Project engages federal Indian law to protect tribal self-determination

After the American Indian Sovereignty Project was established last summer, its leaders knew that they would be busy with scholarly engagements in contemporary issues in federal Indian law. But the group, a collaboration between Yale and New York University (NYU), had little idea how quickly they would become immersed in a series of immediate court challenges at the highest level.

In February, the project had one of its most visible moments to date when U.S. Supreme Court Associate Justice Stephen Breyer cited during oral arguments an amicus brief filed by the project’s team in the case Denezpi v. United States.

A joint initiative of Yale’s Faculty of Arts and Sciences (FAS) and the NYU School of Law, the Sovereignty Project brings together scholars, law students, graduate students, and a select number of undergraduates to study, research, and engage American Indian law and policy. The brief cited by Breyer is the second of three the project’s team has written for the high court, and the justice’s reference was an important recognition: It highlighted the impact their work can have in helping to elucidate federal Indian law and policy and in advocating more broadly for Native American tribal sovereignty, according to Ned Blackhawk (Te-Moak Tribe of Western Shoshone Indians of Nevada), the Howard R. Lamar Professor of History and of American Studies at Yale.

He and Maggie Blackhawk (Fond du Lac Band of Lake Superior Ojibwe), professor of law at New York University, co-founded the Sovereignty Project partly with the mission of providing support to Native tribes in legal cases involving Indian Country. The project, he said, also aims “to build an intellectual research community oriented around questions of American Indian legal concern as well as educational awareness about pressing contemporary tribal issues.”

In the Supreme Court case Denezpi v. United States, the defendant, Navajo citizen Merle Denezpi, argues that his assault and battery conviction by a tribal court precluded his subsequent prosecution for a federal-law offense, claiming that federal prosecution violated his Constitutional protection against double jeopardy. In the amicus brief filed by the Sovereignty Project, however, the case is made that the Ute Tribe’s Court of Indian Offenses derives its authority from the sovereign power of the tribe and not the federal government, and thus federal prosecution does not constitute double jeopardy.

The Denezpi case is one of several cases that the Sovereignty Project has so far become involved with as part of its Tracking and Briefing Initiative, one of the Project’s three main components. In this initiative, faculty and students from Yale and NYU track existing court cases within the federal system involving American Indian legal questions and draft briefs for select cases. Their work is done in partnership with the Tribal Supreme Court Project of the Native American Rights Fund (NARF) and the National Congress of American Indians (NCAI), which monitor cases concerning Native communities and coordinate tribal advocacy at the Supreme Court level.

The other components of the Sovereignty Project include the Native American Working Group, an assemblage of academic groups — including the Yale Group for the Study of Native America and NYU’s Native Studies Forum — focused on promoting academic engagement in the field of Native American studies; and the Judicial Education Project, a series of summer workshops that will educate members of the federal judiciary about the complexities and nuances of tribal law to better equip them.

In the six months since the Sovereignty Project was established, it has already been “flooded” with requests from the Tribal Supreme Court Project for assistance on federal court cases, according to Maggie Blackhawk.

“Originally, we thought we would do best to work on cases in the lower courts, which get far less attention and fewer resources, even though cases are made and defined in lower courts before they get to the Supreme Court,” she said. “But, frankly, we had so many requests that we were drawn into these Supreme Court cases and have even had to turn down projects because we haven’t been able to scale up fast enough.”

The Sovereignty Project also has a small permanent staff: Former tribal court judge and Attorney General of the Ho-Chunk Nation of Wisconsin Amanda White Eagle (Ho-Chunk Nation) serves as a clinical fellow; and attorney and former social worker Rebecca Plumage (Nakoda Aaniiih of Fort Belknap) is the research fellow.

More than two dozen graduate and law students from Yale and NYU have joined the project to conduct research on the legal cases and help write the briefs. Some of the Yale students who are taking part are enrolled this semester in Ned Blackhawk’s graduate-level course “Advanced Topics in Federal Indian Law,” which allows them to receive credit for their work.

In addition, law students and faculty members at Stanford, UCLA, and the University of California-Berkeley, among others, have also volunteered to assist with research and writing projects as part of the Tracking and Briefing Project.

