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

By Mikayla Ortega-Speight

Introduction

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

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

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

Background

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

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

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

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

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

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

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

Casey v. Muscogee (Creek) Nation

Facts & Procedural History

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

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

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

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

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

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

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

Issue and Holding

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

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

Reasoning

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

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

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

(1) the length of the delay,

(2) the reason for the delay,

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

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

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

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

Implications of Casey v. Muscogee (Creek) Nation

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

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

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

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

Conclusion

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

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

[2] Id. at 3.

[3] Id.at 7.

[4] Id.

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

[6] Id.

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

[8] Id. at 6.

[9] Id. at 7.

[10] 2013 and 2022 Reauthorizations of the Violence Against Women Act, U.S. Dep’t of Just., (Sept. 20, 2022), https://www.justice.gov/tribal/violence-against-women-act-vawa-reauthorization-2013-0.

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

[12] M(C)NCA Title 14, § 1-303 (F).

[13] Id.

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

[15] Id.

[16] Id. at 2.

[17] Id.

[18] 2013 and 2022 Reauthorizations of the Violence Against Women Act, U.S. Dep’t of Just., (Sept. 20, 2022), https://www.justice.gov/tribal/violence-against-women-act-vawa-reauthorization-2013-0.

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

[20] Id. at 3.

[21] Id. at 2.

[22] Id.

[23] Id.

[24] Id. at 2-3.

[25] Id.

[26] Id. at 3.

[27] Id.

[28] Id.

[29] Id. at 3-4.

[30] Id. at 4.

[31] Id.

[32] Id. at 5.

[33] Id. at 9.

[34] Id.at 7-8. 

[35] Id. at 8.

[36] Id. at 7-8.

[37] Id. at 9.

[38] Id.

[39] Id.

[40] Id.

[41] Id.

[42] Id. at 9-10.

[43] 2013 and 2022 Reauthorizations of the Violence Against Women Act, U.S. Dep’t of Just., (Sept. 20, 2022), https://www.justice.gov/tribal/violence-against-women-act-vawa-reauthorization-2013-0.

[44] Id.

[45] Id.

[46] Id.

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

[48] Id. at 7.

Advertisement

Public Law 280

By Alicianna Martinez

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

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

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

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

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

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

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

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

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

[2] Id.

[3] Id.

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

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

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

[7]  Id.

[8]  Id.

[9]  Id.

[10] Gardner and Melton, Supra note 4.

[11] Id.

[12] Id.

[13]  Id.

[14]  Id.

[15]  Id.

[16]  Id.

[17]  Id.

[18]  Id.

[19]  Id.

[20] Id.

[21]  Id.

[22]  Id.

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

By Hannah Tompkins

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

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

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

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

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

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

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

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

^[2] Id. at 12.

^[3] Id.

^[4] Id. at 63.

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

^[6] Id.

^[7] Id. at 169.

^[8] U.S. Const., art. VI, § 2.

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

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

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

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

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

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

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

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

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

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

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

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

^[20] Id.

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

^[22] Id.

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

Navajos Wear Nikes: A Reservation Life by Jim Kristofic

Book Review By: Brittany Dutton-Leyda

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

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

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

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

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

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

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

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

[2] Id. 

[3] Id. at 8-19.

[4] Id. at 33.

[5] Id. at 52.

[6] Id. at 192.

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

[8] Id.

[9] Kristofic, supra note 1 at 172.

[10] Id. at 91.

[11] Id. at 94-99.

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

[13] Id. at 161, 172.

[14] Id. at 192.

[15] Id.

[16] Kristofic, supra note 2.

Living Relationships

By Bree Barnett

The golden light shown across the land,

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

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

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

and the wind cooled the dysphoria of everyday.

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

Stress melting away as you reunite with natures healing embrace,

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

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

and cultivate the divinity in life’s simple enchantment.

The Four Directions

By Erin Fitz-Gerald

The nudge of the dog’s nose

lifts my eyes from the page.

It is time for the journey home.

West to the river

the whispered lapping loosens the mind’s hold.

A soft whiff draws me further within.

Along the north path

crow, duck, gull and crane serve as nobles

in the bald eagle’s court.

We join others and are still.

With a slight bow we move on.

To the east mountains blush.

Sky softens in tenderness… or is it encouragement?

 Maybe, it’s both/and.

To the south dust nestles my step

as I enter the congregation of embracing cottonwoods

backlit in gold.

I settle in for the night

having made my way home.

The Prior Existence, Authority and Necessity of Tribal Customary Law

by Nina Chester

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

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

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

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

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

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

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

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

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

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

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

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

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

---

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

[2] Id.

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

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

[5] Id. at 235.

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

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

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

[9] Id.

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

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

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

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

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

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

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

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

[18] Id. at 180-187.

[19] Id. at 176.

[20] Id. at 176.

[21] Id. at 177.

[22] Id. at 179.

[23] Id. at 179.

[24] Id. at 182.

[25] Id. at 176.

[26] Id. at 186.

[27] Id. at 187.

Law of Indigenous Peoples Paper Topic: Max Spivak

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

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

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

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

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

The conclusion of the paper noted that 

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

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

---

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

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

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