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Public Law 280

By Alicianna Martinez

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

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

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

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

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

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

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

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


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

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

By Hannah Tompkins

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

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

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

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

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

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

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


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

[2] Id. at 12.

[3] Id.

[4] Id. at 63.

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

[6] Id.

[7] Id. at 169.

[8] U.S. Const., art. VI, § 2.

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

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

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

[12] Native Partnerships, Living Conditions, Native American Aid (last visited May 5, 2022), 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.

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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).

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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.

Categories
Opinion Student Reflections

Reflection: Juvenile (in)Justice for Indigenous Youth

By: Brittany Dutton-Leyda

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

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

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

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

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

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

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

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

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

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

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


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

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

[3] Id.

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

[5] Id. at 1021.

[6] Id. at 1021.

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

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

[9] Id.

[10] Id.

[11] Id. at 1411.

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
Indian Law Announcements

Tribal Legal Preparedness Project

The University of Pittsburgh (PITT) Graduate School of Public Health has just launched their Tribal Legal Preparedness Project. After several years of communication and listening sessions with Tribal Nations, PITT Graduate School of Public Heath and the CDC have created this free resource to help tribes within the U.S. enhance their preparedness plans for public health emergencies. For more information go to the project website, http://tlpp.pitt.edu/, or their recent blog, http://insideupmc.upmc.com/tribal-preparedness-project-launches/.

Categories
Commentary Events Student Reflections

Opinion: Federal Bar Association’s Indian Law Conference

The Federal Bar Association’s Indian Law Conference took place from April 5-6, 2018 at the Talking Stick Resort in Scottsdale, Arizona. This year, the Federal Bar Association celebrated its 43rd Annual Indian Law Conference. The theme of this year’s Indian Law Conference was the examination of how tribal nations can use existing and new tools to effectively protect and secure their futures. In addition, 2018 marked the 40th anniversary of the Indian Child Welfare Act (ICWA), the 30th anniversary for the Indian Gaming Regulatory Act (IGRA), and 50th anniversary of the Indian Civil Rights Act (ICRA).

The annual Indian Law Conference covers many areas of law that are most relevant and controversial in Indian Country. Among the areas of law covered, the conference highlighted the three anniversary statutes by addressing them as part of their plenary line up, such as: “30 Years Later: IGRA and Economic Development,” “The Indian Civil Rights Act at 50: The Intersection of Individual Civil Rights, Human Rights, and Tribal Sovereignty,” and “40 years later: ICWA and the Role of Tribal Courts.” Each session was not only insightful, but compelling. The “IGRA and Economic Development” illustrated the personal relationships between the head of the National Indian Gaming Commission and tribal leaders. Del Laverdure shared an entertaining anecdote about a hostile meeting he had with a tribal leader, where the tribal leader was so frustrated and angry that he had to shout his demands at Del. Only after the meeting, the tribal leader approached Del and apologized as if it was another day at the office. Del had shared with the audience that he understood where the tribal leader was coming from. Just like Del had tribal leaders to answer to, the tribal leader had his people to answer to. In the same plenary, Larry Roberts presented IGRA facts that was compelling. Since the enactment of the Indian Gaming Regulatory Act, the Indian communities that have adopted Indian gaming in their areas, have exponentially increased their employment rate, revenues, and overall economies. The Indian gaming industry is now worth more than thirty-one billion dollars.

The Fed Bar Indian Law Conference attracts hundreds of legal professionals and law school students from around the country. Thus, it creates an opportunity for many legal professionals and law students to network and exchange information. It is not uncommon for students to meet with potential employers and for legal professions to develop a working relationship with other tribes or firms. This would be one of the most attractive features of the conference.

In addition, the National Native American Law Student Association (NNALSA) uses the annual Indian Law Conference as a platform to network, meet, and hold elections for its board. NNALSA hosts informational panels for their members to meet practicing attorneys and network with other law students.

Overall, the Fed Bar conference was a great experience because it provided insightful panel discussions, excellent networking opportunities, and a good platform for NNALSA to have its annual meeting.

During the Conference, it was also announced that it will be returning to Albuquerque, New Mexico for the 2019 Conference! We look forward to seeing all of the Indian law attorneys present in TLJ’s home city!

By Lyman Paul

Lyman Paul is a 2L students at UNM School of Law. He is from the Navajo Nation (Diné). He is of the Sleeping Rock People Clan (Tsenabił nii) and born for the Bitter Water Clan (Tódich’ii’nii). He is from Pine Hill, New Mexico on the Ramah Navajo Chapter, near Ramah, NM. He has a Bachelor of Science in Engineering in Civil Engineering from the Northern Arizona University in Flagstaff, Arizona.

Categories
Events

Indian Blood: A Presentation

On November 8, 2017 the UNM Native American Law Student Association, in collaboration with the State Bar of New Mexico Indian Law Section, hosted a lecture titled “Indian Blood.”  The event–covering a very important and often controversial issue–received overwhelming attention throughout the state and beyond.  The lecture was well attended, filling the largest UNM Law School lecture hall to capacity.   Tribal leaders, tribal members, UNM School of Law students and alumni, and many interested community members gathered for an evening of education and dinner.  The speakers covered topics including the history of blood quantum in Indian communities, the effects of blood quantum on individual identity and belonging within a tribal community, and the impacts on a community divided by opposing viewpoints.

In order to set the stage for such a controversial and often emotion topic, the lecture began with a prayer by Governor Benavidez from Pueblo of Isleta, and a prayer was also offered by Chad Abeita (2L UNM School of Law Student – Navajo) before the meal.

