

[25] Id. at *1.

[26] U.S. v. Austin, 509 U.S. 602, 602-03 (1993); Swinomish Tribal Cmty., 2022 WL 3723225, at *2.

[27] Austin, 509 U.S. 602 at 602-03.

[28] Swinomish Tribal Cmty., 2022 WL 3723225, at *2.

[29] Id.

[30] Id.

[31] Id.

[32] Id.

[33] State v. Timbs, 169 N.E.3d 361 (Ind. 2021) [hereinafter Timbs II]; Swinomish Tribal Cmty., 2022 WL 3723225, at *3.

[34] Id.

[35] Id.

[36] Id.

[37] Id.

[38] State v. Timbs, 134 N.E.3d 12, 36 (Ind. 2019).

[39] Id.

[40] Swinomish Tribal Cmty., 2022 WL 3723225, at *3.

[41] Id. at *2.


Casey v. Muscogee (Creek) Nation: An Examination of the Muscogee (Creek) Nation’s Adoption of the U.S. Supreme Court’s Barker Test

By Mikayla Ortega-Speight


In Tulsa County, Oklahoma, on a hot day in mid-June, Brian Scott Casey violated a protective order when he had an altercation with a man that ultimately led to Casey’s arrest and subsequent placement into the Muscogee (Creek) Nation’s custody.[i] Unbeknownst to Casey, that day in mid-June would be his last day of freedom for just over the next 180 days.[2]

Casey’s six months in jail resulted from a change in legislation by the Muscogee (Creek) Nation which left the right to a speedy trial in an ambiguous state.[3] This case was one of first impression for the Muscogee (Creek) Nation Supreme Court as they determined what the “right to speedy trial” means for Indians and non-Indians who are within the Muscogee (Creek) Nation’s jurisdictional bounds.[4]

This article will explore the Supreme Court of the Muscogee (Creek) Nation’s decision to adopt the four-factor test from Barker [5], how the case was decided, and potential implications of the court’s opinion. [6]


The Muscogee (Creek) Nation previously affirmed that “all criminal defendants prosecuted within the Muscogee (Creek) Nation Courts are entitled to certain due process rights as defined by statute.”[7] These due process rights, validated through the Indian Civil Rights Act of 1968, made the Sixth Amendment right to a speedy trial applicable to Indian tribes.[8]

Sovereign nations, like the Muscogee (Creek) Nation, are under no obligation to adopt any part of the U.S. Constitution. However, the Muscogee (Creek) Nation further protected this due process right through M(C)NCA Title 14, § 1-303(F) {hereinafter § 1-303(F)] which originally stated:

The defendant shall have the right to have a speedy public trial, which shall be held within one-hundred and eighty (180) days of the date of the defendant’s arraignment if he or she has made bail and within ninety (90) days of the date of the defendant’s arraignment if he or she is incarcerated due to his or her failure or inability to make bail, unless the defendant waived his or her right to a speedy trial, said trial to be held before an impartial judge or jury as provided by this Title or other applicable law of the Nation.[9]

However, in 2013 the United States Congress passed the Violence Against Women Reauthorization Act (VAWA), granting tribes the right to “exercise their sovereign power to investigate, prosecute, convict, and sentence both Indians and non-Indians who assault Indian spouses or dating partners or violate a protection order in Indian country.”[10]

Following the passage of VAWA, the Muscogee (Creek) Nation amended § 1-303(F) and “removed certain hard deadlines concerning the right to speedy trial.”[11] The law was amended to read, ”[t]he defendant shall have the right to have a speedy public trial. The defendant may waive his or her right to a speedy trial, otherwise, said trial is to be held before an impartial judge or jury as provided in this Title or other applicable law of the Nation.”[12]

The original law ensured that a defendant who was out on bail would have a trial held within 180 days and that a defendant who was incarcerated, because they could not make bail, would have a trial within 90 days.[13] The amended law, however, removed these deadlines and created a “void… concerning the outer boundaries of a speedy trial violation.”[14]

Casey v. Muscogee (Creek) Nation was the Nation’s first opportunity to define the process for determining speedy trial violations and to clarify how the Nation will interpret the amended law.[15]

Casey v. Muscogee (Creek) Nation

Facts & Procedural History

In December of 2020, just a few days before Christmas, the Tulsa County District Court for the State of Oklahoma issued a protective order against Brian Scott Casey, ordering him to stay away from the petitioning individual who lived in Tulsa, Oklahoma.[16] Less than six months later, in mid-June, a violent altercation occurred at the petitioner’s residence between Brian Scott Casey and a third party.[17]

