Categories
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, 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).

Categories
Commentary

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. 


[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.

Categories
Commentary Criminal Law

The Violence Against Women Act and The Necessity to Protect Indigenous Women

By: Bree Barnett

Introduction

            The Violence Against Women Act (VAWA) is once again up for reauthorization in 2021. VAWA has been reauthorized only three times since its enactment in 1994, in hopes of combatting the pervasive crimes that were being committed against women. Since its original passage in the mid-nineties, the act has been somewhat successful, with the overall rate of domestic violence declining tremendously.[1] However, the problem is nowhere close to being eliminated, as one in three women will still experience domestic violence in their lifetime. The statistics for Indigenous women are even bleaker, with 4 in 5 experiencing domestic violence and more than 1 in 2 having experienced sexual violence.[2] Native American women continue to suffer the highest rates of forcible sexual assault and experience almost 10 times the rate of domestic violence compared to the rest of the United States.[3] This gap can be partially attributed to the historic failures of VAWA’s protections for Indigenous women. This paper will discuss these failures, the newest iteration of the bill, and how federal protections like VAWA could be strengthened to provide adequate protections for Indigenous women.

The History of VAWA and its Failure to Protect Indigenous Women

            The original version of VAWA was one of the first federal packages that was designed to end violent crimes that are often perpetuated against women like domestic violence and sexual assault. The bill was created to provide funding for victim services, strengthen criminal protections for these crimes, and also attempted to make the process of receiving a restraining order easier. While this bill felt like a victory to the many women’s rights activists who had lobbied tirelessly to implement this legislation, in many ways it fell short, especially for Indigenous women across America. Indigenous women were not even a group that was specifically named and targeted for help in the bill until its 2005 authorization, despite many statistical showings that they are one of the most vulnerable populations for these kinds of crimes.[4] It took a great deal of pushback for the 2005 reauthorization of the bill to implement provisions that would combat gender-based violence on tribal land.

            However, VAWA has continuously fallen short due to the complications and conflicts presented by criminal jurisdiction on tribal lands. Criminal jurisdiction in Indian country has long been divided amongst federal, tribal, and state governments; a determination that is largely dependent upon the facts of the case. The race of the perpetrator, the seriousness or the type of crime, and the race of the victim all influence which governmental body will have jurisdiction to try the case.[5] These issues are further compounded by a Supreme Court case which severely limited the ability of tribal governments to prosecute non-native offenders for crimes committed in Indian country. In the 1978 case, Oliphant v. Suquamish Indian Tribe, the Supreme Court held that tribal courts could not exercise criminal jurisdiction over non-native defendants.[6] This case has created distinct issues for victims of sexual assault and domestic violence, as a majority of the crimes against Native American women are perpetuated by non-native men.[7] Oliphant disempowered tribal governments and revoked their ability to pursue justice for the women in their communities who are suffering domestic violence and sexual assault at the hands of non-native men. Congress’s failure to include the necessary provisions to further expand the jurisdiction of tribes and provide a safe harbor for Native American women meant that VAWA was largely useless to tribes and the women in their communities.

            It has taken Congress many years and several reauthorizations to create even a partial fix to the limitations created by Oliphant. In 2013, Congress amended VAWA and the Indian Civil Rights Act [8] to authorize “special domestic violence criminal jurisdiction,” which granted tribal courts oversight of criminal cases against non-native offenders who commit domestic violence related offenses under some very limited circumstances.[9] Importantly, the “special domestic violence criminal jurisdiction” did not grant jurisdiction over many of the crimes that VAWA intended to protect women from. Tribal courts still lack the authority to hear cases involving sexual assault, sex trafficking, and stalking. Additionally, while this provision did grant tribes the authority to oversee domestic violence cases occurring within the context of a romantic relationship between the victim and the perpetrator, tribal authority does not apply if the non-native defendant lacks sufficient ties to the tribe.[10] For tribes to benefit from this jurisdictional expansion, the defendant must reside on tribal lands, be employed on tribal lands, or be the spouse of a tribal member who resides on tribal land. Therefore, if the crime did not take place on tribal land, or the defendant lacked sufficient ties to the tribe, the tribal court still did not have jurisdiction to oversee the case. Additionally, for Tribes to even be eligible to utilize the jurisdictional expansion granted in this amendment, Tribal nations have to agree to uphold many of the enumerated rights of the non-native defendants and ensure that they are afforded the due process rights that exist under the United States Constitution..[11] Therefore, Indigenous women who are assaulted outside of their tribe’s territory, belong to a tribe who did not implement VAWA’s special jurisdiction, or have been assaulted by a defendant with insufficient ties to the tribe cannot turn to their own tribal government to pursue justice.

            The 2013 version of the bill stands as the most current rendition, due to the inability of Congress to reauthorize an updated version in 2018, after numerous disputes around what protections should be amended. Although VAWA has technically expired, funding for the programs remains in effect and continues to provide support for women across the United States. Ultimately, no new provisions or expansions in funding can take place unless Congress can successfully agree on the amendments this year.

The Proposed 2021 Legislation

            The 2021 amendments seek to maintain and expand many of the existing protections that were later included for Indigenous women. For example, new provisions of this bill seek to restore tribal jurisdiction over non-native perpetrators for crimes of sexual assault, stalking, child abuse, elder abuse, assault against law enforcement officers, and trafficking if they are committed on tribal lands, eliminating the earlier mentioned caveats.[12] The proposed amendments also aim to create a pilot project for up to five tribes in Alaska to implement special criminal jurisdiction. This is important because Alaska Native lands were not included as part of Indian country within any prior enactments of this bill and were therefore afforded no protections under VAWA.[13]

Additional portions of this bill also seek to support tribes in combating the human rights crisis of missing and murdered Indigenous women. As it stands, Indigenous women and girls are disproportionately impacted by homicide and sexual assault. As of 2016, the National Crime Information Center reported almost 6,000 cases of missing Indigenous women, and by comparison the U.S. Department of Justice only showed 116 missing Indigenous women.[14] The jurisdictional issues between state, local, federal and tribal law enforcement, combined with a lack of communication between the authorities responsible for tracking missing persons, make it nearly impossible to investigate cases of missing Indigenous women, thereby creating a legal vulnerability. [15] Section 901 of the 2021 bill clarifies the responsibilities of federal, state, tribal and local governments when responding to cases of missing and murdered Indigenous women, in the hopes that Congress can facilitate a path forward in facing the epidemic of these crimes.[16]

Continued Obstacles to Justice

            Despite the fact that each reiteration of VAWA has sought to improve upon the legislation and expand the availability of justice to Indigenous victims, the 2021 version of the bill falls short in its protections. An overarching theme present in federal legislation is that many politicians lack respect for and trust in the tribal court system, which is apparent in VAWA’s issues surrounding special criminal jurisdiction. One of the reasons many limitations exist to prevent tribes from holding jurisdiction over non-native defendants is because many elected officials and United States’ courts are concerned that tribal courts would not provide sufficient constitutional protections to non-native offenders accused of crimes and are simply not trusted enough to oversee the prosecution of these defendants.[17] These concerns infringe on tribal sovereignty and prevent tribal nations from being able to protect their members from serious violent crime. Congress must recognize the legitimacy of tribal courts and implement legislation that overturns the limited tribal jurisdiction established in Oliphant. If an individual commits a crime on tribal lands and victimizes a member of that tribal nation, the individual should be held liable to the justice system and codes of that tribe.

However, due to the historical limitations on tribal court systems, tribal nations would likely need a great deal of support to create and accommodate to taking on the prosecution of crimes that target Indigenous women. As it currently stands, many tribal codes do not contain laws against severe and violent offenses because these kinds of crimes have always fallen underneath the purview of the federal codes. Other obstacles may depend on the specific tribe, as some nations may have small-scale or limited funding for police forces, which pose issues in terms of the time and manpower available to take over the prosecution of offenses against women. Therefore, the road to tribal empowerment will not be accomplished overnight and is not a simple fix. The government must authorize tribal nations to protect their people and provide adequate funding so that they are actually equipped to develop strong codes, appropriate police forces, and effective judicial systems. Otherwise, simple reauthorizations of federal policies like VAWA will only be small steps in the right direction. To truly protect Indigenous women, Congress must uphold and support tribal sovereignty. Until then, the impact of VAWA will be severely limited and its true purpose will continue to be undermined.


[1] See generally Jennifer L. Truman and Rachael E. Morgan, Nonfatal Domestic Violence, 2003-2012, Bureau of Justice Statistics (2014), https://bjs.ojp.gov/content/pub/pdf/ndv0312.pdf.

[2] Ending Violence Against Native Women, Indian Law Resource Center, https://indianlaw.org/issue/ending-violence-against-native-women (last visited Nov. 4, 2021).

[3] Id.

[4] Sheena L. Gilbert, Emily Wright, and Tara Richards, Federal Policy has Failed to Protect Indigenous Women, The Conversation (June 18, 2021, 8:32 AM), https://theconversation.com/federal-policy-has-failed-to-protect-indigenous-women-159679.

[5] Introduction to the Violence Against Women Act, Tribal Court Clearinghouse, https://www.tribal-institute.org/lists/title_ix.htm (last visited Oct. 23, 2021).

[6] See generally Oliphant v. Suquamish Indian Tribe,435 U.S. 191 (1978).

[7] Lyndsey Gilpin, Native American Women Still Have the Highest Rates of Rape and Assault, High Country News (June 7, 2016), https://www.hcn.org/articles/tribal-affairs-why-native-american-women-still-have-the-highest-rates-of-rape-and-assault.

[8] The Indian Civil Rights Act of 1968, 25 U.S.C. §§1301-1304 (2013).

[9] Tribal Court Clearinghouse, supra note 5.

[10] Id.

[11] Special Domestic Violence Criminal Jurisdiction, The National Congress of American Indians, https://www.ncai.org/tribal-vawa/sdvcj-overview/due-process-requirements (last visited Nov. 1, 2021).

[12] Violence Against Women Act of 2021, H.R. 1620, 117th Cong. § 903 (2021). Available at https://www.congress.gov/bill/117th-congress/house-bill/1620/text.

[13] Charlene Koski, Reauthorization Efforts Continue, Including Focus on Expanding Jurisdiction for Alaska Native and Other Tribes, The National Law Review (Aug. 6, 2021), https://www.natlawreview.com/article/vawa-reauthorization-efforts-continue-including-focus-expanding-jurisdiction-alaska.

