When Elizabeth Hidalgo Reese ’16 teaches tribal law at Stanford University, she sometimes feels “really depressed.”
Her malaise, Reese told the crowd during a daylong Indian Law Symposium at Harvard Law School last week, is partly attributable to the history of federal Indian law and the fact that many students and others have opted not to pursue Indian law advocacy because they consider working within the current legal framework a capitulation.
“One of the ways to think about it is that federal Indian law is basically, by and large, the law of conquest,” said Reese, an assistant professor of law and former White House senior policy advisor for native affairs who was raised as a member of the Pueblo of Nambé tribe just north of Santa Fe, New Mexico. “This is all of the federal law that has been made to justify conquest and to set the rules of the road for what this conquest is going to look like, what powers these conquered domestic dependent nations are going to have, what they are not, what responsibilities and powers states versus the federal government will have with those nations, [and] what rights their people will have.”
“Working within that system,” Reese added, “already feels like a concession that a lot of people don’t want to make.”
Reese delivered her comments during “De-Othering Indian Law: Indigenous Topics as Canon Legal Doctrine.” The conference, organized by the school’s Native American Law Students Association, covered topics including federal Indian law and indigenous rights, the importance of indigenous knowledge to criminal justice, and the need to better integrate indigenous law and history into legal education featuring analysis and perspectives from global Indigenous legal experts including Gough Whitlam and Malcolm Fraser Visiting Professor of Australian Studies Megan Davis (Cobble Cobble Australian Aboriginal); Matthew L.M. Fletcher, Harry Burns Hutchins Collegiate Professor of Law at Michigan and former Oneida Indian Nation Visiting Professor at Harvard; (Member of the Grand Traverse Band tribe in Michigan); and Amelia Kendall LL.M. ’25 (Te Rarawa Māori). U.S. District Court Judge Sunshine S. Sykes, ASU Law School Dean Stacy Leeds, and Navajo Nation Chief Justice JoAnn Jayne also delivered conference keynote remarks.
In her question-and-answer session, “Indian Law as Central to U.S. Constitutional Law,” Reese detailed the inherent concerns with Indian federal law, noting that they stem from the way Native American tribes are mentioned in the Constitution, and a legal framework based on that limited representation that has given the U.S. Supreme Court broad authority.
The Indian Commerce Clause and other structural parts of the Constitution have been interpreted as giving Congress “a very, very broad set of powers in their ability to make laws that govern both the relationship of the Indian tribes in the United States, but then also, ultimately, the rights and sovereignty of tribes themselves,” said Reese. Then, beginning in the 1970s, the court began to argue it was “just interpreting implicitly what we think Congress has done in making a bunch of laws about Indians over the course of the last couple of hundred years,” she added, “setting out their own sort of broad tests, [or] implicit divestiture, for under which circumstances tribes have implicitly lost their power of self-governance.”
Reese called the practice a “massive power grab by the federal judiciary.”
Unsurprisingly, the doctrine has made its mark. Reese likened the current state of sovereignty in tribal lands to Swiss cheese, describing what used to be a solid jurisdictional block as one now filled with holes arising from cases in which the court challenged tribal sovereignty and Congress passed laws that did the same. Such a patchwork system of jurisdiction poses a problem for tribal nations as they try to govern, or even simply to keep the peace, said Reese.
“How are you going to have law and order when everything has gotten just so confusing that you … pretty much need a law degree to understand and enforce public safety on the ground?”
Reese sees more trouble ahead. While there are no current cases involving Indian law before the high court, she worries that many critics will continue to push for justices to take up the question of whether or not the federal Indian Child Welfare Act violates the Constitution’s equal protection clause. The court sidestepped the issue two years ago in Haaland v. Brackeen, ruling that Congress had authority under Article I of the Constitution to enact the welfare act but that the plaintiffs lacked standing to raise the equal protection question.
Those pushing the “long-running challenge” involving the 14th Amendment’s equal protection clause argue that systems that recognize tribes as political entities and offer their people a different political status should be illegal because such classifications are in fact “race-based,” said Reiss, who strongly disagrees with that contention.
If Indian and tribal citizenship is suddenly a “purely racial category, then every single law that has to do with Indians or tribes, and maybe even the existence of tribes at all is then something that’s subject to strict scrutiny and a new court challenge and a new attempt to sort of justify this piece of federal law as surviving strict scrutiny, and that would be incredibly, incredibly catastrophic and chaotic.”
But Reese isn’t giving up hope, arguing that better education, congressional representation, and scholarship are important ways forward. At Stanford, as a scholar of American Indian tribal law, federal Indian law, and constitutional law, she devotes much of her research and teaching to tribal law, tribal constitutions, and the structure of self-government, she said, in part because it’s “wildly understudied and underappreciated” in academia, and in part because of the way tribes have been disparaged in federal and Supreme Court rulings for the past century.
Reese called the court’s earlier decisions “blatantly racist,” adding that discriminatory language still exists “in the lines of Supreme Court opinions that are talking about tribes and tribal courts,” and whether or not such courts can treat people fairly. “You can just hear all of this undermining and discrimination … all of this colonial history coming through those pages.”
Like many of the day’s panelists, Reese stressed the importance of creating more law classes on indigenous law and a broader approach to Indian law education. Increasingly, lawyers and law students “are understanding that tribes are one of the sovereigns that are in this country, just like states, just like the federal government, and that it is part of our responsibility to be fully educated lawyers to learn about what that means, to learn about what tribes are as sovereigns. And once folks really understand that, I think it opens the door to a huge wealth of possibilities.”
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