abstract. For too long, tribal judiciaries have been an afterthought in the story of tribal self-determination. Until the last half-century, many tribal nations relied on federally administered courts or had no court systems at all. As tribal nations continue to develop their law-enforcement and police powers, tribal justice systems now play a critical role in tribal self-determination. But because tribal codes and constitutions tend to borrow extensively from federal and state law, tribal judges find themselves forced to apply and enforce laws that are poor cultural fits for Indian communities—an unfortunate reality that hampers tribal judges’ ability to regulate and improve tribal governance.

Even where tribal legislatures leave room for tribal judges to apply tribal customary law, the results are haphazard at best. This Article surveys a sample of tribal-court decisions that have used customary law to regulate tribal governance. Tribal judges have interpreted customary law when it is expressly incorporated into tribal positive law, they have looked to customary law to provide substantive rules of decision, and they have relied on customary law as an interpretive tool. Reliance on customary law is ascendant, but still rare, in tribal courts.

Recognizing that Indian country will continue to rely on borrowed laws, and aiming to empower tribal courts to advance tribal governance, this Article proposes that tribal judges adopt an Indigenous canon of construction of tribal laws. Elevating a thirty-year-old taxonomy first articulated by Chief Justice Irvin in Stepetin v. Nisqually Indian Community, this Article recommends that tribal judges seek out and apply tribal customary law in cases where (1) the relevant doctrine arose in federal or state statutes or common law; (2) the tribal nation has not explicitly adopted federal or state law on a given issue in writing; (3) written tribal law was adopted or shifted as a result of the colonizer’s pressure and interests; and (4) tribal custom is inconsistent with the written tribal law, most especially if the law violates the relational philosophies of that tribal nation. Tribal judiciaries experienced at applying tribal customary law will be better positioned to do justice in Indian country.

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. I participated as a judge in several of the opinions discussed here, but the views expressed here do not necessarily reflect the official position of any court or my own views as a judge in a given case. As always, miigwetch to Wenona Singel. For helpful comments and support, thanks to Greg Bigler, Kristen Carpenter, JoAnne Cook, Eric Hemenway, Emily Proctor, Angela Riley, Neoshia Roemer, Joe Singer, Greg Smith, Kekek Stark, Elizabeth Kronk Warner, Kevin Washburn, Kyle Whyte, Bill Wood, April Youpee-Roll, and workshop participants at George Washington University and the University of Southern California. Also, thanks to Adrea Korthase and Sheldon Spotted Elk, my Spelling Bee comrades, who motivated me throughout the writing of this Article. Finally, my deepest appreciation to Yale Law Journal editors Ashlee Fox and Meghanlata Gupta for their brilliance and patience.

Introduction

Simon Otto,1 a prominent Anishinaabe storyteller and artist, once told the aadizookaan, or sacred story, of a tiny worm who went through three phases of life.2 In the first phase, they were a tiny, bald worm who lived underground. They were sad they could not see the world above ground. Nanaboozhoo, the Anishinaabe trickster god, advised the little worm to eat as much as they could and settle in for a long nap. The worm did so and awoke, all fuzzy, covered in brown and black fur. The fuzzy worm climbed to the surface to see the sun. Nanaboozhoo was there and called the worm Mosay, or caterpillar. Eventually, Mosay became sad because they could not climb the trees. Nanaboozhoo again advised Mosay to eat as much as they could, but this time a sticky string would come from Mosay’s mouth. Nanaboozhoo told Mosay to find a safe place and wind the string around their body. Mosay did this and fell asleep. When Mosay awoke, they were surprised to find more changes, most notably two thin filaments on their back. The wind blew on Mosay, who dramatically flew into the air, lifted by the new wings. Nanaboozhoo was there and named them Mamengwaa, butterfly.

Growth and development are difficult. Changes come slowly and in stages. American Indian tribal nations are working through those stages. Even though tribal nations predate the arrival of the United States and all the other European colonizing nations, modern-day tribal nations are growing and developing anew. This Article describes a part of that story.

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In the long history of tribal governance inside the borders of the United States, tribal courts are very much an afterthought. Since the Framing, Congress and the U.S. Supreme Court set the broad parameters of tribal powers and the role of state and federal governments. While federal policies eroded traditional tribal government until the late twentieth century, the Federal Bureau of Indian Affairs managed the daily lives of reservation residents. As Indian reservations shrank, and as non-Indians moved in greater numbers into Indian country beginning in the late nineteenth century, state and local governments assumed greater control as well. In the last half-century or so, federal policies have favored tribal self-determination. With all this government, to say that Indian-country governance is complicated and confusing is to say nothing new. But until recent years, tribal judiciaries have left little more than an imperceptible imprint on this history.

