The Sovereignty Problem in Federal Indian Law

Abstract

There is a sovereignty problem in federal Indian law—namely, that the federal government’s sovereign defenses prevent tribal nations and individual Indian people from realizing justice in the courts. Often, compelling tribal and Indian claims go nowhere as the judiciary defers to the interests of the United States, even where Congress has expressly stated its support for tribal interests. Conversely, tribal judiciaries allow claims to proceed to the merits, invoking customary and traditional law to hold tribal governments accountable.

Sovereignty theory helps to explain why justice can be done in one court system but not another. But federal, state, and tribal courts are all American courts that can and should learn from one another. This Article is an effort to show that federal sovereign defenses are not inevitable, nor are they even necessary.

About the Author

Harry Burns Hutchins Collegiate Professor of Law and Professor of American Culture, University of Michigan. Enrolled citizen, Grand Traverse Band of Ottawa and Chippewa Indians. Thanks to Wenona Singel and the participants of Virginia and Boston University law school faculty workshops for their comments and suggestions. Miigwetch to Angela Riley, Lauren van Schilfgaarde, the UCLA Native Nations Law and Policy Center, and the UCLA Law Review for the invitation to participate in the Red Rising Symposium.

By LRIRE