[14] Murdered Missing and Indigenous Women, Native Women’s Wilderness, https://www.nativewomenswilderness.org/mmiw (last visited November 1, 2021).

[15] Id.

[16] Violence Against Women Act of 2021, H.R. 1620, 117th Cong. § 901 (2021). Available at https://www.congress.gov/bill/117th-congress/house-bill/1620/text.

[17] Maura Douglas, Sufficiently Criminal Ties: Expanding VAWA Criminal Jurisdiction for Indian Tribes, 166 U. Pa. L. Rev. 745, at 774-775 (2018).

Categories
Commentary History Informational

Uranium Contamination of the Puerco River: 1979-Present

By: Nina Chester

Uranium and uranium mining have been a constant force in my life. Three years before I was born, on July 16, 1979, a uranium mill tailings pond[1] ruptured at the United Nuclear Corporation (UNC) uranium mining operation in Church Rock, New Mexico – 40 miles upstream from my hometown of Lupton, Arizona on the Navajo Nation.[2] The tailings pond released “94 million gallons of [highly acidic] mill waste fluids and 1100 tons of tailings solids,” including “uranium-238, thorium-230, radium-226, lead-210 and polonium-210” into Pipeline Arroyo, a tributary of Puerco River.[3] Additional released contaminants included “elemental lead, molybdenum, arsenic and selenium,” “acidity,” and “high levels of dissolved salts, particularly sulfate.”[4] Adding insult to injury, the rate at which the waste traveled was helped along by a “flow of 5000 gallons per minute of water continuously pumped into Pipeline Arroyo by routine dewatering operations at [further] upstream uranium mines.”[5] The flow eventually ceased near Chambers, Arizona, “100 river miles downstream from the UNC mill.”[6]

The incident is now known as the Church Rock Uranium Mill Spill of 1979. It is “the largest single release of liquid radioactive waste recorded in the United States and the fifth largest release of solid radioactive waste.”[7] It is also likely one of the quietest large-scale radioactive spills to occur in the United States. Lupton community members cannot recall being fully informed of the dangers posed by the radioactive material, and scientific research regarding the impact to health and the environment was not reported to them.

On October 22, 1979, the House Subcommittee on Energy and the Environment of the Committee on Interior and Insular Affairs held an Oversight Hearing on the “Mill Tailings Dam Break at Church Rock, New Mexico” in Washington, D.C.[8] Both the Subcommittee and the Committee were chaired by Representative Morris K. Udall from Arizona.[9] In the Chairman’s opening statement he declared, “our concern for these matters derives from three areas of the Interior Committee’s jurisdiction, dam safety, on which we have legislated; Indian affairs and finally regulation of the nuclear industry.”[10] The subcommittee consulted “Dr. Bruce Tschantz, a dam safety expert and professor of civil engineering at the University of Tennessee” to review “pertinent engineering assessments and licensing materials.”[11] Dr. Tschantz found issue with the proposed dam materials, the dam design, and surmised that the quality assurance procedures detailed in the design plan were not followed.[12] The Army Corps of Engineers also submitted a report for the hearing, which comported with Dr. Tschantz’s assessments and highlighted three key findings.[13] The report found that the planned buttress of tailings against the dam for reinforcement was never completed, the dam was showing signs of cracking in 1977 and 1978 but State regulatory authorities were not notified by the company, and “the design of the dam did not incorporate all the necessary protective measures recommended by the company’s engineering consultant.”[14]

Shortly after the spill, the “subcommittee held an oversight hearing on the Nuclear Regulatory Commission’s agreement States program, under which the State of New Mexico is permitted to license tailings impoundments.”[15] It found “significant problems” with both the management of the program by the federal commission and the state’s technical and regulatory capacity.[16] Therefore, as stated by the Chairman, “at least three and possibly more Federal and State regulatory agencies had ample opportunity to conclude that such an accident was likely to occur.”[17]

At the time of the hearing, the total cleanup completed by UNC was less than one percent and UNC was facing a number of problems.[18] Mr. Paul Robinson, environmental analyst for the Southwest Research and Information Center remarked that, in addition to UNC’s inability to build and operate to the standards they were licensed at, they miscalculated the amount of tailings they could back-fill and were left with excess tailings, which hold 85 percent of the original radioactivity.[19] Mr. Frank E. Paul, Navajo Vice-Chairman, remarked that “a smaller incident at Three Mile Island commanded a Presidential Commission. Yet today’s hearing represents the first serious national concern for this incident, and it is now over 3 months since the dam failed.”[20]

A post-spill summary report by the State of New Mexico Health and Environment Department’s Environmental Improvement Division found that “the dewatering effluents and natural runoff that now dominate surface water flows contain environmentally significant levels of radioactive lead, radium and uranium, as well as elemental lead, selenium and molybdenum. [ . . . ] Most of these substances come from uranium mine dewatering effluents.”[21] In other words, UNC and other mine operators in the Church Rock area were using the Puerco River as a radioactive dump for years.

An additional aspect described in New Mexico’s report was the land ownership pattern along the Puerco River. “Checkerboard” is a swath of land containing a mixture of property types all within close proximity of one another.[22] The land UNC leased for its mill and tailings pond was categorized as “fee simple” land, owned by non-Indian lessors, and it was not considered reservation land.[23]  

Kee Joe Benally, a well-regarded community member from Lupton, attempted to sue UNC Resources, Inc. in Navajo Tribal Court. Benally had the support of the Navajo Tribal Council via legislation passed on February 13, 1980, expanding the civil jurisdiction of the Navajo Nation Courts to include civil actions “in which the defendant is a resident of Navajo Indian country, or has caused an action to occur in Navajo Indian country.”[24] Unsurprisingly, the District Court of New Mexico held that:

Navajo Tribal Court jurisdiction over non-Indian civil defendants necessarily involves the tribe’s external relations, and it is not a power needed to protect tribal self-government because the tribal government has always been able to function without it. Such jurisdiction is therefore not part of the tribe’s retained sovereignty.[25]

Accordingly, the Navajo Tribe had no jurisdictional authority to take matters into its own sovereign hands.[26] Upon issue of judgment, UNC opportunistically requested a declaration of non-liability as a tortfeasor, which the court refused.[27]

The New Mexico post-spill summary report noted three potential human contact mechanisms: “[w]ater-borne contaminants in the Puerco River may infiltrate into the ground and impair the quality of shallow ground water[,] because groundwater moves slowly, such degradation could remain undetected until a private well is affected.”[28] Second, “[l]ivestock could ingest contaminated sediments by drinking water from the Puerco River,” resulting in long-term exposure, which then could be consumed by people.[29] Third, “[c]ontaminated sediments [ . . . ] may be suspended as dust and inhaled by local residents or deposited on vegetation and consumed by livestock.”[30]

In 2000, the Navajo Nation requested that the United States Environmental Protection Agency take the lead on the Northeast Church Rock mine cleanup, as it is identified today.[31] USEPA and United Nuclear Corporation (acquired by General Electric) continue to work together to complete federal administrative processes and enforcement protocols.[32] According to USEPA, as of January 2020,

200,000 tons of contaminated soil has been removed from the residential area and brought back to the mine waste pile. The mine waste pile has been temporarily covered and stabilized until it can be removed. [ . . . ] In September 2018, UNC/GE (General Electric) submitted a request for a license amendment (which includes the completed design) to the Nuclear Regulatory Commission (NRC) to build a repository for the NECR mine waste at the UNC Mill Site. NRC is currently reviewing the request.[33]

The USEPA has identified a boundary for the Northeast Church Rock mine that does not include the Puerco River, despite the dewatering practices that were exercised during the mine’s operation from 1967-1982.[34] Common arguments against a cleanup of Puerco River include: naturally occurring uranium as the source of environmental contamination, high cleanup costs, and low population in the affected areas. However, the Comprehensive Environmental Response, Compensation, and Liability Act defines facility as “any site or area where a hazardous substance has been deposited, stored, disposed of or placed, or otherwise come to be located . . . .”[35] According to the federal statute, the Rio Puerco is part of the Northeast Church Rock mine facility.

As New Mexico Senator Tom Udall stated in his opening remarks as Chair of the Senate Subcommittee on Children’s Health and Environmental Responsibility, “regardless of our personal beliefs about nuclear weapons, nuclear power or future uranium mining, everyone should agree the Nation and the companies that profited from uranium development owe a debt to communities with legacy contamination and that can only be paid in full with a complete cleanup.”[36]

If you are interested in learning more about the progress of the Northeast Church Rock mine cleanup, the US EPA has a comprehensive website where it continues to report on the progress of cleanup at this and the hundreds of other abandoned uranium mine sites and features left on the Navajo Nation today. You may also contact Ms. Priscilla Tom, the community coordinator for Northeast Church Rock mine, with any questions pertaining to the site cleanup. There are non-government organizations that are also doing important work to develop a strong case, such as: the Navajo Birth Cohort Study, conducted by Dr. Johnny Lewis; the Red Water Pond Road Community Association; Former Navajo Nation Council Delegate Jonathan Perry with Eastern Navajo Diné Against Uranium Mining, in partnership with the New Mexico Environmental Law Center; Dr. Tommy Rock (Diné); Ms. Leona Morgan; and many others.

Lastly, and most importantly, let us acknowledge the countless beings, human and otherwise, who have been affected by uranium mining and exposure to hazardous materials. The injustice at the hands of unscrupulous businesspeople and the United States federal government; perpetuated by the former, is not right. Even though the work is emotionally laborious and change is slow, we will keep striving to move forward.

Ahéhee’.


[1] “Mine tailings dam. An industrial waste dam in which the waste materials come from mining operations or mineral processing. It is usually built in stages over the life of the mine. The waste products are often conveyed as fine material suspended in water to the reservoir impounded by the embankment.” U.S Department of Labor Mine Safety and Health Administration, MSHA Handbook Series Handbook Number PH21-V-6, A9-6 (January 2021).

[2] Jere Millard, Bruce Gallaher, Davis Baggett & Steven Cary, New Mexico Environmental Improvement Division Health and Environment Department, Summary Report of the Church Rock Uranium Mill Tailings Spill: A Health and Environmental Assessment 1 (1983).

[3] Id.

[4] Id.

[5] Id.

[6] Id.

[7] Id.

[8] Mill Tailings Dam Break at Church Rock, New Mexico: Oversight Hearing Before the Subcomm. on Energy and the Env’t of the Comm. on Interior and Insular Affairs,96th Cong. 1 (1979).

