The Role of the Judiciary in nation building: Lessons from rebuilding Native Nations in
the United States of America.
Abstract
A well-functioning judiciary plays a critical role in nation building. Besides advancing a
Nation’s sovereignty, it promotes constitutionalism and enhances adherence to the rule of law
while ensuring maintenance of law and order. In this way, the Judiciary creates a better
environment for economic growth. A competent judiciary therefore expands the possibilities
for a nation’s future. To advance this argument, these paper looks at devolution and
marginalized communities’ rights in the context of Native Nation building in USA,
highlighting the role that the US judiciary, including Native Nations courts, play in the
development of Native Nations.
The paper is divided into three parts. Part one offers an overview of the US legal system and
the position of Native Nations court in the system. Part two analyzes the concept of Nation
building and the role of US Supreme court and Native Nations courts in building Native
Nations and part three offers a conclusion with key questions that Kenya might need to
ponder.
The paper has immense research implications in the context of devolution and marginalized
communities’ rights in Kenya. However, the level of governance, stability and capacity might
be a limitation, though the historical context between Kenya and US is almost similar.
Introduction
The emergent legal and political discourse in Kenya with respect to devolution is posing
significant challenges to the State’s existing institutions and in particular the administration
of justice by the courts. The Constitution of Kenya, (2010) creates a devolved system of
Government with the primary objective of accelerating Nation building through devolving
power and resources to the local level. Devolution has ushered a period of heightened
expectations not only at the County government level but also among historically
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The Judiciary in Nation Building 2
marginalized communities who are increasingly looking upon the courts to address issues of
historical injustices as basis for their development as part of Kenya. Court decisions on these
issues will surely be complex and precedent setting. The decisions will establish strong
foundations for nation building of which good governance is a key pillar. Inclusiveness and
the recognition and respect for diversity are key ingredients for good governance.
Arguably, Kenyan courts are encouragingly taking the bull by the horns. For example, in a
recent precedent setting decision,1 the Environment and Land Court at Nairobi recognized a
community as both Indigenous and a Minority on the basis of its unique culture that has been
historically marginalized. By this decision, the Court established a framework for the
actualization of Article 56 and other provisions of the Constitution that relate to similarly
situated communities in the Country. To accelerate inclusive nation building, Courts should
strive to secure the land rights especially for marginalized communities and strengthen the
notions of internal self-determination within Kenya, in line with the developing norm and
jurisprudence on the right to self-determination under International Law.
These recent developments in Kenya provide a timely opportunity to compare similar
doctrinal developments in other jurisdictions, specifically the United States of America,
through the lens of devolution focusing on Native tribes and the role of courts in their
development.
In the early 70s, for example, the Citizen Potawatomi Nation2 of Oklahoma material assets
consisted of only 2½ acres of trust land, $550 in the bank and an old trailer that served as the
tribal headquarters. 40 years later, the tribe’s assets include a bank, a golf course, casinos,
restaurants, a large discount food retail store, a tribal farm, a radio station, and more than
4,000 acres of land purchased by the tribe. The tribe channels its resources into services for
its citizens – from health care to education and child development support and an award-
winning small business development program. The tribe’s economic impact on the City of
Shawnee, Oklahoma hit $522 million in 2012. The tribe takes responsibility for 7 out of
every 10 jobs created in the City. Since 2005, the tribe has provided 25 000 scholarships,
invested $24.5 million in water development and $10.6 million in public safety including
police services and storm shelters among other successes.
Besides leadership, the success of the Citizen Potawatomi Nation is attributed to a strong
judiciary, which includes a trial and appeals courts. The tribes judiciary functions at a level of
sufficiently high quality such that it has attracted tens of millions of dollars of capital to the
Nation’s business enterprises and induced a neighboring non-Indian township to opt into the
Potawatomi system and out of the State of Oklahoma system for its municipal court services
(Jorgensen, 2007).
The Citizen Potawatomi story is not the only such story. Research by the Harvard Project on
American Indian Economic Development (2008)3 and the Native Nations Institute4 shows
that when institutions, especially the courts, implement a nation’s own decisions on what
development approaches to take, the Nations consistently out-perform external decision
makers on matters as diverse as natural resource management, education, health and overall
economic development. In a nutshell, the tribes are building their Nations (Kalt, 2014).
