The Indigenous Peoples’ Journal of Law, Culture & Resistance

This paper looks briefly at the complex history of Native people in the United States to show how First Amendment rights do not apply to them.Then reviews how tribes have used their unique political status to self-govern federal reservation lands and tribal members, how tribal members face challenges when using what they believe to be First Amendment rights, and the responses by tribal councils and leaders.Because First Amendment rights are not applicable, “many free speech claims heard in tribal courts” are settled applying “federal law as persuasive authority to decide” cases.3 If tribes do not want U.S.courts’ precedent infringing upon tribal sovereignty, especially when constitutional protections are not inherent for tribal members on a reservation, tribes may want to review and possibly amend their tribal constitutions to reflect their customs and values unique to their tribe, not the United States; considering there are valid reasons tribes would want to limit or restrict speech on the reservation.Finally, rather than allowing the First Amendment to fill constitutional gaps in tribal courts, this paper argues that tribes should affirmatively define speech protections and limitations through constitutionally grounded provisions rooted in tribal customs and values.This approach preserves sovereignty, reduces reliance on federal precedent, and equips tribal communities to address modern challenges on their own terms.

In re Contested Case Hearing Re Conservation Dist. United States Application (CDUA) HA-3568 for the Thirty Meter Telescope at the Mauna Kea Sci. Reserve, a case decided in 2018 by the Hawaiʻi Supreme Court, found lands set aside in public trust for “native Hawaiians and the general public” to be lands set aside in trust for the people. Indigenous lands were taken from native Hawaiians, again, but this time, arguably, with judicial protection grounded in interpreted language of the Hawaiʻi Constitution.

Ojibwe tribes in Wisconsin maintain a successful system of tribal law in the harvest and management of walleye, a species of considerable cultural importance. By doing so, they advance a right they had so feverishly protected in 19th-century treaties with the United States—the right to fish outside of reservation boundaries. Notwithstanding the deepest fears of the raucous protesters at 1980s northern Wisconsin boat landings, tribal overfishing and depletion of the walleye resource remain but a myth. Ogaa are safe. The Ojibwe people ensure it.

The lives of Indigenous women3 have been disproportionately impacted by the ongoing effects of colonization, and especially, of settler-colonial family structures that dismantle important family support networks for Indigenous women. An egregious and controversial example of this experience is the removal of Indigenous children. The removals serve to sever Tribal connections, and create trauma for Indigenous mothers, further marginalizing Indigenous women.

 This thesis—focused on the impact removing Indigenous babies has on Indigenous mothers in a comparative, international Indigenous context—offers an opportunity to recognize removing Indigenous children as part of a wider gender issue for Indigenous women indicative of settler colonialism. This paper transposes the narrative from the effect removing children has on children, to the effect it has on mothers. Given the mental health effect it has on mothers, this paper argues ways to change legal systems to mitigate the impact. The aim for this thesis is to contribute to the abolition of child welfare systems as we know them.

In a secular society deeply rooted in Protestantism, such as the twenty-first-century United States, the idea of religious law often conjures up two images: (1) the Protestant Reformation and the successive Puritan flight to the New World to avoid the Church of England’s domination as the official religion of the state; or (2) the much more recent fears of Islamic Sharia law in the popular culture which led the voters of Oklahoma to pass a ban on “Sharia law” in 2010. However, the formal religious law of the two Apostolic Churches, the Roman Catholic Church and the Eastern Orthodox Churches also played an influential role in shaping the U.S. and the Americas into what they are today.It is particularly crucial to consider the impact of religious law on Indigenous people, who were and remain some of the last significant populations of unevangelized pagans and other non-Christian religious practitioners today. 

The earliest interactions between American Indians and Alaska Natives in the Americas and the laws of colonialist powers often came not in the secular courts of Spain, England, France, and Russia, but through the religious laws of the Catholic Church and Eastern Orthodox Churches. These churches first interacted with American Indians and Alaska Natives during the churches’ missions when the settlers, such as the Spanish conquistadors and Russian fur traders, also arrived in the Americas. The Catholic Church weighed in on the legal status of American Indians through papal bulls such as Inter Caetera issued by Pope Alexander VI in 1493 and Sublimis Deus by Pope Paul III in 1537.These papal bulls, along with centuries-old ecclesiastical writings from the Holy See concerning pagans, dictated the churches’ relationships with American Indians in the New World until the Second Vatican Council and recent Synod of Bishops for the Pan-Amazon region.

The other Apostolic Church in the New World—the Eastern Orthodox Church under the autocephalous Russian Orthodox Church—also applied the unwritten church law of the Orthodox Church for the legal status of the Alaskan Natives its adherents encountered in the 18th century. Despite both churches sharing the first seven ecumenical councils from before the Great Schism of 1054, the legal status of people from the Americas had meaningful differences that reflected not only the dogmatic development in the Catholic Church during the Middle Ages but also the relatively recent pagan history of the Russian Empire originating in the predecessor state of Kievan Rus. The Russian OrthodoxChurch and Tsar inherited their legacy from the entwined religious and secular law of the Eastern Roman Empire. The latter approach of cultural harmonization under the Orthodox canon law allowed for the Orthodoxy of the Alaska Natives to become something truly their own. This approach won over assimilation in the canon law of the Catholic Church, as can be seen by the recent Synod of Bishops for the Pan-Amazon region, who suggested a major change for the canon law status of South American Indian Catholic practices along with other church reforms originating in the aftermath of Vatican II.

For centuries, Federal Indian policy has diminished tribal nations’ capacity to govern and weakened the ancient confederacies and alliances that once bound Indian Country together. Situated in this historical context, this Article asserts that legal sovereignty alone is not sufficient to enable the self-determination of Indigenous peoples. When the capacity of tribal nations is diminished relative to local, state, and federal power, traditions of Indigenous confederalism and coalition-building offer a solution for tribes to facilitate mutual sovereign capacity-building by reviving diplomatic networks of reciprocity and cooperation. This Article presents case studies that capture the successes of modern intertribal confederalism and coalition-building in economic, cultural, and legal or political contexts to demonstrate how tribal governments can benefit from engaging in further cooperation with neighboring tribes and those tribes with overlapping interests.