From The High Country News [October 7, 2021] and & the west (Felicity Barringer):
Elizabeth Reese, Stanford Law School’s first Native American professor, discusses the intentional marginalization of tribal legal structures.
This story is co-published with & the West, an independent publication at Stanford University.
Assistant Professor Elizabeth Reese, who is Nambé Pueblo, joined the Stanford Law School faculty as its first Native American member in June 2021. Her new article, published in the Stanford Law Review, analyzes the way United States legal institutions systematically ignores the legal structures created by tribal governments. She recently spoke with Felicity Barringer about why she chose to study these ellipses in legal history, what harm the practice has done and what mainstream legal systems have missed.
This conversation has been edited for length and clarity.
Felicity Barringer: Why does your work focus on the way the legal systems of the 574 federally recognized tribes have been ignored?
Elizabeth Reese: I’m from Nambé Pueblo, a small Indian reservation just north of Santa Fe, New Mexico. When I’m home, most of my conduct is governed by the Nambé Pueblo tribal government. Everything from where and how I dump my trash to my right to own a firearm or not is decided—not by the State of New Mexico or the United States federal government—but by my tribal government.
When I enrolled in law school I was told that there are only two types of law in the United States that come from the two kinds of governments we have in our federal system: federal law and state law. Imagine how bizarre this was for me! I’m a citizen of a nation that’s older than almost any other on the continent. I’ve navigated tribal law my entire life, voted regularly in elections, complained about when they changed the speed limit, etc. Then, I show up to law school and everyone acted like the entire legal regime I grew up with doesn’t exist. It was maddening!
Not only was the feeling of invisibility and erasure confusing and insulting, I felt like I was the only one who knew that what was being presented to us was an incomplete picture of the legal system in the United States. As educators we ought to tell the truth, to give our students the full picture of American law. We should find it problematic that we uncritically ignored 574 governments that collectively govern as much land as California.
FB: What price does the country pay for decades of marginalizing the way tribal laws and tribal systems of government have evolved?
ER: I think we all pay a huge price. That comes both from the damage of how we have marginalized tribes and from what we have missed out on by doing so.
A difficult truth I struggled with in my recent article The Other American Law: how — even whether — to raise that tribal law was not marginalized by accident. Part of the colonial project involved making pre-existing government regimes look less worthy than the those that sought to displace them. Tribal governments and their laws were dismissed and delegitimized by the United States and other colonial powers as a part of their work asserting their own superior claims to govern the same territory.
It’s an ugly truth. But it’s one that deeply colors how we see tribal governments and their laws. When most Americans imagine a pre-colonial “tribal government” we think small, familial and primitive. We imagine a “less evolved” version of Western societies that has nothing novel to offer us because our own ancestors have been there and done that already. What we did was equate differences with deficiencies and forget a fundamental truth that we’ve all been human for just as long, simply making different choices. A lot of knowledge was lost or destroyed as colonial powers steamrolled over what they dismissed or were willfully blind to.
And a lot of opportunities to learn from one another never happened as tribal legal ideas or solutions didn’t trickle to an open-minded ear within the United States as they perhaps could have. Tribes, in turn, became incredibly distrustful of outsiders, and justifiably so.
Contemporary tribal governments have certainly changed a great deal since pre-colonial times — so has the United States. So, it is particularly tragic that the United States and tribes often fail to see each other clearly when they’ve both grown and changed so much in a uniquely intertwined way. They share a history now, and have reacted to that history or begun to reflect each other in interesting ways.
FB: Can you explain the difference between tribal law and what legal scholars call “Indian law?”
ER: Yes! This is a key distinction. “Tribal law” is a kind of law that is passed by a tribal government and that applies on their land and to — in varying degrees — the persons on that land. Within the category of “tribal law” are many different tribes’ laws: Navajo Nation law, Cherokee Nation law, Sault Tribe of Chippewa Indians law, etc. Just as, within the category of “state law,” there is California law, Michigan law, etc.