The reasons for the limited impact of tribal judiciaries are varied, but they are likely rooted in path dependence. Path dependence is simply reliance on the easiest, most convenient practice.3 Tribal law usually does not arise in a vacuum; it is often borrowed or adapted from state and federal law.4 Tribal court systems are professionalized, with most judges and practitioners trained in understanding and applying state and federal law.5 Tribal elected officials also have the ability to restrict the power of tribal judges, whether by limiting tribal-court jurisdiction or by strengthening the sovereign immunity of tribal governments. Some tribal codes require tribal judges to follow federal law, which can limit tribal powers.6 In these conditions, the simplest path is to follow established law—law that is, unfortunately, the law of the United States. And so, path dependence buries tribal customary law.7

Moreover, legal scholarship on tribal sovereignty and tribal justice systems (including my own8) usually focuses on limitations or restrictions on tribal nations, notably on tribal powers over nonmembers.9 Contemporary tribal governance is the practical manifestation of an Indigenous resurgence that was never supposed to happen in the wake of the “[v]anishing Indian.”10 As Leanne Betasamosake Simpson and Edna Manitowabi have theorized in other contexts, the narratives of tribe-versus-nonmember disputes are part of the “language” that legal scholars, judges, and practitioners “can understand.”11 These subjects are therefore privileged in the scholarship and in the courts. To borrow Aimée Craft’s phrasing, privileging scholarship about tribal/colonizer conflicts unintentionally but effectively freezes tribal nations in the colonizer’s shadow.12 To be sure, these conflicts are important to Indian country, but these matters often are mere sideshows to the real action—how tribal courts act in tribal-governance cases outside the gaze of most observers. What goes on inside Indian country is often a black box, with tribal laws and court decisions often going unpublished or excluded from mainstream legal-research avenues.13 In important respects, tribal justice systems are venues where true justice matters more than it does in many state and federal courts.14 Because tribal governments care about matters such as income inequality, over- and under-criminalization, and individual human rights, and because they might struggle to advance those principles through legal doctrines imported from state and federal law, tribal self-government rooted in Indigenous philosophies will, someday soon, directly compete with colonizing nations’ governance models, where “justice” is too often irrelevant.

This Article brings to light the nascent resurgence of Indigenous philosophies in tribal justice systems.15 First, this Article introduces the concept of judicial regulation into the literature about tribal justice systems and the governance of Indian country.16 By “judicial regulation” of governance, I mean court rulings that enhance or restrict the powers and jurisdiction of governments, much like how scholars have used the phrase to assess the U.S. Supreme Court as a regulator of voting rights and gerrymandering,17 federal agency powers,18 or access to the courts in commercial-law disputes.19 I do not mean court procedure and lawyer discipline, areas in which judicial regulation plainly is authorized.20 I do not mean the regulation of tribal powers by the U.S. Supreme Court, which the late and dearly missed Alex Tallchief Skibine labeled “judicial supremacy.”21 Rather, I mean tribal judicial decisions impacting tribal governance through the regulation of tribal government itself. Tribal-court decisions applying enhanced equitable or procedural defenses to persons targeted for disenrollment,22 for example, can impose greater substantive and procedural obligations on tribal nations before they act to deny persons citizenship, an individual right that many consider fundamental.23

Second, this Article describes and justifies the application of Indigenous philosophies when tribal courts do engage in judicial regulation of government. Well-worn limits on state and federal courts’ powers to regulate government derive from the common-law principles of colonizing nations.24 None of these traditions need apply in Indian country. For example, in finding that the Indian Civil Rights Act25 bars federal courts from hearing civil suits, the Supreme Court in Santa Clara Pueblo v. Martinez26 gave tribal lawmakers and judiciaries room to incorporate tribal customs and traditions into civil-rights claims arising from the Due Process Clause or Equal Protection Clause. To date, relatively few tribal political bodies have done so,27 but that is changing.

This Article initially will survey the history of tribal courts, explaining the reasons behind their relatively minimal impact on Indian-country governance and drawing on the work of legal scholar and practitioner Robert Odawi Porter. It will then turn to the monumental changes in tribal judiciaries and in tribal legal practice during the last few decades, discussing several recent tribal-court decisions that could signal a future where tribal courts play a far greater role in regulating governance through the application of customary law. This discussion will build on the work of legal scholar Wenona T. Singel. Finally, the Article offers preliminary views on whether introducing robust tribal judicial regulation to the already-crowded field of Indian-country governance is normatively desirable. The short answer? Yes. Many of the intractable political disputes that plague tribal governance can be traced to tribal governments’ reliance on state and federal legal principles that are deeply flawed and have limited value in Indigenous contexts. Tribal judges and scholars should acknowledge and embrace an Indigenous canon of construction of tribal laws by tribal judiciaries that limits the impact of the ongoing project of colonization on tribal nations.