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The Judiciary in Nation Building 3
This paper is therefore a story about Native Americans Courts and their role in (re)building
strong Native Nations in the United States. The paper will begin by exploring the American
judicial system and the place of Native Nations Courts. It will then explore the role of the
courts in Native Nation building and conclude with a set of questions that Kenya may reflect
on in its nation building efforts.
Overview of the American Judicial System
On 17th September, 1787 the United States of America adopted their Constitution as the
supreme law of the land.5 The Constitution established a two-tier system of government that
comprises the Federal (national) and State governments.6 However, the Constitution also
recognized the special place of Native American’s and recognized them as sovereign nations
within the United States,7thus introducing a separate governance structure for Native
Americans.
Each of the three levels government has its own governmental structures, legal codes, and
judiciary. Besides the US Constitution, each of the 50 States and federally recognized Indian
tribes8 operate under the State’s or Tribe’s own Constitution and laws.9 Currently, there are
566 federally recognized Indian Nations (variously called tribes, nations, bands, pueblos,
communities and native villages) in the United States. Approximately 229 of these ethnically,
culturally and linguistically diverse nations are located in Alaska; the rest are located in 33
states.10
Tribal self-governments serve respective Indian Nations as distinct groups of peoples11 and
provide basic infrastructure including roads, bridges, and public buildings and a broad range
of governmental services on tribal lands,12 including education, environmental protection,
law enforcement, and judicial systems.13
Native Nations Courts
There are about 300 tribal courts and 23 Courts of Federal Regulations (Courts of Indian
Offences)14 in the United States. These are formalized systems established by American
Indian and Alaska Native tribes for resolving criminal and other legal matters within their
tribes. Tribal courts play a critical role in Native Nation building. But before exploring this
role, it is important first to understand the foundations of these tribal courts in the US justice
system.
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business and domestic relations. Tribal sovereignty further recognizes the existence of a
government-to-government relationship between Indian tribes and the federal government.16
Tribal sovereignty is based on three fundamentals (i) the interactions between Indian tribes
and the Colonial power (ii) legislations by the US Congress, but more importantly, (iii)
decisions of the US Supreme Court.
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Some of these legislations include the Indian Appropriations Act, 1871 that ended
recognition of additional Native American tribes or independent nations, and prohibited
additional treaties. The Major Crimes Act, 1885 that made seven “major” crimes committed
on Indian reservations punishable under federal law.23 The General Allotment (Dawes) Act,
1887 that allotted lands within certain Indian reservations to Indians and allowed non-Indians
to homestead on un-allotted or “surplus” lots.24 The Indian Reorganization Act, 1934 that
allowed Indian nations to govern themselves on the basis of a catalogue of constitutional
documents that enumerated powers for tribes and for tribal councils.25 Public Law 280, 1953
that gave some states extensive jurisdiction over the criminal and civil controversies
involving Indians on Indian lands though many especially Indians, continue to believe the
law unfair because it imposed a system of laws on tribal nations without their approval.26
And more recently, Congress extended the Violent Crime Control and Law Enforcement Act
of 199427 to give tribal courts authority to try offenses under the Act committed on Indian
lands by both Indians and non-Indians.28 But it is the US Supreme Court that has and
continues to have a greater impact on tribal sovereignty.
US Supreme Court and Tribal Sovereignty
Since 1823, the US supreme has struggled to define the issue of tribal sovereignty in the
United States. Gretches et al (1998), state that the Supreme Court has shifted between two
competing theories; that tribes have inherent powers of sovereignty that predate the
"discovery" of America and that tribes have only those attributes of sovereignty that
Congress gives them. Whatever theory the Court has relied on in a given case, it has
determined the powers the tribes have and what protections they receive against Federal and
State government encroachment (Williams, 2014).
The doctrinal basis for defining tribal sovereignty was set by the Supreme Court in the
Marshal trilogy29 the first of which was Johnson v M’Intosh, 1823.30 Therein the Court held
that by virtue of the doctrine of discovery31 native tribes only had possession but not title to
the lands on which they live.
In Cherokee Nation v. Georgia, 1831,32 the Court held that tribes had unquestionable rights
to the lands they occupy until they voluntarily extinguished that right to the government.