By contrast, “Indian law” is an academic field that includes both “tribal law” and all other law that has to do with Indians, most importantly, the body of federal laws that determine how much power and what kinds of powers tribal governments have. We call that body of federal law, “Federal Indian law.”
Unfortunately, at most U.S. law schools, if they have a class on “Indian law” at all, they provide either just a “Federal Indian law” class or it called “Indian law” that is almost entirely devoted to Federal Indian law. Tribal law, the law actually made by Indians, is ignored in favor of a focus on U.S. federal court decisions and congressional statutes that are, at best, the result of staunch Indian advocacy from the wings or, at worst, the decisions justifying colonialism itself.
Part of my work is a call to pay more attention to what I think of as the real Indian law.
FB: How is the work of tribal legal systems treated in federal, state and local courts? Do any court decisions treat tribal laws with the kind of attention given to state and local laws? Do non-tribal courts address issues that tribal laws raise?
ER: Tribal law is treated quite terribly, if it’s given the time of day in state or federal courts. This is particularly disheartening when state and federal courts have such a developed system for when, how, and why to defer to one another.
There’s an entire law school class that deals in large part with state law making an appearance in federal courts in particularly tricky instances. When that happens, federal courts will often wait to let a state court weigh in or defer to their decisions on a question.
By contrast, vital questions of tribal law — such as what is essential to the political integrity, health or welfare of the tribe to function as a self-governing entity — are decided by federal courts on their own, without pausing to ask if they are the most qualified court.
State and federal courts ought to be asking when deference to tribal courts is necessary, but many often treat an issue of tribal law — say whether a tribal law regulating reservation hunting is an important or necessary part of their self-governing powers — as if it is a fact of a case that a private party proved or didn’t using evidence they can submit to the court. This is a question about what is important to tribe’s legal and political system — who they are and what is at the heart of their government. We would never think of a question like “is free speech important to the United States’ political structure” as something private parties would litigate over and resolve by submitting evidence, let alone as something a judge from outside the United States would be qualified to decide for the United States without its participation. Any answer that foreign judge gave would seem, well, ridiculous — because it would be. If anyone can answer that question, it’s the United States itself.
FB: Why does Congress have no Native members who represent their tribes, rather than jurisdictions in their home state? The 2020 census shows an unprecedented 10-year increase in the combined population of Native Americans and Native Alaskans: 9.7 million, up from 5.2 million a decade ago. Now these groups account for 2.9% of the national population. Could a Native voting bloc be developed across existing jurisdictional lines?
ER: Good question! Why aren’t there at least 574 Congressmen representing each of the Indian tribes just like there are at least three representing each of the 50 states? I think the answer lies in the same colonial ugliness we discussed above, but not entirely. Remember that tribal governments were powerful allies and enemies throughout the history of the burgeoning United States.
It wasn’t a foregone conclusion at all that these governments would be swept aside instead of reorganized into one of the states as many other government entities ultimately were. Some tribes even received promises regarding representation within the United States’ political system that are now being finally honored. The Cherokee Nation, for example, bargained for a delegate in Congress in several of their treaties. Just in 2019 Kim Teehee was selected to serve as their first delegate, and they are waiting on Congress to officially seat her. She will, however, not be a voting member.
But even if the United States seats the Cherokee delegate they promised, one of the most amazing things happening with Indian representation right now is how tribes have managed to structure themselves and their services around tribal citizenship status rather than geography. Tribal citizens now live across the country, not just on their reservations or even ancestral home bases. Unlike the other U.S. jurisdictions, most tribal citizens do not lose the right to politically participate or receive certain services because they relocated.
Tribes are very creative, unique political entities; they are transcending a lot of the current physical boundaries we currently use to delineate political rights and government powers.
FB: How have Indian nations included expatriates in their electorates? Your article discusses an Indian tribes solution to expatriate voting in comparison to the U.S. approach to a voting population that includes 3 million people who live abroad, either serving in the military or choosing to live in another country.