[9] Id. at 1.

[10] Id.

[11] Id. at 2-3.

[12] Id. at 3.

[13] Id.

[14] Id.

[15] Id.

[16] Id.

[17] Id. at 2.

[18] Id. at 47.

[19] Id. at 49.

[20] Id. at 6.

[21] Id. at 21.

[22] Millard et al., supra note 2, at 8.

[23] UNC Res., Inc. v. Benally, 514 F. Supp. 358, 362 (D.N.M. 1981).

[24] Id. at 360.

[25] Id. at 362.

[26] Id. at 363.

[27] Id. at 364.

[28] Millard et al., supra note 2, at 1.

[29] Id.

[30] Id.

[31] U.S. EPA, Northeast Church Rock Mine Site Update (2020), https://www.epa.gov/sites/default/files/2020-01/documents/northeast_church_rock_mine_fact_sheet-2020-01-13.pdf.

[32] Id.

[33] Id.

[34] Id.

[35] Comprehensive Environmental Response, Compensation, and Liability Act, 42 U.S.C. § 9601 (2018).

[36] Oversight Hearing on Federal Actions to Clean Up Contamination From Legacy Uranium Mining And Milling Operations Before the Subcomm. on Child. Health and the Env’t Responsibility of the Comm. on Env’t and Pub. Works, 112th Cong. (2011).

Categories
Commentary

Reproductive Justice in Indian Country

By: Barbara Ryan

Reproductive justice is on the minds of women from coast to coast, but likely not more than for Native American women living in Texas.  Native women face two harsh realities that will have a disproportionate impact on them, their families, and their communities. Native women experience higher rates of sexual violence than any other group[1]and Native populations experience higher rates of economic hardships.[2] These two realities will leave Native women residing in Texas that experience unwanted or unplanned pregnancies with serious, even deadly, outcomes as a result.

The restrictive new law in Texas, S.B. 8 (otherwise known as the Texas Heartbeat Act), bans abortions after six weeks when a ‘fetal heartbeat’ can be detected.[3]The law applies to all women without exceptions for rape or incest.[4] Further, private citizens are incentivized to sue any person or organization that “knowingly engages in conduct that aids or abets the performance or inducement of an abortion.”[5]The statutory damages awarded for each incident of abortion include a minimum of $10,000, plus associated costs and attorney’s fees.[6]

The Texas Heartbeat Act is an affront to fifty years of precedent establishing the unconstitutionality of banning abortions before viability. In 1973, Roe v. Wade established protection of the “right to privacy” and a person’s right to choose whether or not to have an abortion before viability under the Due Process Clause of the Fourteenth Amendment.[7]In 1992, in Planned Parenthood of Se. Pa. v. Casey, the Supreme Court reinforced the holding in Roe v. Wade and held that while State interests were important, “[b]efore viability, the State’s interests are not strong enough to support a prohibition of abortion.”[8]The Court also prohibited the imposition of an undue burden placed on women exercising their constitutional right to determine whether they will terminate a pre-viability pregnancy.[9]The Supreme Court has found this constitutional right, affirmed it and reaffirmed it various times in the last five decades.[10] The Texas law circumvents precedent in two ways.  First, the threat of lawsuits against anyone whose conduct abets in the performance of abortion creates an undue burden.[11]Second, the State is avoiding responsibility as a state actor, which is prohibited by 14th Amendment protections, by deputizing private citizens to enforce S.B. 8.[12]

The Texas Heartbeat Act does not make exceptions in cases of rape or incest. A key aspect in whether a pregnancy is an unplanned or unwanted pregnancy is due to the manner that led to conception. Native women experience violence at higher rates than any other group in the United States. “American Indians” are 2.5 times more likely to experience sexual assault crimes compared to all other races.[13]In effect, 34 percent of Native women are raped in their lifetimes.[14] Violence, including sexual violence, against Native women, occurs across a continuum of their lives.[15] Most Native women do not report such crimes because of the belief that nothing will be done.[16] This suggests that actual rates are much higher.

The Texas Heartbeat Act will disproportionately impact minority populations, especially those with scarce resources. While people with resources can travel to other states for abortion services, those without resources do not typically have that option.  Unfortunately, Native Americans rank high in all meaningful categories related to lack of resources. The national poverty rate which included all races in 2016 was 14 percent.[17] The percentage of single-race American Indian and Alaska Natives who live in poverty was higher than any race group during the same time at 26.2%.[18] The median household income in 2016 for the nation was $57,617.[19] The median household income of single-race American Indian and Alaska Natives during the same time was $39,719.[20] Another critical category includes health insurance. The national average for people lacking health insurance in 2016 was 8.6 percent of the population.[21] The percentage of single-race American Indian and Alaska Native people who lacked health insurance coverage during the same time was 19.2 percent.[22] In Texas, single-race American Indians/Alaska Natives make up 0.5 percent or 141,425 of the nearly 30 million residents, and approximately half are women.[23] 

The combination of draconian abortion laws, high rates of sexual violence, and the economic realities of native women in Texas will be devastating for them and their families. With the threat of lawsuits, the state has effectively amputated non-profit healthcare and advocacy organizations from guiding and supporting the community at the exact time girls and women need it the most. The most obvious option is to travel to neighboring states to seek care, however, that option is only available to women with support, resources, and time.  Unwanted or unplanned pregnancies, especially those resulting from sexual violence, may lead to tragedy. Lack of resources and healthcare options may drive many women to attempt to perform their own abortions, resulting in severe injury and even death.

On December 1, 2021, the United States Supreme Court will hear Dobbs v. Jackson Women’s Health Organization.[24] This high-profile case is asking the Supreme Court to essentially overturn both Roe v. Wade and Planned Parenthood of Se. Pa. v. Casey, by allowing the State’s interest to trump women’s constitutional rights.[25] The petitioners want the Court to abandon the undue burden test and viability requirement, and allow the State to implement a rule prohibiting abortions after 15 weeks.[26] This high-profile case may also impact the ultimate fate of S.B. 8 in Texas. S.B. 8 is currently entangled in various court battles, but meanwhile, women in Texas are caught in the middle without the benefit of resources or time. 

S.B. 8 has not incapacitated all organizations from providing support and resources to women in need of abortions in Texas.  There are several organizations that continue to fight and provide resources in Texas.[27] ACLU of Texas is dedicated to fighting back against laws that threaten the reproductive rights of women in Texas.[28]  Equal Access Fund provides emotional and financial support for lower-income women residing in Texas.[29] Fund Texas Choice continues to provide support for out-of-state travel to women seeking abortion services.[30]The Lilith Fund provides funds for women who need abortions and cannot afford to pay for them.[31]The public can contribute by contacting or donating directly to these and other organizations.  


[1] Maze of Injustice, The Failure to Protect Indigenous Women from Sexual Violence in the USA, 2, https://www.amnestyusa.org/pdfs/mazeofinjustice.pdf (last visited October 9, 2021).

[2] United States Census Bureau, https://www.census.gov/newsroom/facts-for-features/2017/aian-month.html (last visited October 9, 2021).

[3] S.B. 8, 87th Leg., 1st Spec. Sess. (Tex. 2021).

[4] Id.

[5] Id.

[6] Id.

[7] Roe v. Wade, 410 U.S. 173 (1973).

[8] Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 846 (1992) (emphasis added).

[9] Roe v. Wade, 410 U.S. 173 (1973).

[10] See, e.g., Whole Woman’s Health v. Hellerstedt, 579 U. S. 136 S. Ct. 2292 (2016), (State cannot place restrictions on delivery of abortion service that create an undue burden); McCormack v. Herzog, 788 F.3d 1017, 1029 (9th Cir. 2015) (striking down a ban on pre-viability abortions at 20 weeks with exceptions); MKB Mgmt. Corp. v. Stenehjem, 795 F.3d 768, 773 (8th Cir. 2015) (striking down a ban on pre-viability abortions at 6 weeks with exceptions), cert. denied, 136 S. Ct. 981 (2016); Carhart v. Stenberg, 192 F.3d 1142, 1151 (8th Cir. 1999) (striking down a ban on “the most common procedure” used to perform abortions after 13 weeks), aff ’d, 530 U.S. 914, 922 (2000); Women’s Med. Prof ’l Corp. v. Voinovich, 130 F.3d 187, 201 (6th Cir. 1997) (same), cert. denied, 523 U.S. 1036 (1998).

[11] Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 846 (1992).

[12] S.B. 8, 87th Leg., 1st Spec. Sess. (Tex. 2021).

[13] Maze of Injustice, The Failure to Protect Indigenous Women from Sexual Violence in the USA, 2, https://www.amnestyusa.org/pdfs/mazeofinjustice.pdf (last visited October 9, 2021).

[14] Id.

[15] Id.

[16] Id.

[17] United States Census Bureau, https://www.census.gov/newsroom/facts-for-features/2017/aian-month.html (last visited October 9, 2021).

[18] Id.

[19] Id.

[20] Id.

[21] Id.

[22] Id.

[23] World Population Review, https://worldpopulationreview.com/states/texas-population (last visited October 20, 2021).

[24] Dobbs v. Jackson Women’s Health Organization, https://www.scotusblog.com/case-files/cases/dobbs-v-jackson-womens-health-organization/ (last visited October 14, 2021).

[25] Id.

[26] Id.

[27] Fast Company, How to Help Abortion Rights Activists in Texas: 8 Things You Can Do Right Now, Sept. 2, 2021, https://www.fastcompany.com/90672132/how-to-help-abortion-rights-activists-in-texas-8-things-you-can-do-right-now (last visited Oct. 21, 2021).

[28] ACLU of Texas, https://www.aclutx.org/en/issues/reproductive-freedom (last visited Oct. 21, 2021).

[29] Texas Equal Access Fund, https://teafund.org/ (last visited Oct. 21, 2021).

[30] Fund Texas Choice, https://fundtexaschoice.org/ (last visited Oct. 21, 2021).

[31] Lilith Fund, https://www.lilithfund.org/ (last visited Oct. 21, 2021).

