Last June, the Supreme Court erased “centuries of tradition and practice” in Oklahoma v. Castro-Huerta by finding that states have jurisdiction over crimes committed by non-Native Americans against Native Americans in Indian country, wrote Matthew Fletcher, professor of law at Michigan State University College of Law, who also sits as the chief justice of the Pokagon Band of Potawatomi Indians and the Poarch Band of Creek Indians.
This June, the role of tribal governance is up for debate once more, when the high court will decide what position a tribal court can play when it comes to adoption proceedings and foster care placement under the Indian Child Welfare Act, a federal law enacted in 1978.
“Federal Indian law is a way of deciding as opposed to a bunch of laws that are about Indians,” Fletcher told Prism via video chat in January. It’s this way of evaluating rights and responsibilities that the Supreme Court can either affirm or undermine in its decisions, and a “way of deciding” that goes to the core of many issues of injustice impacting Indigenous peoples, non-Indigenous peoples, and the planet, today.
To hear more about the fundamentals of Indian law, Prism spoke with Fletcher, a member of the Grand Traverse Band of Ottawa and Chippewa Indians, and Rebecca Tsosie, a professor of law and faculty member for the Indigenous Peoples’ Law and Policy Program at the University of Arizona. Tsosie is of Yaqui descent.
This interview has been condensed and edited for length and clarity.
Ray Levy Uyeda: What is tribal law, and who does it govern?
Matthew Fletcher: I describe tribal law as the actual law of Indian tribes. It’s where all the fights are between the federal, state, and tribal governments, and also it’s internal sovereignty.
Rebecca Tsosie: Or, for example, in Arizona, tribal law from all the Indigenous nations that have been here since time immemorial is the overlay that has guided people in their interactions with the land, with the water, and with people coming into the land. It’s very ancient in that way.
But the way that it’s described today by tribal courts is distinctive because the tribal governments themselves are exercising that political sovereignty over their land, and in some cases that could look similar to how the state of Arizona operates. In that way, it’s a kind of political authority.
Levy Uyeda: What is sovereignty, and how has its definition changed over time?
Fletcher: Sovereignty, I suspect, is not really an Indigenous principle. It comes from the notion that there is an all powerful sovereign entity like a king that has an absolute monopoly on violence, over lands, and over the people on those lands, who typically are called subjects. By offering individual rights to people in the U.S. we’ve papered over some of the difficult aspects of that understanding of sovereignty. On one hand, when tribes assert sovereignty, it means tribes are saying that there is a hierarchical group of people and an elite that makes decisions for all others beneath them.
Tsosie: I do agree that the terminology of “sovereignty” is problematic because Anglo-American law and jurisprudence does give that hierarchical meaning that comes out of English tradition.
I tell my students that the term “property,” which also has that Western meaning, along with “sovereignty,” are both modes of discourse. If you think about these terms in the context of a treaty, the treaty is designed to be a contract between sovereigns.
Indigenous nations are recognized as having the sovereignty to engage in a treaty, whereas a state government is a sovereign, but it doesn’t have the same capacity to enter a treaty. Even though there’s a different cultural understanding internally within tribes or the U.S. federal government, it’s a term that denotes the external mode of operation.
Fletcher: What tribes have started to do in earnest in this century is to rethink what sovereignty means as a cultural matter for Indigenous nations. I’m from Michigan; we’re Anishinaabe—Odawa, Potawatomi, and Ojibwe—and the tribes are asserting sovereignty within their statements of politics and law, but they’re doing so from a perspective of Anishinaabe culture. So the laws that tribal governments have passed in the last 10 years or so incorporate principles such as mino-bimaadiziwin, which is an Anishinaabe word that means “living your life in a good way.”
And so the tribes are adopting a quasi Bill of Rights in our communities. In Anishinaabe community there’s something known as the seven grandfather teachings, or the seven grandmother teachings. The principles require us as an Indian people, agents of tribal nations, and as tribal nations to respect things, people, places, objects we don’t even understand, as well as each other, beyond the bare minimum that is often required under American or federal and state law.
Tsosie: I think the modern discourse of human rights law talks about the right of self-determination that Indigenous peoples have as peoples. And if you think of the concept of people having that right, of autonomous governance over their territory, their membership, it does have cultural components.
To me, the cultural construction of sovereignty is very distinctive among Indigenous nations, but it’s equally important to see the political sovereignty—that the Navajo Nation or Cherokee Nation has a treaty with the U.S.
Levy Uyeda: Where do reservations and ceded territories come into play? Can you talk about the relationship between the two?
Fletcher: This entire continent, which some people call Turtle Island, was once owned by the Indigenous peoples of this area. As Professor Tsosie noted, property is important and tied to sovereignty. Tribal nations and individual Indians respected property rights, just in a somewhat different way than is understood under Anglo-American law, and certainly different than under the U.S. Constitution.