With the passage of VAWA, the Muscogee (Creek) Nation obtained jurisdiction over non-Indian defendants who “violate a protection order in Indian country.”[18] Having violated the protective order on Muscogee (Creek) Nation’s land, Casey was arrested and placed in the Muscogee (Creek) Nation’s custody.[19] Casey was charged with Aggravated Assault and Violation of Protective Order.[2o]

Nine days later, in his first appearance before the Muscogee (Creek) Nation District Court, a $20,000 bond was set.[21] Because Casey was unable to make bond, he remained in the Nation’s custody.[22]

Notably, Casey’s trial did not occur for one hundred and eighty-one days after his initial arrest.[23] During this time, however, he was charged, provided a public defender, had his bond reduced to $10,000, and attended a pre-trial conference.[24] Unable to make the reduced bond, Casey remained in jail for the full one hundred and eighty-one days.[25]

Before the commencement of his bench trial, Casey pled guilty to the Violation of a Protective Order.[26] At the bench trial for his Aggravated Assault charge, Casey presented the statutory defense of duress arguing he reacted violently in “self-defense against a larger individual that had made previous threats” to Casey.[27] The court disagreed and found that Casey had a “reasonable opportunity to escape any imminent danger or serious bodily injury.”[28] Therefore, the statutory defense was unavailable to him.[29]

The District Court also addressed Casey’s right to speedy trial and found that “given the circumstances of courthouse closures due to COVID-19… the time-period in question was reasonable.”[30]

Just two weeks later, Casey appealed to the Muscogee (Creek) Nation Supreme Court.[31]

Issue and Holding

Casey presented a key issue for the Muscogee (Creek) Nation Supreme Court: “Does the Muscogee (Creek) Nation recognize a right to speedy trial and, if so, how are violations of this right determined?”[32]

In the end, the Muscogee (Creek) Nation Supreme Court determined that the Nation recognizes the right to speedy trial and chose to adopt the United States Supreme Court four-factor balancing test established in Barker v. Wingo.[33]


Casey presented the first opportunity for the Nation’s Supreme Court to determine what the right to speedy trial means within the Nation after having amended their speedy trial violation legislation. The Court “reviewed various options from other jurisdictions to assist in crafting a path forward for the Muscogee (Creek) Nation Courts.”[34] For instance, the Nation’s Supreme Court reviewed the statutory law regarding the speedy trial right from the State of Oklahoma.[35]

Nonetheless, the Nation’s Supreme Court focused primarily on the U.S. Supreme Court’s four-factor balancing test in Barker v. Wingo.[36] In Barker, the U.S. Supreme Court considered three options: (1) create its own hard deadlines, (2) consider speedy trial violations only in cases where the defendant demanded a speedy trial, and (3) a balancing approach in “which the conduct of both prosecution and the defendant are weighed.”[37] In the end, it embraced the third option, a balancing test.[38]

The factors that the U.S. Supreme Court included within the balancing test are:

(1) the length of the delay,

(2) the reason for the delay,

(3) whether the defendant had asserted his/her right to speedy trial, and

(4) whether there was prejudice to the defendant due to the delay.[39]

By choosing these factors, the U.S. Supreme Court acknowledged that it is “impossible to determine with precision when the right has been denied” and that the “right to speedy trial is necessarily relative.”[40] As a result, the Barker test has withstood the test of time and been used by courts in the decades since.

Casey presented a compelling question for the Muscogee (Creek) Nation to resolve for itself and its tribal law. In fact, the Muscogee (Creek) Nation Supreme Court ultimately chose to adopt the four-factor balancing test, because “such an approach [was] consistent with the principles of justice and fairness aspired to within the Courts of the Muscogee (Creek) Nation.”[41] Consequently, the Nation’s Supreme Court reversed the lower court’s order and remanded the case back to the District Court to determine Casey’s speedy trial violation claim using the Barker four-factor test.[42]

Implications of Casey v. Muscogee (Creek) Nation

The passage of VAWA by the United States Congress empowers tribes to protect their community members in cases of domestic disputes and/or violence.[43] As a requirement of implementing VAWA, Congress insisted that “the tribe’s criminal justice system fully protect defendants’ rights under federal law.”[44] Thus, upon implementing VAWA, the Muscogee (Creek) Nation amended their laws pertaining to speedy trial violations to ensure that defendant’s rights were fully protected.