Categories
Commentary

They Became Terrorists Overnight: The Chilean Government’s Use of Anti-Terrorism Laws Against Mapuche Activists

By: Val Day-Sánchez

“There are no guarantees of due process in these trials manipulated by the state…We are persecuted by state police, and the state appoints both the prosecutors and the public defence lawyers, who operate within a system and comply with a political model that favours vested economic interests in this country.”[1] 

The Mapuche Nation is the largest Indigenous community in the Americas, residing in Argentina and Chile.[2] Unfortunately, even with its high population there is not strength in numbers.[3] The Chilean and Argentine governments view the Mapuche as invaders.[4] Historically, however, the wars inflicted on the Mapuche was that of colonialism. The narrative created by the Chilean government has been the inverse.[5]

The Mapuche people, a primarily agricultural society, were forced onto reservations in 1866.[6] The Chileans revoked the Quillin Treaty, which had declared the Mapuche autonomous from the country.[7] This revocation of sovereignty enabled the Chilean government to take the Mapuche’s ancestral land and, using their discretion, the government would provide the Mapuche with land use but not ownership.[8]  Land removal continued into the 1920’s and 1930s.[9] 

In the early 1970s, the Chilean government passed the “Indigenous Law” which recognized the Mapuche as a distinct culture.[10] This law also enabled the restoration of Mapuche ancestral lands.[11] All of this “progress” was overturned by the infamous dictator, General Augusto Pinochet. The Chilean government was then legally allowed to take land from the Mapuche and exploit it for monetary gain.[12] The taking of land to develop forestry plantations began in 1973 and was heavily encouraged by way of subsidies until 2013, under Decree Law 701.[13] This resulted in 11 million hectares being taken from the Mapuche.[14]

Pinochet called for the “division of the reserves and liquidation of Indian communities,” and thus the Anti-Terrorism Law or Law 18.314 was adopted. [15] The combination of taking land from the Mapuche Nation and exploiting it has led to protests from the Mapuche, who the government then combats with the Anti-Terrorism law.[16] This has been going on for decades. Imprisoned Mapuche led hunger strikes challenging the harsh prison sentences, police brutality, entire generations lost to incarceration and being viewed as inhuman— has caught the attention of the United Nations. Mapuche children have applied for asylum, believing they will die at the hands of law enforcement. When your country deems you a terrorist and refuses to recognize you, one is pressed to know where someone can feel safe.[17]

The oppression of the Mapuche Tribal members is further reflected in the suppression of their language, the devastation of their land, and in their absence from the Chilean Constitution.[18]  The Chilean State has labeled Mapuche Activists as terrorists while they see themselves as political prisoners.[19] Due to its cruelty towards Tribal members and their children, both the United Nations and UNICEF have told the Chilean government to halt the use of the Anti-Terrorism law.[20]

The law, which was developed during a dictator’s regime, includes secret investigations, anonymous witnesses, indefinite pretrial detention, harsher penalties and stark sentences.[21] It also creates a lack of trust in the justice system, as such practices are directly averse to principles like innocent until proven guilty. Both the police and prosecutors are looked at as untrustworthy and even criminal by their handling of cases involving Mapuche activists.[22]

“There has been no recognition of our people’s political, social and legal structures; our traditional authorities have not been respected, and our territorial rights have not been recognized.”[23]

The brutality of the Anti-Terrorism law challenges due process as Mapuche people charged under this law often remain in custody for up to two years while their case is investigated.[24] The prosecution is allowed to withhold evidence from the accused for up to six months and to add to the injustice, the defendant can be convicted solely on the testimony of a secret witness.[25]

“Despite the controversy embedded in this framework, there is an ongoing national debate unfolding today over whether this already-violent undemocratic process is ‘tough enough’ to fight Mapuche so-called “terrorism.” [26]

General Augusto Pinochet once stated “[t]here are no Mapuches left, because we are all Chilean.”[27] This sentiment has been challenged in recent years as Chile shifted from a Catholic state to a nonreligious government. Its lack of laws protecting other marginalized communities has sparked protests, which perhaps means there is hope for inclusion of Indigenous protections.[28] In 2021 Chile will be re-writing its constitution.[29] This will be the first time since Pinochet was in office.[30] Elisa Loncon, the first Mapuche woman selected by delegates to help draft the new Constitution, will be part of this effort.[31] One can hope this will lead to the Mapuche being recognized as a distinct culture within the Constitution and then receiving the benefits of that recognition.


[1] UNPO: Mapuche: Introduce new Legal System, https://www.unpo.org/content/view/10708/127/ (last visited Sep 13, 2021).

[2] Mapuche, Minority Rights Group (2015), https://minorityrights.org/minorities/mapuche-2/ (last visited Sep 13, 2021).

[3] Id.

[4] Id.

[5] Id.

[6] Mapuche | History, Culture, & Facts, Encyclopedia Britannica, https://www.britannica.com/topic/Mapuche (last visited Oct 18, 2021).

[7] The Quillin Treaty was between Spain and the Mapuche Nation. Zia Akhtar, Mapuche Land Claims: Environmental Protest, Legal Discrimination and Customary Rights, 20 Int J Minor Group Rights 551–576 (2013).

[8] Id.

[9] Minority Rights Group (2015), supra note 2.

[10] Patricia Rodriguez & David Carruthers, Testing Democracy’s Promise: Indigenous Mobilization and the Chilean State, Revista Europea de Estudios Latinoamericanos y del Caribe / European Review of Latin American and Caribbean Studies 3–21 (2008).

[11] Id.

[12] Mapuche Lavkenche Women’s Resistance to the Chilean Forestry Model | WRM in English, https://wrm.org.uy/articles-from-the-wrm-bulletin/section1/mapuche-lavkenche-womens-resistance-to-the-chilean-forestry-model/ (last visited Sep 27, 2021) [hereinafter Mapuche Women’s Resistance].

[13] Id.

[14] Id.

[15] Chile is still using Pinochet’s Anti-Terrorist Law against the Mapuche | Intercontinental Cry, https://intercontinentalcry.org/chiles-still-using-pinochets-anti-terrorist-law-mapuche/ (last visited Oct 18, 2021).

[16] Ever since the Chilean government split the ancestral lands between two families, who developed forestry plantations, the government has worked in a noxious relationship with these companies. It is this relationship which enables the logging company to enter Mapuche ancestral lands. The logging company strategically decimated the forest to plant invasive species like pine and eucalyptus trees, these trees being a lucrative export. This history of colonization and the formation of government subsidized plantations came to a head in 1997. Three truckloads of wood from the forestry company were burned while on the occupied land, and the intensification of the reclamation of the occupied lands led to the increase of police presence and the enforcement of the Anti-Terrorism Laws.Mapuche Women’s Resistance,supra note 12.

[17] Id.

[18] Chile is the only Latin American country that does not recognize Indigenous people in its constitution. Chile – IWGIA – International Work Group for Indigenous Affairs, https://www.iwgia.org/en/chile.html (last visited Sep 27, 2021).

[19] UNPO, supra note 1.

[20] OHCHR | UN experts urge Chile not to use anti-terrorism law against Mapuche indigenous peoples, , https://www.ohchr.org/en/NewsEvents/Pages/DisplayNews.aspx?NewsID=22209&LangID=E (last visited Oct 18, 2021).

[21] Undue Process: Terrorism Trials, Military Courts and the Mapuche in Southern Chile, (2004), https://www.hrw.org/report/2004/10/27/undue-process/terrorism-trials-military-courts-and-mapuche-southern-chile (last visited Oct 18, 2021).

[22] Intercontinental Cry, supra note 15.

[23] Id.

[24] Id.

[25] Id.

[26] Id.

[27] IWGIA, supra note 18.

[28] Mapuche woman to lead body drafting Chile’s new constitution, https://www.aljazeera.com/news/2021/7/4/indigenous-mapuche-woman-to-lead-body-drafting-chile-new-constitution (last visited Oct 2, 2021).

[29] Id.

[30] Id.

[31] Id.

Categories
Commentary Student Reflections

Reflection: The 2020 Election Once Again Illuminated the Power of Native American Voters, But There’s Still Work to be Done

By: Taylor Bingham

If you were like me this election cycle, your eyes were glued to social media. The 2020 election season seemed never-ending, and it was as if each day brought with it a new constitutional crisis. However, one aspect of this election cycle that brought with it hope for the future of our communities was the extensive efforts being taken on the ground to increase the turnout of Native American voters and expand representation at all levels of government.

This effort resulted in a new President and Vice President, the retention of a Democratic majority in the House of Representatives, and, upon the conclusion of the Georgia runoff election, a 50-50 split in the Senate. It may also lead to the first Native American Cabinet Secretary, with Representative Deb Haaland nominated to serve as Secretary of the Interior. Finally, a record six Native Americans were elected to serve in Congress, and the rise of local Native American candidates who brought crucial issues to the forefront illustrates the potential for the future.

As the nation reflects on the numerous ways in which this election was historic, it is imperative we recognize the importance of Native American voters and Native American candidates. However, we must also acknowledge that in order to bring about fundamental change in our country, progress remains to be made in ensuring that voter disenfranchisement, particularly of Native American communities, is eradicated. As we await the Supreme Court’s decision in Brnovich v. Democratic National Committee, No. 19-1257 (U.S. Apr. 27, 2020), a case in which voting access is being challenged, it is clear that there is still work to be done.

Native American Voters and the 2020 Election

Though Native American voters represent a smaller portion of the United States population, “they are often concentrated in communities that make them a political force.”[1] Native American voters have often been the decisive difference in elections in Alaska, the Dakotas, and the Southwest, and 2020 was no different.[2] The results of this election have been widely attributed to the impact of Native American voters in key states. In Arizona, maps of tribal lands in the state overlap almost exactly with those showing counties that voted for President Biden. As a result, this election was only the second time in 70 years that Arizona has elected a Democratic presidential candidate.[3] Despite the disparate impact of the COVID-19 pandemic on Native American communities and the refusal on the part of the State of Arizona to modify ballot receipt dates, Apache County “saw 116% voter turnout compared to the 2016 election.”[4] In Wisconsin, Native American voters in areas like Menominee County helped create a slim majority for Biden.[5] The Lumbee tribe, who have been pursuing federal recognition for decades and were promised such recognition after a rally held by former President Trump, are being credited with his win in North Carolina, as well as the success of Republican Senator Thom Tillis there.[6]

In South Dakota and Montana, though each state’s electoral votes ultimately went to Trump, counties that overlapped with tribal nations largely showed higher proportions of Democratic voters. Though this did not change the outcome of the Presidential race in those states, the impact on down-ballot races has been demonstrated in the past. The narrow success in 2018 of Montana Senator Jon Tester, a Democrat and staunch advocate for Native American issues, is one  example.[7]

With the increase in partisanship stalling legislation and deepening political divides, elections “are increasingly decided by razor-thin margins” while “Native people are almost always overlooked or forgotten.”[8] However, Jordan James Harvill (Cherokee), who worked with Navajo Nation as chief of staff for VoteAmerica, described this election as one that illuminated for the rest of the country just how important Native American voters are, stating “[w]hen we’re looking on to the next several years, we’re going to see that Native American voters become one of the defining members of the electorate.”[9] It would be a mistake to overgeneralize the Native American electorate as one that votes identically and supports only certain issues. However, it is important to note that issues like tribal sovereignty, energy, climate, water, education, and child welfare have been key to motivating Native American voters to take part in elections.[10] These issues have also demonstrated the ability of legislators to work in a bipartisan manner to advance legislation and promote tribal sovereignty.[11] By presenting comprehensive policies to voters in regard to these issues, the success of candidates in close races will be tied to the power of Native American voters, and the nation as a whole will stand to benefit from the progressive policies that many Native American voters support.