However, tribes could not be denominated as foreign nations but as “domestic dependent
nations”33 within the boundaries of the United States, thus establishing a federal trust
relationship between the federal government and Indian tribes.34
Worcester v. Georgia, 183235 held that treaties and laws of the United States contemplate the
Indian Territory as completely separated from that of the States. The laws of the State
(Georgia) therefore cannot have force in Indian Territory as intercourse between the United
States and tribes is vested in the Federal36 government of the United States.
Indian sovereignty is therefore inherent and is not extinguished by US citizenship (Iron Crow
v. Ogala Sioux Tribe, 1956).37 It can only be extinguished through a treaty or Congressional
action (U.S. v Nice, 191638) as congress retains plenary authority over Indians (Lone Wolf v.
Hitchcock, 1903).39 Plenary power over Indian affairs is excised solely by Congress and not
the States (Washington v. Confederated Tribes of Colville Indian Reservation, (1980))40 and
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The Judiciary in Nation Building 6
is based on the federal-trust relationship through which the federal government has a duty to
protect the tribes.
Treaties, legislative provisions and Supreme Court decisions are therefore the foundations of
for tribal sovereignty. But despite inherent tribal sovereignty, members of native tribes are
also citizens of the United States under among others, the Indian Citizenship Act, 1924.41
Evolution of Tribal Courts
Prior to European arrival, Indian nations functioned under their respective and inherent
principles of sovereignty. They governed, policed, regulated land use, and resolved internal
conflicts in accordance with their norms, values, and customs that had existed since time
immemorial. They exerted complete and absolute jurisdiction over criminal matters occurring
within their lands. With the expansion of the European colonizers into their lands, however,
Indians confronted an expansionistic-minded people who typically not only loathed cultural
diversity but also sought to force Indians to conform to European laws, customs, and beliefs
(Lujan, & Adams, 2004).
To regulate law and order among "savage Indian" tribes, the Colonial power felt the need for
some formal structures through which Indians could be civilized and assimilated as law-
abiding US citizens (Pommersheim, 1988). This resulted in the establishment of Courts of
Indian offenses in 1886.42 However, when tribal sovereignty was reestablished through Acts
of Congress and court decisions, tribes began establishing their own courts. But it wasn’t
until the Indian Reorganization Act (1934) period that tribal authority, rather than United
States authority, gave the tribal courts legitimacy among tribes (Pommersheim, 1988). The
Act allowed Indians to set up their own justice codes and operate court systems that will
enforce tribal laws of Indian tribes.43
Organization of Native Nations Courts
Tribal justice systems are diverse in concept and character. While some are extensively
elaborate, others are just beginning to develop a ‘modern’ judicial system within the context,
conditions, and circumstances of their individual nations.44 Some tribes prefer the adversarial
process, while others utilize traditional dispute resolution mechanisms such as peacemaking,
elders' councils, and sentencing circles. Some tribes utilize both systems. Many tribal courts
apply large bodies of written or positive law but others apply customs and traditions to
address controversy and settle disputes. The Bureau of Indian Affairs (BIA)45 also manages a
small number of Code of Federal Regulations (CFR) courts.
Tribal legal practitioners also possess various qualifications, levels and diversity of
experience. Judges may be trained lawyers or experienced tribal members well versed with a
particular tribe’s customs and traditions. Some tribal courts utilize both. Appointment of
judges is by the tribes governing body either through elections or appointment. Some tribes
have bar exams that enable interested lawyers to practice law in the tribe (Pommersheim,
1988).
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The Judiciary in Nation Building 7
Part Two
Role of Native Nation Courts in Native Nation Building
What is Nation Building?
The word "nation" means different things to different people. To some, it is a group or race of
people who share history, traditions, and culture, sometimes religion, and usually language.
At the United Nations, the term "nation" is usually used in reference to the State. Native
nationhood is associated primarily with the social construction of race or ethnicity and to an
extent civic nationhood based on common identity and loyalty to a set of political ideas and
institutions, and the linkage to tribal citizenship and to membership (Williams, 2014).