Constitutional rights are seen as critical for United States citizens. When Congress passed VAWA, tribes gained jurisdiction over some cases of domestic disputes and violence.[45] However, Congress recognized the need to extend Constitutional protections to those defendants who may be prosecuted within the tribal court systems.[46] The VAWA heightens the responsibility of those tribes participating to protect constitutional rights and to develop laws that comply with federal protections. In creating laws that align with the U.S. Constitution and federal laws, the Muscogee (Creek) Nation guarantees that defendants are prosecuted fairly, which is likely a concern of non-tribal members who may be unacquainted with the tribal court system.

The Muscogee (Creek) Nation’s need for parameters regarding speedy trial violation claims proved to be crucial because just two weeks after Casey was decided, another speedy trial rights violation case came before the Nation’s Supreme Court. In Vandecar v. Muscogee (Creek) Nation, the defendant was held in the Nation’s custody for 248 days before criminal proceedings began.[47]  The Nation’s Supreme Courtaffirmed Casey and ordered the lower court to apply the Barker four-factor balancing test for the issuance of a timely ruling on the speedy trial right violation.[48]

Ultimately, the Nation’s adoption of the Barker test allows its courts to review alleged violations of speedy trial rights on a case-by-case basis just as the U.S. Supreme Court does. Consequently, the Muscogee (Creek) Nation reduces the likelihood of allegations that defendants are being unfairly prosecuted in a court permitting constitutional rights violations.


Casey v. Muscogee (Creek) Nation was the Nation’s first opportunity to create foundational legal precedent regarding speedy trial violations after the passage of VAWA. The Nation adopted the U.S. Supreme Court’s four-factor Barker test. Time will reveal how the Nation applies each of these factors and whether additional factors or parameters are needed. In adopting this factually dependent four-factor test, the Nation protects those within their own community while also showing they will fairly adjudicate these types of disputes. 

[1] Casey v. Muscogee (Creek) Nation, SC-2021-11, at 2, ___Mvs. L.R.___ (August 1, 2022).

[2] Id. at 3.

[3] 7.

[4] Id.

[5] Barker v. Wingo, 404 U.S. 1037 (1972).

[6] Id.

[7] Casey, SC-2021-11 at 5.

[8] Id. at 6.

[9] Id. at 7.

[10] 2013 and 2022 Reauthorizations of the Violence Against Women Act, U.S. Dep’t of Just., (Sept. 20, 2022),

[11] Casey, SC-2021-11 at 7.

[12] M(C)NCA Title 14, § 1-303 (F).

[13] Id.

[14] Casey, SC-2021-11 at 7.

[15] Id.

[16] Id. at 2.

[17] Id.

[18] 2013 and 2022 Reauthorizations of the Violence Against Women Act, U.S. Dep’t of Just., (Sept. 20, 2022),

[19] Casey, SC-2021-11 at 2.

[20] Id. at 3.

[21] Id. at 2.

[22] Id.

[23] Id.

[24] Id. at 2-3.

[25] Id.

[26] Id. at 3.

[27] Id.

[28] Id.

[29] Id. at 3-4.

[30] Id. at 4.

[31] Id.

[32] Id. at 5.

[33] Id. at 9.

[34] 7-8. 

[35] Id. at 8.

[36] Id. at 7-8.

[37] Id. at 9.

[38] Id.

[39] Id.

[40] Id.

[41] Id.

[42] Id. at 9-10.

[43] 2013 and 2022 Reauthorizations of the Violence Against Women Act, U.S. Dep’t of Just., (Sept. 20, 2022),

[44] Id.

[45] Id.

[46] Id.

[47] Vandecar v. Muscogee (Creek) Nation, SC-2022-01, at 6, ___Mvs. L.R.___ (August 30, 2022).

[48] Id. at 7.


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 280th Public Law enacted by the 83rd 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.

[1],Tribal Governance, National Congress of American Indians (last visited May 7, 2022),

[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),

[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),

[6] Eugene Sommers, Matthew Fletcher & Tadd Johnson, It’s Time to End Public Law 280, Native Governance Center (last visited May 7, 2022),

[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.

[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),

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

[14] Michelle Nijhuis, Tribal Talk, Smithsonian Magazine (Nov. 1, 2003)

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

[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.

Events History Informational News Student Reflections

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.

[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 (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),

[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.

[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, (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.

Poetry Uncategorized

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.

Commentary Events Indigenous Law

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, (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),

[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),

[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),

[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.