The Success (and Future) of Native American Political Candidates

According to data from the 2010 US Census, if Native American representation in Congress was in proportion to the United States population, there would be two Native American Senators and eight House Representatives.[12] Due to increases in population over the last ten years, it is likely that this number is now higher. In 2020, Representative Deb Haaland (Laguna and Jemez Pueblo) and Representative Sharice Davids (Ho-Chunk) were both reelected, continuing their historic legacies as the first Native American women elected to Congress.[13] They were joined by Yvette Herrell (Cherokee), a Republican from New Mexico and Kaiali’i Kahele, a Democrat and only the second Native Hawaiian ever elected to Congress.[14] Representatives Tom Cole (Chickasaw) and Markwayne Mullin (Cherokee) were also reelected.[15] Though this year did not see Congress painting an accurate portrait of the demographic makeup of the United States, the six Native American candidates elected once again make this House one that is making history.

Though the increase in elected representation is crucial, it is also important to note the increase in Native American candidates overall, and the excitement their candidacy garnered among their constituents. Mark Charles (Navajo), a speaker, activist, and author who was raised in Gallup, NM, was on the ballot in Colorado as a candidate for President.[16] Paulette Jordan (Coeur d’Alene), a Democrat state legislator from Idaho, ran for Senate in a race that was closely followed.[17] There were a total of thirteen Native American candidates for the House of Representatives. One candidate, Lynnette Grey Bull (Northern Arapaho and Hunkpapa Lakota), a Democrat from Wyoming, made history as she is believed to be the first Native American to run for federal office from the state.[18] Her challenge to Republican Representative Liz Cheney was marked by debates in which treaty rights and the impact of COVID-19 were discussed, a rare occurrence in Wyoming’s political discourse.[19]

It remains to be seen how this increase in candidacy played out collectively in state and other down-ballot races, but the successful campaign of Christine Haswood (Diné) of Kansas is one example of the ways in which young Native American politicians have increased representation throughout the country.[20]

Voter Disenfranchisement and Brnovich v. Democratic National Committee

The 2020 election has not demonstrated anything new. The impact of Native American voters on key races and in pushing legislative policy is clear to those who pay attention. However, others’ newfound awareness of the importance of Native American voters and their impact during the 2020 election contrasts with the consistent attacks by various governmental entities on the ability of Native Americans to exercise their right to vote. 

In 2020, the Native American Rights Fund (NARF) issued an extensive report entitled Obstacles at Every Turn: Barriers to Political Participation Faced by Native American Voters. This report used historical data and data compiled from a series of field hearings conducted across seven states to identify the various barriers to voting access faced by Native American voters.[21] In all, the report describes eleven factors that discourage political participation, ten barriers to voting registration, nine barriers to casting a ballot, and four barriers to having ballots fairly and accurately counted.[22] Each of these factors was then compounded by the failure of many jurisdictions to implement required language assistance provisions mandated by the Voting Rights Act (VRA).[23] As the authors of the report state, it may be that the potential of Native American voters to decide competitive elections has “made them the target of voter suppression tactics in communities that are not used to Native Americans flexing their political power.”[24]

One such example of voter suppression is Brnovich v. Democratic National Committee, a pending Supreme Court Case that is set for oral argument in March 2021. This case presents two questions: 1) Whether Arizona’s out-of-precinct policy violates Section 2 of the VRA, and 2) whether Arizona’s ballot-collection law, passed in 2016, violates Section 2 of the VRA or the Fifteenth Amendment.[25]

In Arizona, each county determines whether they will use a vote center system or a precinct based system for voters who cast their ballots in person.[26] Arizona’s out-of-precinct policy states that voters must vote at their assigned polling place within their precinct, but may cast provisional ballots if they arrive at a polling place where their name is not listed on the precinct register.[27] If that voter is later found to not live at an address within the precinct in which they voted, the provisional ballot is discarded entirely.[28] The second law being challenged is H.B. 2023, which was passed in 2016 and made it a crime to collect or deliver another person’s ballot unless that person was an election official, mail carrier, family or household member, or a caregiver.[29] The Democratic National Committee (DNC) challenged these laws, in part stating that they violate Section 2 of the VRA “by adversely and disparately impacting the electoral opportunities of Hispanic, African American and Native American Arizonans.”[30]

The National Congress of American Indians (NCAI) prepared an amicus brief in     support of the respondents in which they used the voting report to demonstrate the ways in which these two Arizona laws disenfranchise Native American voters in the state. The NCAI brief points to factors such as geographic isolation, lack of residential mail delivery, and lack of reliable roads and broadband access that prevent voters from accessing polling places in precinct or from handling their own ballots.[31] It also described the historical impacts of voter disenfranchisement on Native American communities, and provided numerous examples of ways in which systemic racism has played a significant role in the creation of new voting laws, even since the passage of the VRA.[32] These factors have only been compounded by the COVID-19 pandemic, which has further limited voting access.

It remains to be seen whether the Court will uphold the previous courts reversal that struck down these two Arizona provisions. Regardless of what the Court decides, as voters and advocates, it is crucial that we hold legislators accountable and demand that they address voting barriers such as those described in the NARF report. As community members, volunteering to support voter outreach or donating to voter outreach organizations like Four Directions, the Native American Rights Fund, and the National Congress of American Indians can also be beneficial. However, if the Court chooses to change course and allow the state of Arizona (and others like it) to circumvent voter protections, we can expect to see a continued push by grassroots vote organizers to push forward for the benefit of Native American communities.


[1] Dr. James Thomas Tucker, Jacqueline De León, & Dr. Daniel McCool, Obstacles at Every Turn: Barriers to Political Participation Faced by Native American Voters 1, Native American Rights Fund (2020), https://vote.narf.org/wp-content/uploads/2020/06/obstacles_at_every_turn.

[2] Id.

[3] Anna V. Smith, How Indigenous Voters Swung the 2020 Election, High Country News (Nov. 6, 2020), https://www.hcn.org/articles/indigenous-affairs-how-indigenous-voters-swung-the-2020-election.

[4] Id.

[5] Id.

[6] Julian Brave NoiseCat, In Trump v. Biden, Native American Voters Played a Crucial Role. It’s Time to Recognize That, NBC News Think (Nov. 27, 2020, 2:32 AM), https://www.nbcnews.com/think/opinion/trump-v-biden-native-american-voters-played-crucial-role-it-ncna1249005.

[7] See Smith, supra note 3; National Congress of American Indians, Fast Facts, Every Native Vote Counts (2020), http://www.nativevote.org/wp-content/uploads/2020/05/2020-Native-Vote-Infographic.pdf.

[8] NoiseCat, supra note 6.

[9] Smith, supra note 3.

[10] National Congress of American Indians, supra note 7.

[11] Interview by Savannah Maher with Aliyah Chavez, Reporter/Producer, Indian Country Today (Nov. 4, 2020), https://www.wyomingpublicmedia.org/post/win-or-lose-indigenous-congressional-candidates-made-history-2020#stream/0.

[12] National Congress of American Indians, supra note 7.

[13] Dalton Walker, US House Candidates Make History, Indian Country Today (Nov. 4, 2020), https://indiancountrytoday.com/news/us-house-candidates-make-history-nrjfe9eNSk6dY6UQLZgD-g.

[14] Id.

[15] Id.

[16] Id.; Dalton Walker, Is Mark Charles on the Ballot?, Indian Country Today (Aug. 21, 2020), https://indiancountrytoday.com/news/is-mark-charles-on-the-ballot-nPPL9aro7UKG86zI-kMAuA.

[17] Walker, supra note 13.

[18] Maher, supra note 11.

[19] Id.

[20] Maher, supra note 11.

[21] Tucker et al., supra note 1, at 4.

[22] Id. at 2.

[23] See id. The details of this extensive report are beyond the scope of this reflection piece but are considered by the author to be required further reading for advocates.

[24] Id. at 1.

[25] Petition for Writ of Certiorari at -, Brnovich v. Democratic National Committee, No. 19-1257 (U.S. Apr. 27, 2020).

[26] Brnovich v. Democratic National Committee, Oyez, https://www.oyez.org/cases/2020/19-1257 (last visited Jan 24, 2021).

[27]  Petition for Writ of Certiorari, supra note 25, at 6.

[28] Id.

[29] Id. at 7.

[30] Id. at 5.

[31] See Brief of National Congress of American Indians Amicus Curiae in Support of Respondents at 14-26, Brnovich v. Democratic National Committee, No. 19-1257 (U.S. Jan. 20, 2021).

[32] Id. at 26-34.

Categories
Commentary

Do Warring Tribes Go Against The Purposes of IGRA?

Author: Rob Waldroup

I. Introduction

The creation of Indian casinos and the processes under which they are established has created a paradox: many tribes attempt to enter into the multi-billion dollar business venture of Indian gaming, only to be blocked through legal and administrative challenges made by other tribes fearing competition. The purpose behind allowing the creation of Indian casinos in the United States is first and foremost to “provide a statutory basis for the operation of gaming by Indian tribes as a means of promoting tribal economic development, self-sufficiency, and strong tribal governments.”[1] Allowing inter-tribal conflicts to interfere with that purpose undermines tribal sovereignty for every tribe.