“Native Nation-building” refers to the process by which Native nations put in place the
governing processes and frameworks that are required for effective self-governance and self-
determined community and economic development.56 To the Native Nations Institute, nation
building refers to the efforts of Native Nations to increase their capacities for self-rule and for
self-determined, sustainable community and economic development (NNI, 2013). Nation
building involves developing the Nations capacity to make timely, strategically informed
decisions about the Nation’s affairs and to implement those decisions.57
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The Judiciary in Nation Building 8
The Harvard project on American Indian development (2008) has observed two approaches
to Indian development; the standard approach and the nation building approach.
The Standard Approach to Nation Building
Since 1800's the federal government has unsuccessfully tried different assimilation and
allotment strategies for the economic development of Indian tribes. The policy failures
necessitated a study on The Problem of Indian Administration (Meriam , 1928) to investigate
the conditions of American Indians and provide recommendations for addressing the
challenges faced by Indians. The crosscutting recommendations of the Meriam report
resulted in the enactment of the Indian Reorganization Act, 1934 that gave Indians greater
control of their destiny through self-government and management of resources found on their
lands. The Bureau of Indian Affairs developed a model constitution and charters, which
tribes could adopt and utilize in the exercise of self-government. However, power over Indian
affairs was still concentrated on the US Secretary of Interior and the model constitution and
charters did not meet Native tribes expectations as they lacked the cultural match necessary
for addressing economic stagnation, environmental degradation, land loss, health and
education disparities that Indian tribes suffered (Melissa Tatum, 2014).
Cornell and Kalt (2007), call this the standard approach to Indian economic development.
Under the standard approach, decision-making is short term and non-strategic. Development
is treated primarily as an economic problem and persons or organizations outside the Native
Nation set the economic agenda. Under the approach, indigenous cultures and rights are
viewed as obstacles to development and elected leaders serve primarily as distributors of
resources. This often resulted in failed enterprises, the politics of spoils and tribal economies
that highly depended on federal dollars and decision-making. It also resulted in massive brain
drain where educated and highly skilled tribal members sort employment in far off places as
conditions in the tribal territories could not support them. This contributed to an impression
of incompetence and chaos in the tribes, effectively undermining tribal sovereignty. The end
result was continued poverty and cultural stress.58
The Nation Building Approach
On the contrary, the Nation Building approach focuses on asserting rights to govern self and
on building the foundational and institutional capacity to exercise those rights effectively.
Under this approach, tribes assert self-rule, back up the assertions with effective governing
institutions and the governing institutions match the tribe political culture. Decision-making
is also strategic with leaders serving as nation builders and mobilizers.59 Cornell and Kalt
(2007) observe that under the nation building approach, there is more effective access to and
use of resources in the tribes resulting in increased chances of sustained and self-determined
economic development. There is also more effective defense of sovereignty and native
nations are now working - economically, socially, culturally and politically.60
Role of Courts in Nation Building
Cornell and Kalt, (2007) attribute the exponential growth of native nations over the last few
decades to effective governing institutions that include the judiciary.61As the judicial arm of
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government, the judiciary interprets and applies the law thus shaping the way leaders and
citizens’ act and how they relate to each other and to the outside world. A judiciary that
enjoys both internal and external legitimacy therefore plays a significant supporting role in
fostering economic development.62
In the Native Nations context, tribal judicial systems: -
Advance Tribal Sovereignty
Sovereignty is a complex concept capable of various definitions. It may be defined as
supreme public power, which has the right and, in theory, the capacity to impose its authority
in the last instance (De Benoist, 1999). Like national sovereignty, tribal sovereignty can be
understood as the freedom of a collective entity (tribe) to act. Tribal sovereignty is enshrined
in respective tribe’s constitutions and comprises internal and external sovereignty (Melissa
Tatum, 2014). Internal sovereignty ensures that any decisions about the tribes with regard to
their property and citizens are made by their participation and consent.
Tribal sovereignty enables tribal self-determination which, according to Cornell and Kalt
(1995), enables Indian tribes to become effective decision-makers in their own affairs as
opposed to reliance on decisions and actions by or from Federal government. Self-
determination often leads to strikingly positive results.