ER: This question follows nicely from my prior discussion. In troubleshooting how to encourage political participation from citizens that don’t live on the reservation anymore, one tribe, the Citizen Potawatomi Nation of Oklahoma, decided to restructure their legislature so that their representatives would be composed of districts based on where they lived now, not where they last lived within the tribe’s territory.
That meant districts for far flung parts of the world, but that created community for the Citizen Potawatomi of New England, the Plains, or the Deep South. And it worked! Tribal political participation went up! Interestingly, the population of millions of American expats also vote at a much lower rate than we’d expect. The United States could try what the Potawatomi did and give expats their own political district of some sort; one that represented the unique interests of the predominately military and highly educated expat population.
FB: The state of Oklahoma recently petitioned the Supreme Court to narrow its 2020 McGirt decision, which effectively declared much of eastern Oklahoma to be Indian territory subject to tribal laws. Why is this such a big issue for the state? Will the McGirt decision prompt the legal world to pay more attention to tribal law?
ER: There was a lot of fear and misunderstanding about the McGirt decision. The bottom line: very little, if anything, would likely change for non-Indian Oklahomans since tribal law does not apply to non-Indian owned land or non-Indian persons’ conduct, even within the boundaries of a reservation, except in very rare circumstances.
The idea, however, that even if tribes were in complete control that would be somehow an automatic disaster is something we ought to push back against. Tribal governments are governments just like any other. They can be effective, and they can be flawed. But tribal governments should not be feared because they are unknown.
This decision does bring the possibility of tribal rule out of the shadows and, hopefully, in a way that normalizes it to Oklahomans rather than sensationalizing it. As more and more Oklahomans who are also tribal citizens opt into tribal courts and other services I think the visibility and acceptance of the tribes will only increase.
When I gave a talk about tribal law last year, I included PowerPoint slides with photos of tribal police cars, tribal court judges, tribal legislative chambers, tribal building permits, tribal census documents, tribal tax offices, tribal water facilities, etc. A colleague remarked afterwards that even though I’d talked to him many times about tribal law, it was entirely different seeing those images. It made clear to him in an instant how very real tribal governments are and how — just as I had said many times — they are just governments. As more Oklahomans see tribes for themselves, I have no doubt they will have the same reaction.
FB: What steps should be taken to normalize the inclusion of tribal law and tribal governmental systems in the legal landscape of courts in the United States?
ER: A huge step we can all take is to be more aware of the language that we all use to describe not just tribal governments, but Native people generally. We are a racial and demographic group, sure, but that has little real meaning. My ancestors were Indigenous people in New Spain, in Mexico, and now we are Native Americans—but the whole time were the people of Nambe Pueblo people. Recognizing Native are people not a monolith, but citizens of hundreds of distinct political entities within the United States in how we discuss them would go a long way to normalizing their recognition more broadly as such.
There is a lot of unintentional erasure that happens because we often don’t use the right words to discuss Native people or their governments. A tip that I recommend is asking yourself if you substituted in more familiar group’s name in sentence, would it still make sense? If I want to use “Native American” or “American Indian,” I need to remember that I’m using a continent-wide term with as little real meaning for people’s identity or political groupings as other continent-wide terms like “Asian” or “European.”
Say you want to know about Native American religion and start off thinking you want to ask: “What is Native American religion?” If you instead swap in a more familiar group’s word and ask, “What is European religion?” the error is immediately apparent. There is no single European religion, just as there is no Native religion. So, you’d know to rephrase into something like “How many religions are there in Europe?” or “What is the most popular religion in Europe?”
Felicity Barringer is the editor and lead writer for & the West, an independent publication based at Stanford University’s Bill Lane Center for the American West. At The New York Times for three decades, she covered such beats as national environmental news and the United Nations, and worked as a correspondent in Moscow. Her career began at The Bergen Record; she also worked at The Washington Post for nine years.