A look into a current situation (the case of the Catawba Nation attempting to enter the business of Indian gaming through petitioning the Department of the Interior (DOI) to take land into trust for gaming purposes) will show how these inter-tribal conflicts begin and the toll they take on less-prosperous tribes. The process of taking land into trust for gaming purposes is arduous enough, and it is made nearly impossible when other tribes add a legal challenge against affirmative decisions for the tribe who is petitioning.

Indian gaming is not a new concept. Some pre-contact dice games have been played since time-immemorial.[2] The Indian Gaming Regulatory Act, the Federal legislation that acknowledges the ability of Federally-Recognized Indian Tribes to conduct various types of gaming on Federal Indian Trust Land, is the modern application of an ancient tradition among Native American Tribes. In October of 1988, the Indian Gaming Regulatory Act (IGRA) was enacted by Congress.[3] The purpose of IGRA is to regulate the conduct of gaming on “Indian Lands,” as it is defined in the Act.[4] IGRA also establishes the National Indian Gaming Commission (NIGC) and the regulatory structure behind Indian Gaming in the United States. [5] The NIGC may oversee the regulation of Indian Gaming and review pending applications from federally recognized tribes that want to conduct Class III (casino-style gaming) on lands held in trust by the Department of the Interior (DOI).[6]

Among the many provisions of IGRA, there exists a prohibition on certain gaming occurring on lands acquired after the passage of IGRA.[7] This prohibition does not apply to lands acquired after 1988 if said lands are taken into trust by the Secretary of the Department of the Interior as part of “the restoration of lands for an Indian Tribe restored to federal recognition.”[8] Gaming may occur on newly acquired lands if certain criteria for the exception are met.[9]The “Restored Lands” Exception is a perfect example of just how arduous the process is for a tribe who would like to build a casino gaming enterprise. With the added costs and pressures caused from litigating challenges made by other tribes, it discourages tribes who could otherwise meet the exceptions of § 2719 to pursue Indian gaming.

Discussing the regulatory framework of the Restored Lands exception and how that framework is applied through the lens of the Catawba Indian Nation trust acquisition for gaming purposes will elucidate the major obstacles for tribes who are trying to fulfill the purposes of IGRA by going through the processes. Many tribes who attempt the processes of taking fee-land into trust for gaming purposes are met with extreme opposition, many times stemming from legal challenges made by other tribes. These inter-tribal conflicts go against the purposes of IGRA all in the name of financial gain.

II. Mapping The Regulatory Framework of The Restored Lands Exception

Understanding the Restored Lands exception is vital to grasping the difficulty that the regulatory framework entails for the majority of tribes who attempt to take land into trust for gaming purposes.[10] After gaining that understanding, it will show how debilitating additional challenges, especially those made by other tribes who already have the financial backing of gaming revenue, truly are for the tribe who is petitioning to enter the business.

The Restored Lands exception of IGRA is rooted in the Code of Federal Regulations, Chapter 25, Sections 292.7-12. These regulations set out the criteria that must be met in order for a tribe to petition for fee-land to be taken into trust for gaming under this exception. Section 292.7 details the general process through which a tribe must establish that they meet the requirements for their proposed acquisition to be taken into trust under the Restored Lands exception. The tribe must have been federally recognized, proven by the criteria in 292.8. The tribe must have at some time later lost its government to government relationship via one of the methods of 292.9. The tribe must have regained its government to government relationship by the means specified in 292.10. The acquired lands must meet the criteria in 292.11. There are also some key definitions that must be understood in order to get the full picture of the criteria which is discussed within the regulatory framework.

Only Indian Tribes are included under the umbrella of IGRA, and thus the only groups eligible to qualify for the Restored Lands exception. As defined in IGRA, the term “Indian Tribe” is defined as any tribe, band, nation, or other organized group or community of Indians.[11] Those Indian Tribes must also be recognized as eligible by the Secretary of the Department of the Interior for the special programs and services provided by the United States to Indians because of their status as Indians.[12] The tribe must also be recognized as having the powers of self-government.[13]

Indian gaming may only be conducted on Indian Lands, as they are defined under IGRA. “Indian Lands” is defined in IGRA as all lands within the limits of any Indian reservation.[14] It also includes those lands whose title is either held in trust by the United States for the benefit of any Indian tribe or individual or those subject to restriction against alienation and over which an Indian tribe exercises governmental power.[15]

The petitioning tribe looking to have a parcel taken into trust through the Restored Lands exception must have been “Federally Recognized” at some point in their history. “Federally Recognized” is defined specifically as it contributes to the process of being granted the Restored Lands exception.[16] For a tribe to have been federally recognized, for the purposes of meeting the Restored Lands exception, the tribe must have: i) entered into treaty negotiations with the United States at one time;[17] ii) been determined by the DOI to be able to organize under the Indian Reorganization Act or Oklahoma Indian Welfare Act;[18] iii) had Congress enact legislation specific to, or at least including, the tribe indicating that a government-government relationship existed;[19] iv) had the United States acquire land into trust for the tribe’s benefit in the past;[20] v) provide some other evidence that shows that a government-government relationship exists between the tribe and the United States federal government.[21]

Next, A tribe must also show that it lost its government-government relationship. To prove this, a tribe must provide proof of legislative termination,[22] or termination demonstrated by historical documents which show that the Executive Branch no longer recognizes a government-government relationship with the tribe or its members.[23]

Finally, The tribe must then be restored to Federal recognition. To prove this restoration, a tribe must show: congressional enactment of legislation that restores the government-government relationship;[24] the tribe has been recognized through the Federal Acknowledgment Process;[25] or there has been a judicial determination/court approved judgement that was entered into by the United States and provides that the relationship was never terminated despite claims from the Executive Branch.[26]

For a tribe’s petitioned parcel to be taken into trust under the Restored Lands exception there must be demonstrated restoration legislation, and that legislation requires or authorizes the Secretary of the DOI to take land into trust within a specific area and the lands are within that geographic area.[27] If there is no restoration legislation, or if geographic parameters do not exist, the tribe must have modern and significant historical connection to the parcel. There must also exist a temporal connection between the date of the acquisition and the tribe’s restoration.[28]If the tribe is acknowledged under the Federal Acknowledgement Process, there cannot be an initial reservation proclaimed after the IGRA’s enactment.[29] In other words, the tribe seeking to be granted the Restored Lands exception cannot have had their original reservation granted to them after 1988, unless Congressional recognition has been given.[30]

A modern connection to the land is established if a majority of the tribe’s members reside within 50 miles of the parcel, or if the tribe’s headquarters are located within 25 miles of the land.[31] A significant historical connection is established if the parcel is located within the tribe’s last reservation via a treaty (ratified or unratified), or if there are documented historical connections.[32] Those historical connections are weighted more heavily if there is documentation by the Bureau of Indian Affairs, DOI, Indian Claims Commission, other Federal court, or Congress.[33]

A temporal connection must also exist between the date of the parcel’s acquisition and the tribe’s restoration. That temporal connection is established by evidencing that the land is the first land that the tribe has acquired since being restored to Federal recognition.[34] Alternatively, the tribe must have submitted an application to take land into trust within 25 years of their restoration.[35] The decision to accept the trust acquisition involves a system of administrative processes described in a guide written by the DOI.[36]  The land to be acquired must also be nearby the tribe’s existing reservation.[37]The tribe is required to provide an economic development plan if the land that is to be acquired will be used for business purposes.[38]

The difficulties in this process extend beyond the regulatory framework.  The journey of the Catawba Indian Nation to get a parcel known as the “King’s Mountain Site” in Kings Mountain, North Carolina taken into trust for gaming purposes is a long one. It started when The Catawba Indian Tribe of South Carolina Land Claims Settlement Act of 1993 restored the Catawba Indian Nation’s federal recognition.[39] The Catawba Indian Tribe of South Carolina Land Claims Settlement Act of 1993 is the culmination of a century-long struggle against the State of South Carolina over aboriginal land claims.[40] The 1993 Act, which restored the Catawba Indian Nation’s Federal Recognition, made IGRA wholly inapplicable to the Catawba Indian Tribe.[41] This was later retracted in a 2019 bill that “clarified” that the tribe was entitled to have land taken into trust for gaming purposes under the Restored Lands exception.[42] The 2019 Senate bill also authorized the DOI to take the parcel into trust (the Kings Mountain Site), for the purposes of gaming.[43]

III. The Catawba Indian Nation And Their Trust Acquisition Under The Restored Lands Exception Exemplifies The Difficulties of The Regulatory Process

The difficulties of the Catawba weaving their way through the regulatory framework of the Restored Lands exception started in 2013 when the Catawba submitted what is known as their “Mandatory Application” to the Secretary of the Interior in order to have the Kings Mountain Site taken into trust, pursuant to the 1993 Catawba Settlement Act.[44] However, on March 23, 2018 (five years later) the Deputy Secretary of the Interior issued a memorandum detailing that the mandatory authority of the DOI did not extend to the Site because it is outside of South Carolina.[45] The Deputy Secretary further explained that the mandatory acquisition provision between the Catawba and South Carolina did not extend to North Carolina since it was not part of the agreement.[46] The Catawba then retracted the Mandatory Application on April 4, 2018.[47] On September 17, 2018, the Catawba submitted what is known as the “Discretionary Application” from which the Site was taken into trust.[48] A Discretionary Application is one in which the discretionary authority of the Secretary of the DOI (sourced in the Indian Reorganization Act) is called upon to decide whether to take a parcel into trust or not.

On March 12, 2020 the Department of The Interior (DOI) accepted the proposal of the Catawba Indian Nation to take approximately 16.6 acres of land in Kings Mountain, North Carolina, into trust for the benefit of the tribe and for the purpose of gaming.[49] Their decision was based on the determination that the land falls under the Restored Lands exception.[50] This is detailed by the DOI in the decision by showing that the Catawba have completed the 3 phases of recognition required to meet the Restored Lands exception: initial Federal Recognition, dissolution of that Recognition, and finally, Restoration of Federal Recognition.