It can therefore be argued that internal sovereignty, nation-building, and economic
development go hand in hand. Without sovereignty and nation building, economic
development is likely to remain a frustratingly elusive dream (Cornell & Kalt, 2003). Native
Nations judiciary plays a critical in advancing and guarding a nation’s internal and external
sovereignty63 by defining, protecting and enforcing tribal jurisdiction. It mediates and
resolves disputes that arise between and among tribal citizens, families in the communities,
non-tribal citizens, tribal government and outside agencies and interests. It also defends
sovereignty against encroachment by other governments and reinforces its capacity to enter
into government-to-government relationships with other tribes or States.
Support Economic growth
In a report to the US Senate Committee on Indian Affairs, Kalt observes that an indispensable
foundation of successful businesses is a capable, independent tribal judiciary that can uphold
contracts, enforce stable business codes, settle disputes and in effect, protect business from
politics.64 An empowered and impartial tribal court system helps create an atmosphere of fair
play in the disputes that inevitably arise among those who live, work and do business with
the tribal community.
A fair, reasonable and depoliticized court system creates an environment in which land rights
are recognized and respected, labour disputes are decided on the basis of cause rather than
political relationships and neither citizens nor government can renege on contracts without
paying damages. When citizens and outside commercial interests observe an even-handed
and predictable treatment, they are much likely to invest their time, talents, skill and money
in the nation’s economy (Jorgensen, 2007).
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In contrast, when a nation’s court system seems not to be working in tandem with other
branches of government including the law enforcement system or vice versa, the nation can
be perceived as an unsafe place. This is detrimental to investments as potential investors will
see the Nation as unsafe for their property and staff.
Courts Build Constitutionalism and the Respect for the Rule of Law
Most tribal nations have constitutions that may either be written or unwritten (Melissa Tatum,
2014). But the existence of a progressive constitution by itself does not result in nation
building. It must be accompanied by a rejection of authoritarianism and the respect for the
rule of law (Modibo, 2008). A Constitution enshrines the nations values and the way they
want to be governed. To the Hopi tribe, for example, nation building is going back to the
values of who they are and then setting governance accordingly (Melissa Tatum, 2014).
Modibo (2008) argues that a key pillar of good governance is a strong, efficient and honest
administration of justice by a judiciary that enjoys the highest integrity. He stresses that the
judiciary being an organ of the state and a creature of the constitution, it must strive for the
viability of the state as a whole and not a particular government or political party in power.
The judiciary must also develop sensitivity to social contexts and assist in securing access to
justice for the underprivileged, marginalized and vulnerable groups. It achieves this through
popularizing knowledge of constitutional, statutory, common law and customary law legal
rights. It must also enable access to justice by physically increasing avenues for dispute
resolution, structuring appropriate forums for dispute resolution and introducing simpler and
more congenial rules of procedure.65
Courts Promote the Respect for Human Rights
Human rights carry normative value as a set of universally agreed values, standards and
principles. And according to the United Nations Development Group, development for all is
a human right.66 In its preamble, the UN Declaration on the Right to Development67
considers that “the elimination of the massive and flagrant violations of the human rights of
the peoples and individuals affected by situations such as those resulting from colonialism,
neo-colonialism, apartheid, all forms of racism and racial discrimination, foreign
domination and occupation, aggression and threats against national sovereignty, national
unity and territorial integrity and threats of war" would lead to the establishment of
circumstances propitious to the development of a great part of mankind.
Suppressing human rights stifles economic development. The American experiment
including among Native Americans bears testimony to this analogy. For a long period, there
had been limited focus on the status, nature and human rights of Native Americans. For
example, despite inclusion as US citizens in 1924,68 Indian tribes do not benefit from the bill
of rights under the US constitution. This resulted in violations of Native American rights by
both the federal and state governments and even by their own tribal governments, robbing
them of the drive and initiative to take greater responsibility for their collective destinies.
This necessitated the Indian Civil Rights Act, 196869 as an instrument for addressing
American Indian civil rights and facilitating greater development.70 Coupled with the self-
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determination era71that ushered in greater recognition and respect for human rights, the tribes
have developed exponentially by taking charge of their collective destinies.
Courts play a critical role in safeguarding human rights. Chief Justice Marshall set the stage
for this responsibility when in Fletcher v Perk, 1810,72 he held that “Courts are established
to decide on human rights.” In this landmark ruling, the court was particularly instrumental in
safeguarding property rights against legislative encroachment.