The value of the historical record

David Kerry (of Yaqui descent), a first-year Ph.D. student in history, volunteered last semester to do historical research that would help in the drafting of the amicus brief for the Denezpi v. United States case.

“I got involved because I realize how critically important tribal sovereignty is, how important the law is to sovereignty, and how important history is to the law,” said Kerry, who is taking “Advanced Topics in Federal Indian Law” this semester. “This has been an excellent opportunity to contribute in some small way to people who are trying to help tribes who are exercising their rights to self-determination and to make sure those rights are respected by the legal system.”

Kerry dug through historical documents from the Department of the Interior as well as reports about Indian affairs to investigate the genesis of the tribal courts in the 19th century. The documents he encountered helped to show that tribal courts were established to be fully independent from federal control.

The project also has filed an amicus brief in the pending case Penobscot v. Frey, which — if the Supreme Court decides to hear the case — would allow the court to reconsider a lower court’s decision forcing the Penobscot Nation to cede sovereignty over fishing rights in the Main Stem of the Penobscot River. This case calls into question the issue of tribal sovereignty with respect to prior treaties and substitute-treaty agreements made with governmental bodies.

Sovereignty Project faculty and students have also filed a brief for a Supreme Court case called Oklahoma v. Castro-Huerta, which will consider whether the state has the authority to prosecute non-Indians who commit crimes against Indians on tribal lands. In addition, it will contribute next term to a case that the Supreme Court agreed to hear, Brackeen v. Bernhart, to rule on the Constitutionality of the Indian Child Welfare Act. The 41-year-old statute protects the rights of tribal nations in child welfare matters concerning their own citizens and in protecting children from being separated from their communities for foster care, adoption, or other purposes.

Ethan Fairbanks (Red Lake Ojibwe), a second-year Yale Law School student who has done historical research pertinent to the Castro-Huerta and Denezpi cases, said their outcomes in the court will have far-reaching impacts on tribal nations.

“I’m never excited to see the court getting involved in Indian Country,” said Fairbanks. “But I have hope that by informing the court and judges — and also the parties and the lawyers to the parties — about the history and theory of Indian law, they’ll come to better appreciate and understand it, and that Indian tribes will fare better in both the Supreme Court and the lower courts, where they haven’t had a ton of luck in the last 15 or 20 years.”

The fact that many legal decisions impacting Indian County are being made by judges who lack knowledge of tribal law and policy is a reason behind the Sovereignty Project’s Judicial Education Project, noted Ned Blackhawk.

“A lot of people are surprised when I tell them that individual Indian tribes act as nations,” he said. “They think that there are only certain sets of sovereigns in the United States: the federal, state, and local governments. But there are, in fact, tribal governments that sit outside of the jurisdiction of state and local governments and are only partly within the jurisdiction of the federal government. Tribes exert jurisdiction over their own borders, over their own members, and over non-Indians who enter their borders at various times. Teaching judges and law students about it is, in my opinion, an essential responsibility.”

This summer, the Project will collaborate with the Institute for Constitutional Studies to host the Institute’s annual summer workshop for faculty and graduate students, which will examine the centrality of Native peoples to the U.S. Constitution and Constitutional law. In future years, summer workshops will be geared toward educating legal professionals on topics related to tribal law and sovereignty.

“We have also started to reach out at both Yale and NYU to faculty and graduate students to try to build a greater network of folks who are interested in Native studies, Indian law and policy, and American colonialism — and in incorporating those topics into their fields of inquiry,” Maggie Blackhawk said. “We can partner with them on existing projects or offer support and foundational materials.”

Meanwhile, the scholars and the students involved with the project say they are feeling apprehensive — yet hopeful — about the Supreme Court decisions expected to come later this year.

“I’m definitely feeling nervous about how the Supreme Court will rule on the Denezpi case, particularly with the makeup of this court,” said Kerry. “But I also feel very lucky to have been involved in a case for which we were able to contribute a very strong and sound argument.

“Just having this community of people who are passionate about working on both the law and in Native history and studies, and who really care about these issues, is really heartening.”