IV. The Eastern Band of Cherokee Indians’ Challenge Goes Against The Purpose of IGRA

The intertribal conflicts that result from DOI decisions create competitions between tribes for gaming revenue. The tribe who is petitioning to have a parcel taken into trust for the purposes of gaming is the only party who would want a more efficient and streamline process. Other nearby tribes see trust acquisitions for gaming as potential competition and often challenge the DOI decision to approve an acquisition. IGRA’s purpose is “to promote tribal economic development, tribal self-sufficiency, and strong tribal government.”[51] When tribes initiate legal challenges against each other in the context of gaming it undermines the purpose of IGRA because the tribe who is looking to gain economic independence is prevented from doing so by another tribe. The DOI decision on the Kings Mountain Site was met with one of these inter-tribal challenges, namely from the Eastern Band of Cherokee Indians (EBCI).[52]

The EBCI complaint lists reasons for which the DOI erred in their determination to accept the King’s Mountain Site into trust for the Catawba Indian Nation.[53] The EBCI maintains that: i) the King’s Mountain Site falls within the EBCI’s traditional aboriginal territory;[54] ii) that the DOI failed to consult the EBCI;[55] iii) that an Environmental Impact Survey was not properly done on the site;[56] iv) the EBCI was not consulted in accordance with the National Historic Preservation Act (NHPA); and, v) the 1993 Catawba Settlement Act has substantive issues which were not addressed in the DOI decision.[57]

After filing the complaint, the EBCI then filed an injunction in District Court for the District of Columbia (D.C.) to prevent the DOI from taking the King’s Mountain site into trust for the Catawba Indian Nation.[58] The Court denied the injunction because it did not find that there would be irreparable harm.[59] The EBCI had to show that the claims raised in their complaint amount to an irreparable harm, which the District Court found was not shown.[60]

While the claims alleged by the EBCI have merit in their own right, a larger issue is the foreseen economic impact that a Catawba gaming enterprise would have on the EBCI’s gaming revenue. The EBCI operates the only Indian gaming enterprise within North Carolina and a 5-state radius.[61] Having a monopoly on this territory undermines the purpose of IGRA by allowing a tribe who has enjoyed gaming revenue for over 20 years to bury an impoverished tribe like the Catawba Indian Nation in legal fees that delay the opportunity for tribal self-sufficiency. 

The DOI decision found that the King’s Mountain Site and the Catawba met the criteria detailed in the relevant regulations for the Restored Lands exception of IGRA.[62] Further, the DOI decision is shored up by the 2019 Senate Bill that affirmed the Catawba Indian Nation’s right to land in North Carolina, which falls within the service area detailed in the bill.[63]This is furthered by the finding that the Catawba would benefit greatly from the economic gains brought by gaming revenue. The DOI found that the significant unemployment of the Tribe’s members, the lack of a prosperous source of revenue for the Tribe, the Tribe’s dependency on funding, and lack of monies for proper infrastructure funding all could be remedied by revenue gotten from gaming.[64]

The amount of time and money, as a result of drawn-out litigation that the EBCI has cost the Catawba, on top of the time that the DOI has made the Catawba wait cannot be stressed enough.

V. Conclusion

Tribes should support each other in trying to shore up their own tribal sovereignty. Supporting other tribes who are going through to the process to gain economic independence from the federal government would be a great place to start. IGRA was drafted in theory to facilitate this, as seen in its policy goals’ section.[65]

The socio-economic impacts of gaming on a tribe who has been previously impoverished should be explored to truly give weight to the impact that gaming revenue can have. Allowing other tribes to impede a tribe from becoming self-sufficient through gaming revenue threatens tribal sovereignty of all tribes, and undermines the purposes of IGRA.


[1]  Indian Gaming Regulatory Act of 1988 Public Law 100-497-Oct. 17, 1988 100th Congress Sec. 2701; 25 U.S.C. ch. 29 at § 2701 et seq., 2702(1), (1988). 

[2] See, Christine Dell’Amore, Prehistoric Dice Boards Found––Oldest Games in America?, National Geographic (10-14-2020), https://www.nationalgeographic.com/news/2010/12/101210-dice-gaming-gambling-native-american-indian-casinos-science/#close.

[3] Indian Gaming Regulatory Act of 1988 Public Law 100-497-Oct. 17, 1988 100th Congress Sec. 2701; 25 U.S.C. ch. 29 at § 2701 et seq. (1988). 

[4] Id. § 2703(4).

[5] Id. § 2702(3). 

[6] Id. § 2704.

[7] Id. § 2719.

[8] Indian Gaming Regulatory Act of 1988, 25 U.S.C. § 2719(b)(B)(iii) (1988).

[9] Gaming on Trust Lands Acquired After October 17, 1988, 25 CFR 292.7 et seq. (2008).

[10] For a full list of Indian Land Decisions and the exception under IGRA by which they are decided, See, Indian Land Opinions, National Indian Gaming Commission, October 14, 2020, https://www.nigc.gov/general-counsel/indian-lands-opinions. 34/100 of these decisions were rendered under the legal theory that the tract met the Restored Lands exception.

[11] 25 U.S.C. ch. 29 § 2703(5).

[12] Id. § 2703(5)(A).

[13] Id. § 2703(5)(B).

[14] Id. § 2703(4)(A).

[15] Id. § 2703(4)(B).

[16] 25 CFR 292.8-292.10.

[17] 25 CFR § 292.8(a).

[18] Id. § 292.8(b).

[19] Id. § 292.8(c).

[20] Id. § 292.8(d).

[21] Id. § 292.8(e).

[22] 25 C.F.R. § 292.9(a).

[23] Id. § 292.9(b).

[24] Id. § 292.10(a).

[25] Id. § 292.10(b); For more information on the Federal Acknowledgement Process, See 25 CFR 83.8.

[26] Id. § 292.10(c)(1)-(2).

[27] 25 C.F.R. § 292.11(a).

[28] Id. § 292.11(b).

[29] Id. § 292.11(c).

[30] Id.

[31] Id. § 292.12(a).

[32] Id. § 292.12(b)(1).

[33] 25 C.F.R. § 292.12(b)(2).

[34] Id. § 292.12(c)(1).

[35] Id. § 292.12(c)(2).

[36] Memorandum to Assistant Secretary for Indian Affairs, Solicitor, Chairman, National Indian Gaming Commission, Final Evaluation Report on the Process Used to Assess Applications to Take Land Into Trust For Gaming Purposes (Report No. E-EV-BIA-0063-2003), From Anne L. Richards, Assistant Inspector General for Audits (September 1, 2005).

[37] See 25 C.F.R. § 151.11(b).

[38] Id. § 151.11(c).

[39] Catawba Indian Tribe of South Carolina Land Claims Settlement Act of 1993, H.B. 2399, 103rd Cong. § 14 (1993), [hereinafter,  “Settlement Act”].

[40] See, e.g., South Carolina v. Catawba Indian Tribe, Inc., 476 U.S. 498 (1986); Catawba Indian Tribe of South Carolina v. State of South Carolina, 865 F.2d 1444 (4th Cir. 1989); Catawba Indian Tribe of South Carolina v. State of South Carolina, 978 F.2d 1334 (4th Cir. 1992); Catawba Indian Tribe of South Carolina v. United States, 24 Cl. Ct. 24 (1991).

[41] See, e.g., Settlement Act at § 12 (Establishment of Expanded Reservation); § 13 (Non-Reservation Properties); § 14 (Games of Chance).

[42] Catawba Indian Tribe of South Carolina Land Claims Settlement Act of 1993, S. 790, 116th Cong. § 2(b) (2019).

[43] Id.

[44] Supra, note 39; In the Catawba Indian Tribe of South Carolina Land Claims Settlement Act of 1993 there is a provision that the DOI may take an additional ~300 acres into trust for the Catawba.

[45] Memorandum to Secretary, Mandatory Trust Authority Under the Catawba Settlement Act, from Deputy Secretary (Mar. 23, 2018) (Deputy Secretary’s Memorandum).

[46] Id. at 2.

[47] Letter, Chief William Harris to Deputy Secretary Bernhardt (Apr. 2, 2018).

[48] Memorandum to Chief William Harris, Catawba Indian Nation, Catawba Indian Nation Discretionary Application Decision, from Department of the Interior, Office of The Secretary (March 12, 2020), [hereinafter “DOI Decision”]; Until 2020, the Catawba Indian Nation was known as the Catawba Tribe of South Carolina. See 85 Fed. Reg. 5,642 (January 30, 2020).

[49] Id.

[50] See, 25 U.S.C. § 2719.

[51] 25 U.S.C. §2701.

[52] Plaintiff’s Complaint (EBCI Complaint), at 2, (March 17, 2020), Case 1:20-cv-00757, [hereinafter, “EBCI Complaint”].

[53] Id.

[54] Id.

[55] Id.

[56] Id.

[57] Id.

[58] Plaintiff’s Motion for Temporary Restraining Order and Preliminary Injunction, at 2, (March 17, 2020), Case 1:20-cv-00757-JEB.

[59] Memorandum Opinion, District Court for The District of Columbia, at 9, (April 30, 2020), Case 1:20-cv-00757-JEB.

[60] In the District Court’s denial of the TRO, the court found that the EBCI, at most, is alleging a procedural harm, not an irreparable one.See, Mem. Op. at 7.

[61] See generally, Map of Indian Gaming Location,National Indian Gaming Commission, https://www.nigc.gov/map.

[62] DOI decision, supra note 48, at  3-11.

[63] Id.

[64] DOI decision, supra note 48, at 12-13.

[65] Supra, note 1.