Sources and Consequences of Weak Judicial Institutions
It is not all a bed of roses for native nations. Many are experiencing challenges that is
stagnating and in some cases reversing their nation building efforts. Majority of these
challenges emanate from weak institutions including the judiciary. Weak judicial institutions
in native America are attributed to lack of self-determination especially for tribes which
rather than adopting constitutions based on their own values, chose to adopt Indian
Reorganization Act (1934) constitutions that rarely respond to tribes own values and
governance systems.
Weak judicial systems are also attributed to funding challenges. Many tribal courts rely on
funding from the Federal government which channels funds to the courts with indifference to
the consistency and adequacy of budget allocations.73
A weak judiciary stifles nation building. Where a judiciary is weak, there is a tendency for
other arms of government to meddle in court cases through overturning decisions, firing
officials or cutting of the courts finances. Law enforcement also suffers and citizens begin to
loose trust and confidence in their governance systems.74 This tends to rob citizens of the
incentive to think and act strategically for the long-term future. Kalt (2014) paints a tragic
picture:- elected officials tend to exploit the system for their immediate self-enrichment, other
governments and non-tribal partners in nation building loose respect for the nations
governance systems with the result of political upheaval, brain drain and a failed state.
Conclusion
Kenya can learn important lessons from the role of the judiciary in Native Nation building
experiences in the US especially at this time that the country is struggling with devolution
challenges. The judiciary can play a central role in Kenya’s development by strengthening
devolution to enable greater self-determined development by the devolved units. Recognizing
and strengthening protections and affirmative actions especially collective and property rights
for marginalized communities as identified by the constitution75 will enable collective
development of the nation as a whole.
And as the debate on governance in community land rages on, it might be an opportunity to
explore devolution of judicial functions to the communities through a collaboration between
the judiciary and proposed dispute resolution mechanisms at the community level. Funding
of judicial services is certainly a challenge in Kenya especially with the current parliament's
constant threats of budgetary cuts to the judiciary. One would therefore wonder if this is an
opportune time for a discussion on constitutional amendments to devolve the judiciary or
enable greater cooperation with the county governments to make justice accessible, cheaper
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The Judiciary in Nation Building 12
and faster, informed by the ongoing experiences from law enforcement and education,
currently under the national government, but which are increasingly relying on financial
support from the County governments.
This may or may not work but it certainly serves to initiate a discussion. And in furtherance
of this discussion on the role of the judiciary in nation building, this paper will end with a
few questions for reflection : -
Does the nation’s judicial system reflect the cultural values and norms
of the nation’s citizens? What are those norms and values and how are
they determined?
Are disputes being resolved judicially or politically?
Does the Judiciary serve as an effective check on the other branches of
powers? If not, what needs to be done and by who?
Is the court system properly equipped to serve the nation and it’s
citizens? What purpose does the nation want the judiciary to serve and
is it serving that purpose?
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Works
Cited
Benner, S. (2005). How Indians Lost their Land: Law and Power on the Frontier .
Cambridge , Massachusetts, USA: Harvard University Press.
Bureau of Indian Affairs. (2014, May 23). Frequently Asked Questions. Retrieved May 10,
2014, from US Department of The Interior; Indian Affairs: www.bia.gov/FAQs/index.htm
Cornell , S., & Kalt, J. (2007). Two Approaches to the Development . The Hardvard Project
on Indian Economic Development and the Native Nations Institute. Tucson: The University
of Arizona Press.
Cornell, S., & Kalt, J. (2003). Sovereignty and Nation Building: The Deevelopment
Challenge in Indian Country Today. Tucson: Native Nations Institute.
David Gretches, C. W. (1998). Cases and Materials on Federal Indian Law. St. Paul, MN:
West Group.
De Benoist, A. (1999). What is Sovereignty. TELOS , pp. 99-118.
Echo-Hawk, W. R. (2013). In the Light of Justice: The Rise of Human Rights in Native
America and the UN Declaration on the Rights of Indigenous Peoples. Golden, Colorado ,
USA: Fulcrum Publishing.
Jorgensen, M. (2007). Rebuilding Native Nations: Strategies for Governance and
Development. Tucson, Arizona, USA: The University of Arizona Press.
