The Other American Law.

AuthorReese, Elizabeth A.

Table of Contents Introduction I. Contemporary Tribal Governance A. The Scope of Tribal-Government Powers B. The Contemporary Practice of Tribal Governance II. The Marginalization of Tribal Law A. Delegitimizing Tribal Law B. Marginalization Through "Indian Law" 1. Federal Indian law's domination 2. Bleed-over "exceptionalism" from federal Indian law 3. The deceptive acceptance of federal Indian law III. American Public Law Insights from American Tribal Law A. The VAWA Tribes' Constitutional-Rights Reinvention 1. Federally imposed opportunities to interpret the Constitution 2. The VAWA tribes' creative jury-pool "community" definition 3. Jury residency requirements in segregated America B. Separation-of-Powers Crisis in the Navajo Nation 1. The creation of a centralized Navajo government 2. The rise and fall of Chairman MacDonald 3. Institutional independence 4. Navajo formalism, functionalism, and Fundamental Law C. Citizen Potawatomi Nation's Radical Redistricting 1. Reforming legislative districts to reach the people 2. Creating United States expatriate voting districts IV. The New Era of American Tribal Law A. The Need to Expand Tribal Law Research Infrastructure B. The Prematurity of an Academic Tribal Law Framework 1. Tribal individuality 2. The familiar best practices of contextualizing and not overclaiming 3. Scholarly humility C. A Federal Indian Law (If We Still Call It That) Informed by Tribal Law Conclusion: The Cost of Invisibility 634 Introduction

Legal scholarship is a subpart of scholarship in general, and one goal of scholarship in general is to improve our knowledge about the world. The larger, non-Indian community simply does not know very much about tribal institutions and law ... [and if anything] may well conjure up negative images of the system of justice found there.

--Philip P. Frickey (1)

In the United States, there is a set of subnational governments through which American citizens exercise representative self-governance. These governments each make and interpret a unique body of American law through their own distinct legal systems. These governments have a set of powers shaped by a complex relationship with the federal government. This Article is about these American governments.

They are not states, local governments, districts, or territories, but something else entirely. These governments are the 574 Indian tribes. American tribal governments experiment with government structures, define rights, adjudicate disputes, develop service programs, and outlaw conduct. They make laws that address everything from the smallest contract disputes to the most important questions of constitutional rights and structure. And it is time we all paid more attention.

Within the United States, there are 574 federally recognized (2) tribal governments (variously called tribes, nations, bands, pueblos, communities, and Native villages). Yet their experiences receive precious little attention. This Article points out the error of excluding tribal law from our mainstream study of American law and legal systems. Tribal governments are federally recognized governments within--and thus part of--the United States system. Tribal laws are passed by American citizens and govern vast swaths of land and millions of Americans. Tribal law is American law, and as such it ought to occupy an equally prominent place alongside federal, state, and local law.

Beyond pointing out the error--and injustice--of this omission, this Article demonstrates that there is much to gain from embracing tribal law. After hundreds of years of contact, violence, treatymaking, and then existence within the legal, cultural, and geographic boundaries of the United States, Indian tribes are now comingled American sovereigns struggling with similar problems and often playing in the same sandbox of legal ideas as the other American governments. And yet the governing work, laws, innovations, successes, failures, and reinventions of tribal governments are rarely studied--if not entirely unknown to many. It is time to end the invisibility of this other American law.

Tribal law's invisibility is all the more inexcusable given how far reaching tribal jurisdiction is within the United States. Indian Country is a large part of the United States. It would, perhaps, surprise many Americans to learn that the Navajo Nation governs an area that is approximately the size of West Virginia (3) and that its courts adjudicate over 50,000 cases every year. (4) At least nineteen other tribes each govern an area larger than Rhode Island, and tribal governments collectively control more land than California. (5) And Native American (6) people are one of the fastest growing populations, growing at almost four times the rate of the general population. (7) We are sorely lacking updated data on Indian people, tribal members, and reservation residents. (8) The U.S. Census Bureau estimates that between 5.7 million (9) and 6.9 million (10) Americans are American Indian or Alaska Native, and nearly 3 million in that group were enrolled members of a federally recognized tribe as of 2013. (11) As of 2017, 1.3 million people lived in Indian Country or on Alaska Native land, including over 628,000 non-Indians. (12) And, as a result of the Supreme Court's recent decision in McGirt v. Oklahoma, that number could more than double with the addition of another 1.8 million Oklahomans, only 10% to 15% of whom are Indian. (13) This is not even counting all the people who live off reservation but are nevertheless impacted by tribal law because they work for or do business with tribes. The Forest County Potawatomi Community in Wisconsin, for example, has only twenty-four non-Indians living on its reservation but employs over 2,200 non-Indians and provides healthcare services in the surrounding community, serving more non-Indians than Indians. (14) Tribal law impacts many Americans.

Tribal governments are just another kind of subnational American government (15)--like states that exist as subnational sovereigns whose powers are limited and shaped by federal law--growing in the federal framework's shadow. (16) Ignoring or siloing the laws and experiences that come from tribal governments presents an incomplete and incorrect picture of America and its laws. (17) If American legal scholars want to understand, learn from, and evaluate American law, we must include all of America's laws.

The 574 federally recognized tribes are governments composed of American citizens who make and enforce law that governs large swaths of the United States, but we don't readily think of them as American governments or their law as American law. There is no widely accepted definition for American law precisely because it is a changing social construct comprising what both laypeople and scholars agree counts as such. (18) A robust accounting of the boundaries of American law is beyond the scope of this piece. Nevertheless, what we consider to be within the boundaries of American law matters because the term undoubtedly communicates an identity and a legitimacy, dividing those laws that are an accepted part of the United States legal system and culture from those that are not. Generally, we think of the rules that come out of the various halls of United States governments as "American law." (19) Tribal law fits that definition. Tribal governments are integrated into the United States system, fly the United States flag, (20) and are subject to federal authority--specifically Congress's plenary power. And yet tribal governments undoubtedly remain outside of our shared conception of American law, largely absent from seminal works on the subject, (21) Restatements, (22) and our law school classrooms. This must be either because laypeople and scholars don't think of tribal governments as American governments or because they don't think of tribal governments at all. America has absorbed these governments through conquest, preserved their right to self-government, and asserted plenary power over them--yet it still treats Indian tribes and their people like outsiders.

The current exclusion of tribes is conspicuous and, indeed, no accident. What I have named the other American law could also be described as the othered American law. The United States has both created its identity and justified its existence in contrast to the Indians it has displaced. The primitive, lawless, or vanishing Indian was a fictitious but politically necessary construct. (23) These old assumptions and portrayals of Indians and their governments have become unseemly with age, looking far more like propaganda than fact. This Article does not argue that we ought to pay attention to tribal law now out of guilt or because of the prior ugliness. Instead, it suggests that this history explains our ignorance and the status quo of excluding tribal governments.

Tribal nations are diverse, and some are very different from other American sovereigns. This, however, does not mean that tribal governments are not now part of the American family of governments or that tribal law does not belong within American law. Rather, it means that our conception of American law is too narrow and needs to grow to fit the work and experience of tribal nations, recognizing the reality that the United States is a union of not just fifty states, five territories, and a federal district, but also 574 tribes.

By situating tribal law as American law, this Article breaks with earlier works of tribal law scholarship accepting tribal law as different and separate from American law. (24) These works treat tribal law more like an international sovereign's law or as a site for comparative insights on American law. (25) Prior works have argued that tribes are underappreciated laboratories for legal innovation and experimentation. (26) While this Article also argues that tribes have much to offer if included in the mainstream, it also suggests that tribes should not need...

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