Categories
Commentary

Isolated Judgement

In Oregon, arrogant Judges and Justices made decisions that have had lasting detrimental impacts on remote Alaskan tribes and their sovereignty. This post focuses on summarizing some of Sydney L. Harring’s arguments contained in her chapter “The Struggle for Tribal Sovereignty in Alaska, 1867-1900.” The chapter discusses how one Supreme Court of Oregon decision, a subsequent District Court of Oregon decision, and a District Court of Alaska decision unfairly impacted tribes in Alaska.[1] The continuous refusal to recognize the sovereignty (through status as dependent wards) of the Tlingit, and other tribes within Southeastern Alaska, has had lasting ramifications on their recognition status.[2]

The Tlingit lived along a vast area of the southeast coastline of Alaska, rendering them especially vulnerable to United States colonization.[3] Russians colonized the area first, but did not encroach on Tlingit sovereignty directly.[4] The few Russians that actually settled there feared the Tlingit, and rarely disturbed them.[5] Russia sold Alaska to the United States in 1867 without informing the Tlingit of either the Russians claim to the land, or the United States’ claim to the land.[6]

The first disaster of a decision was made by Chief Justice Williams of the Oregon Supreme Court in United States v. Tom.[7] In this decision, Tom, an “Indian”, could be tried under Oregon law for selling alcohol to other “Indians”.[8]  The Court determined that the Indian Trade and Intercourse Act of 1834 (“1834 Act”) did not originally apply to Oregon, but that the act of Congress of June 5, 1850 extended to Oregon only “so far as its provisions may be applicable.”[9] This decision essentially allowed Oregon courts the authority to decide which portions of the 1834 Act would be followed. The Court noted that under the 1834 Act, Oregon was generally thought to be part of Indian Country but that “such is not the case.”[10] Chief Justice Williams reasoned that white interests greatly outweighed those of “savages”:

Is that provision prohibiting the sale of liquor to the Indians applicable? Very much of the act of 1834 is clearly unsuited to the present condition of the country. All which tends to prevent immigration, the free occupation and use of the country by whites, must be considered as repealed. Whatever militates against the true interests of a white population is inapplicable. Reference can be made to no law which, in express words or by implication, repeals the provision in question; and no good reason can be assigned why it should not be held applicable to our condition. If required in a country wholly inhabited by Indians, how much greater the necessity for its enforcement here, where defenseless white persons, women and children, are exposed to the violence of drunken savages.[11]

In the second case, decided in 1872, Judge Matthew P. Deady’s confusing reasoning in United States v. Seveloff led to the conclusion that the Alaska Act of 1968 did not incorporate the 1834 Act to Alaska.[12] Judge Deady used the decision of the court in United States v. Tom in United States v. Seveloff by determining that “Alaska was not Indian country” in part because Alaska was not yet a territory when the 1834 Act was created. [13] Judge Deady further determined that only laws related for commerce, customs, and navigation applied to Alaska, resulting in “no criminal law in effect in Alaska.”[14] Judge Deady called on Congress to correct his opinion if they meant to incorporate the 1834 Act.[15] Congress responded in 1873 by passing a law “extending the liquor control provisions of the Indian Trade and Intercourse Act to Alaska.”[16]

In United States v. Kie, Judge Ward McAllister Jr. followed the precedent set by Judge Deady that “Alaska was not Indian country” when he determined that the protection of tribal law in Crow Dog did not apply to Alaska.[17] Judge McAllister’s position was in direct opposition to what Justice Matthews intended for an expansive definition of Indian Country in Crow Dog.[18] The definition was broad enough that Alaska should have been recognized as Indian Country by Judge McAllister.[19]

Traditional Tlingit practices created a tension with federal law; Americans view these traditional practices as immoral and illegal. To illustrate, the Tlingit’s practice of punishing “witches” and the allowance of the murder, by husbands, of wives thought to be adulterous surely did not sit well with American settlers in Alaska. The narrow view of these incidents failed to recognize Tlingit tribal practices as a whole, which often resulted in peaceful resolutions and fair negotiations in disputes.[20] The continual resistance of the Tlingit to western law was not only justified but was evidence of their strong tribal identity. 

The treatment of Tlinglit members in Judge Deady’s court led to the Tlingits’ sobering recognition of the “bias of white justice.”[21] Judge Deady gained a reputation for dismissing charges against whites for assaults and murders of tribe members while failing to show the same mercy to the Tlingit for similar crimes.[22] In one example, Kot-ko-wot was unrepresented by any tribal member in Judge Deady’s court and was sentenced to execution by hanging for murder; Judge Deady further ordered that Kot-ko-wot’s body to be dissected by a medical school.[23] The Tlingit tribe took issue not with the execution but mainly with the dissection of his body and Kot-ko-wot’s lack of Tlingit representation.[24] The Tlingit felt that the dissection went beyond what was necessary for proper retribution because, according to Tlingit belief, the mangling of Kot-ko-wot’s dead body through dissection would affect him in the afterlife.[25] This treatment led to the Tlingits’ having a deep mistrust of white settlers and tribal members feeling disrespected and unprotected by the courts.[26] United States Navy Captain Beardslee was the only one that even came close to striking a proper balance between federal law and the respect of Tlinglit law. However, he was forced to do so “extralegal[ly].”[27]

Chaos and disaster struck after a Tlingit Shaman was killed when a bomb used for whaling accidentally exploded while he was working as a crew member.[28] The Tlingit were outraged and retaliated by taking two white hostages (who were treated “honorably”), a whaling boat and demanded payment of two hundred blankets.[29] The captain of the whaling boat wanted to teach the Tlingit a lesson and refused to settle the matter according to Tlingit law, which was the general practice Beardslee put into place. The Captain of the whaling boat asked the United States Navy to retaliate and an opportunistic Captain Marriman responded to the call by enacting his deadly plan in Angoon:

As soon as Merriman anchored in the harbor, the Tlingit released the hostages and the property. Merriman, in turn, captured some Tlingit “ringleaders” and demanded four hundred blankets in tribute. When the Tlingit refused, Merriman responded first by destroying forty canoes and later by burning the village. The Navy expedition then shelled a nearby village, and a landing party burned all the houses, except for a few belonging to Indians known to the Navy as “friendly.”[30]

The extralegal actions of the Navy likely resulted from inconsistent Court opinions which ultimately led to chaos in the Tlingit region. After the horrifying Angoon incident, Congress finally stepped in and created a more stable federal court system in Alaska.[31] The United States government failed to recognize the sovereignty of tribes in Alaska and their status was akin to that of whites.[32] It was only in 1936 that two tribes, the Tlingit and Haida, were recognized when the Indian Reorganization Act of 1934 was amended to include Alaska. Alaska’s southeastern tribes’ sovereignty should have been recognized but the failure of several rogue Judges to recognize the area as Indian Country prevented that and spun the area into chaos.

By: Paige Diem


[1]  Sidney L. Harring, The Struggle for Tribal Sovereignty in Alaska, 1867-1900, in Crow Dog’s Case: American Indian Sovereignty, Tribal Law, and United States Law in the Nineteenth Century, 207-50 (1994).

[2]  Id. at 207-08.

[3] Id.

[4] Id.

[5] Id.

[6] Id.

[7] United States v. Tom, 1 Or. 26, 27 (1853).

[8] Id.

[9] Id.

[10] Id.

[11] Id.

[12] United States v. Seveloff, 1 Alaska Fed. 64, 65 (D. Or. 1872).

[13] Harring, supra note 1, at 214-15.

[14] Id. at 215.

[15] Seveloff, 1 Alaska Fed. 64, 65.

[16] Harring, supra note 1, at 215.

[17] Id. at 219.

[18] Id.

[19] Id.

[20] Id. at 220-21.

[21] Id. at 217.

[22] Id.

[23] Id.

[24] Id. at 225.

[25] Id. at 226.

[26] Id. at 225.

[27] Id. at 228.

[28] Id. at 229.

[29] Id. at 230.

[30] Id.

[31] Id.

[32] Id. at 233.

Categories
Commentary

Restorative Justice and the Community: Tribal Justice

            Community, restoration, and balance: these are the goals and tenets of Peacemaking in tribal courts.[1]Peacemaking is centered on customary and traditional laws and the values of the community.[2]Through these values and traditional laws, Peacemaking courts reconnect individuals to their communities and the values within those communities.[3]The judge in a Peacemaking Court seeks to help the parties involved arrive at a solution without the use the punitive measures or reprimand.[4]The Peacemaking Court seeks to restore relationships, not to render judgement or assign fault to any one person.[5]

The film Tribal Justice documents the role of Peacemaking in the communities of two tribal court judges in California.[6]In the trailer of the film, the tribal court judge communicates and meaningfully interacts with those in the Peacemaking court.[7]Peacemaking is solution-oriented, and the purpose of Peacemaking is to help individuals restore their relationships to their community and those in their lives.[8]There are no stringent formalities or formal hierarchy between the parties and the judge as one might find in adversarial Western courts.[9]The goal of Peacemaking is not to punish or judge, but to empower individuals to strengthen and improve their relationship to their community through traditional law.[10]


Savanna Duran, 3L, is the Submissions Editor for the Tribal Law Journal. She enjoys reading the new articles submitted for publication and getting to know incoming TLJ board and staff. Savanna joined TLJ because she wanted tobe in theSouthwest Indian Law Clinic and thought that being on the journal would help her learn about Native American issues. 

She hopes to work with the Native American and Hispanic Communities as a practicing attorney, specifically in public interest law such as policy work and legislative issues.

Savanna was born and raised in Albuquerque and has started a family of her own. She has a supportive husband, Paul, and a beautiful, energetic baby boy, Sevastian, who is 3 years old. 

She is currently a member of the Native American Law Student Association and the Immigration Law Student Association on campus and has done an externship with the New Mexico Department of Workforce Solutions. Savanna came to the UNM School of Law because she liked the environment of the school and was interested in the well-known clinical program. As far as her experience with TLJ, she is impressed by the progress we have made and how well we have worked as a group.


[1]See generally, Tribal Justice (Vision Maker Media), http://www.pbs.org/pov/tribaljustice/ (last visited Mar. 11, 2019); Susan J. Butterwick, Timothy P. Connors, and Kathleen M. Howard, Tribal Court Peacemaking: A Model for the Michigan State Court System?, 94 Mich. B. J. 34, 35 at 36-37 (2015).

[2]Nicholas A. Robinson, Elizabeth Burleson, and Lin-Heng Lye, Introduction to Tribal Sovereignty. 3 Comparative Environmental Law and Regulation § 56A:2 (2018). 

[3]See generally Butterwick et. al., supranote 1, at 37. 

[4]Robinson et. al., supraat note 2. 

[5]Tribal Justice(Vision Maker Media), http://www.pbs.org/pov/tribaljustice/ (last visited Mar. 11, 2019); Butterwick et. al., supranote 1, at 37-38.

[6]Tribal Justice(Vision Maker Media), http://www.pbs.org/pov/tribaljustice/ (last visited Mar. 11, 2019)

[7]Id.

[8]See generally Tribal Justice(Vision Maker Media), http://www.pbs.org/pov/tribaljustice/ (last visited Mar. 11, 2019); Butterwick et. al., supranote 1, at 37-38.

[9]See generally Tribal Justice (Vision Maker Media), http://www.pbs.org/pov/tribaljustice/ (last visited Mar. 11, 2019); Jennifer Hendry, Melissa L. Tatum, Human Rights, Indigenous Peoples, and the Pursuit of Justice, 34 Yale L. & Pol’y Rev. 352, 361-62 (2016). 

[10]See generally Tribal Justice(Vision Maker Media), http://www.pbs.org/pov/tribaljustice/ (last visited March 11, 2019); Robinson et. al., supranote 2.