Audience members, all affected in their own way by Indian Blood and blood quantum issues appeared to be grateful to listen and learn from some of the experts in the field and to hear how one community member experienced blood quantum membership changes first hand.

If you would like to view a recording of the event, please follow this link: https://lawmedia.unm.edu/public/special_events/Indian_Blood/

By Roshanna Toya

Roshanna Toya is from Pueblo of Isleta.  She is a second-year student at UNM School of Law pursuing a juris doctorate and a certificate in Indian Law.

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Categories
History Indigenous Law

Historical Trauma and Healing from Boarding School Abuse

From the 1890s to the 1970s, the U.S. government sought to “Christianize” Native Americans by separating children from their Native culture, which ultimately led to one of the darkest chapters in Native American history: boarding schools.[1] Many Native American children suffered from both physical and emotional abuse while attending boarding schools, which has given rise to historical trauma.[2]

Historical trauma is unresolved grief from past experience that negatively impacts the emotional and physical welfare of survivors and the next generations.[3] Thousands of children in both the United States and Canada suffered from many acts of cruelty, including severe emotional, physical, and sexual abuse.[4] Many children were forced to live in unsanitary and unsafe conditions, as well as given  insufficient meals from food of very poor quality.[5] In addition to these horrific, disease-filled living conditions, the children were forced to do hard labor to teach them the meaning of hard work.[6] Boarding schools attempted to eradicate the Native American culture, traditions, and languages by punishing or beating children for practicing their culture.[7] As a result, one of the major impacts of the boarding schools was the loss of culture and personal identity.[8]

Today, depression, substance abuse, and suicide are common issues in Native American communities.[9] One research study on historical trauma interviewed elders who attended boarding schools as children.[10] Most of the elders participating in this interview stated that they suffered from depression and alcoholism as adults.[11] Some also shared that they developed a strict parenting style with their children similar to the strictness that they were treated with growing up in the boarding schools.[12] Survivors often struggled as parents because the forced separation from their families deprived survivors of the opportunity to learn their culture, traditions, and parenting skills from their families.[13]

In another research study that focused on healing from historical trauma, boarding school survivors discussed ways of healing from the historical trauma of boarding schools.[14] A participant suggested creating awareness of the cruelties suffered at the boarding school to start a dialogue about the effects of the boarding schools and to educate future generations on the history of boarding schools.[15] Another participant discussed returning and reconnecting to traditions and spirituality.[16] The power of language was also discussed by one participant, who stated that relearning the language helped to heal the trauma of the forced assimilation of the boarding schools.[17] As survivors heal from their experience at boarding schools, the path to legal remedies becomes more complicated due to the government’s unwillingness to acknowledge the physical and emotional damage caused by the boarding schools.

Hundreds of survivors have brought suits against individuals from the boarding schools and institutions responsible for physical and sexual abuse.[18] However, some states have attempted to prevent lawsuits from boarding school survivors. South Dakota, for example, passed legislation that set the statute of limitations to three years after the survivors turned twenty-one.[19] Sadly, this is not the first  attempt to avoid consequences from the abuses from the boarding schools. In 1948, the UN Convention on Punishment and Prevention of the Crime of Genocide expanded the definition of genocide to include more than the mass killing of groups of individuals.[20] As a result, the U.S. could have faced punishment for its treatment of both Native Americans and African Americans. To avoid punishment, however, the U.S. did not ratify this 1948 Genocide Convention until 1988.[21]

Many survivors suffered unthinkable forms of abuse, and they have continued to feel the effects of the trauma they experienced as children. Reconnecting with culture, traditions, and language has helped survivors to heal from the physical and emotional abuse committed at the boarding schools. Today, we can create awareness of the effects of historical to better understand this dark time in history.

By Savanna Duran

Savanna Duran is a 2L at UNM School of Law. She was born and raised in Albuquerque, New Mexico, and double majored in English and Spanish at UNM. In her spare time, she enjoys reading, watching movies, and listening to music. She would like to thank her family, husband, and son for their support.


[1] Andrea A. Curcio, Civil Claims for Uncivilized Acts: Filing Suit Against the Government for American Indian Boarding School Abuses, 4 Hastings Race and Poverty L. J. 46 (2006).

[2] Lisa Greyshield et. al. Understand and Healing Historical Trauma: The Perspectives of Native American Elders, 37:4 Journal of Mental Health Counseling 295 (2015).

[3] Id. at 296.

[4] Curcio, supra note 1, at 46-47, 68.

[5] Id, at 63-64.

[6] Id. at 64-67.

[7] Greyshield, et. al., supra note 2, at 296; Curio, supra note 1, at 60-61.

[8] Curio, supra note 1, at 59-61.

[9] Greyshield et. al., supra note 2, at 296.

[10] Barbara K. Charbonneau-Dahlen, John Lowe & Staci Leon Morris. Giving Voice to Historical Trauma Through Storytelling: The Impact of Boarding School Experience on American Indians, 25 Journal of Aggression, Maltreatment & Trauma 598, 602 (2016).

[11] Id. at 611.

[12] Id.

[13] Curcio, supra note 1, at 73-74.

[14] Greyshield et. al., supra note 2, at 303.

[15] Id.

[16] Id.

[17] Id.

[18] Charbonneau-Dahlen, John Lowe & Staci Leon Morris, supra at note 10, 612-613.

[19] Id. at 613.

[20] Curio, supra at note 1, at 111-112.

[21] Id.