When a tribe, or a group of tribal nations like here in Michigan, entered into a treaty with the U.S. in which the tribes agreed to cede territory to the U.S., this is a sovereign-to-sovereign transaction that is somewhat different than just straight-up selling land from one party to another. It’s much more complex than that. What tribes did was turn over initial primary control over territory to the U.S. In exchange, the U.S. sometimes paid cash, the U.S. sometimes agreed to set aside lands within that ceded territory as reservation lands, and sometimes the U.S. agreed to offer other tangible material goods.
Famously, in the 1836 Treaty of Washington that many of the tribes here in Michigan signed, the U.S. agreed to provide materials for fishing in the Great Lakes and in the inland rivers and streams as a means of preserving those fish for the commercial market. We use that treaty years later to assert a right to hunt and fish off our reservation on ceded lands for commercial purposes.
But what the U.S. also agreed to undertake is something called the duty of protection, which is a creature of international customary law that goes back centuries, where a larger sovereign would agree to protect a smaller sovereign. That has morphed over the centuries here in the U.S. to be known as the trust responsibility, which is more of a metaphor than anything.
The trust responsibility requires the U.S. to continue to fulfill an obligation to tribal nations and to the citizens of those tribal nations to protect the land base, to protect culture, to provide education, public health, public safety, and habitat in the ceded territories for treaty hunting, fishing, and gathering to continue for agriculture. There is an unlimited list of obligations the U.S. has toward Indian tribes, and that is critically important when you’re discussing what a reservation is and what ceded territories are.
Tsosie: In terms of Arizona, there are 22 federally recognized tribes that have land holdings in Arizona that are basically reservation lands. The title to the land is split, with the federal government owning the legal title, while the tribe owns the beneficial title. That’s the trust obligation that Professor Fletcher just described, which makes that reservation land distinct from state land.
A lot of the tribes in Arizona don’t have treaties, and therefore the quandary is that the reserved rights of the tribe, that Professor Fletcher described in terms of hunting, fishing, and gathering, are sometimes invisible because of the lack of treaties.
Nonetheless, the customary rights continue. So even on “unceded lands”—because they were never formally ceded—the idea is that those customary rights should remain with the people under the principle of self-determination, which is territory based. Territory could be reservation, it could be ceded land, it could be unceded land; ultimately, it would all be the traditional territory of the Indigenous people.
Levy Uyeda: How do federal law, Indian law, and state law interact? Where are some points of tension between them?
Fletcher: Federal Indian law is a way of deciding as opposed to a bunch of laws that are about Indians. The core of federal Indian law goes to the U.S. Constitution and to the duty of protection, which is what existed all along, even before there was a U.S. So you start with the principle that under the Constitution, only Congress has the power to pass laws in Indian Affairs; state governments do not, and the President does not unless Congress gives them that power. Certainly, the Supreme Court doesn’t have power to make laws except to interpret the law.
Tsosie: The Supreme Court seems quite confused right now on some things that we thought were settled principles in federal Indian law.
Fletcher: For a century and a half, the Supreme Court was very deferential to Congress. During this time, when Congress did something in Indian law it was usually to take something away from tribal governments and Indian people or to harm them in some way. But in the last half century or so Congress has turned around dramatically and embraced tribal self-determination. It’s taken more seriously the duty of protection and the trust responsibility.
It’s starting to pass laws that not only enable tribes to govern themselves and the people in their territories, but to encourage that and actually fund those activities in ways that have been very beneficial to tribal interests. This has happened simultaneously to the Supreme Court deciding that it is no longer going to defer to Congress. In fact, the Supreme Court does not refer to Congress in Indian law whatsoever.
Tsosie: One of the huge tensions with the most recent Supreme Court case that dealt with lands in Tulsa, Oklahoma, is now there’s a conversation about whether or not a state has inherent sovereignty over non-Indians in Indian country, even on reservation lands that are basically under the trust title that we discussed earlier.
But the latest opinions from the Supreme Court are not as clear on the difference between civil and criminal, and therefore are causing a catastrophe in terms of, for example, Indian law preemption, which is a distinctive form of federal preemption.
Fletcher: The conflicts between states and tribal governments are usually created by the Supreme Court. I would say there are two or three areas outside of the criminal justice realm that are ongoing sources of conflict. The first is child welfare. The states pluck Indian kids from reservation homes and off-reservation homes and put them in the foster care system, usually, and in a way that is well known to be racially discriminatory. Tribes are fighting that, and states are objecting to tribes fighting it.
The Supreme Court, in a lot of respects, runs Indian Affairs in the U.S., but Congress can always come back and fix that. Ultimately, there’s three fundamental rules of federal Indian law. Number one is Congress’ power is plenary. Number two is states don’t have any power unless Congress says so. And number three is tribes are sovereigns that have inherent powers within their territories.
If you start with those principles, then you can answer 80% of all Indian law questions.