Kalt, J. (2014, April 15). Ford Foundation Professor (Emeritus) of International Political
Economy and Co-Director, J.F Kennedy School of Government, Harvard University. (K.
Sena, Interviewer)
Lujan, , C., & Adams, G. (2004, Fall). US Colonization of Indian Justice System: A Brief
History. Wicazo Sa Review , pp. 9-23.
Melissa Tatum, M. J. (2014). Structuring Sovereignty: Constitutions of Native Nations. Los
Angeles, California, USA: American Indian Studies Center.
Meriam , L. (1928). The Problem of Indian Administration. Baltimore: The John Hopkins
Press.
Modibo, O. (2008, March 27). Nation Building in Africa and the Role of the Judiciary.
Northern Illinois University Law Review , 169-182.
National Congress of American Indians. (2001). An Introduction to Indian Nations in the
United States. National Congress of American Indian. Washington: National Congress of
American Indian.
NNI. (2013). Who we are; What is Native Nation Building. Retrieved May 10, 2014, from
Native Nations Institute: www.nni.arizona.edu/whoweare/whatis.php
Pommersheim, F. (1988, Winter ). The Contextual Legitamacy of Adjudication in Tribal
Courts and the Role of Bar as an Interpretative Community: An Essay. New Mexico Law
Review , 18 (1), pp. 49-72.
Republic of Kenya. (2010). Constitution of Kenya. Nairobi, Nairobi, Kenya: Government
Printers.
The Harvard Project on American Indian Economic Development. (2008). Ths State of the
Native Nations: Conditions under US policies of self-determination. New York, New York,
USA.
Williams, R. (2014, April 28th). E. Thomas Sullivan Professor of Law and American Indian
Studies. (K. Sena, Interviewer)
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ENDNOTES
1
Joseph
Letuya
&
21
others
v
Attorney
General
&
5
others
[2014]
eKLR,
ELC
CIVIL
SUIT
NO.
821
OF
2012
(OS)
2
For
more
on
the
Citizen
Potawatomi
nation,
please
visit
http://www.potawatomi.org/
3
The
Harvard
Project
on
American
Indian
Economic
Development
is
based
at
the
J.F
Kennedy
School
of
Government
at
Harvard
University,
USA.
Please
see
http://hpaied.org/about-‐hpaied/affiliations-‐and-‐
partnership
4
The
Native
Nations
Institute
for
Leadership,
Management,
and
Policy
(NNI),
housed
at
The
University
of
Arizona's
Udall
Center
for
Studies
in
Public
Policy.
Please
see
http://nni.arizona.edu
5 th
The
Constitutional
Convention
took
place
from
May
25th
to
September
17 ,
1787
in
Philladephia.
Since
the
declaration
of
independence
from
Great
Britain
by
the
13
States
that
formed
United
States
on
July
4th,
1776,
the
United
States
was
operating
under
Articles
of
Confederation.
6
The
United
States
of
America
comprises
50
States
and
the
District
of
Columbia
which
serves
as
the
Nation’s
capital.
The
United
States
also
has
9
territories
and
associated
administrative
areas
that
include
American
Samoa,
Federated
States
of
Micronesia,
Guam,
Midway
Islands,
Northern
Mariana
Islands,
Puerto
Rico,
Republic
of
Palau,
Republic
of
Marshall
Islands,
and
U.S
Virgin
Islands.
For
more
on
the
United
States
of
America,
please
visit
http://www.usa.gov/Agencies.shtml
7
Article
1
Section
8
provides
that
“the
Congress
shall
have
power…..
to
regulate
commerce
with
foreign
nations,
among
several
States
and
with
Indian
Tribes….”.
This
commerce
clause
is
generally
accepted
as
the
recognition
of
tribal
sovereignty
in
the
constitution.
8
A
federally
recognized
tribe
is
an
American
Indian
or
Alaska
Native
tribal
entity
that
is
recognized
as
having
a
government-‐to-‐government
relationship
with
the
United
States,
with
the
responsibilities,
powers,
limitations,
and
obligations
attached
to
that
designation.
See
http://www.bia.gov/FAQs/
9
The
US
Department
of
Interior
supports
tribal
governments
through
the
Bureau
of
Indian
Affairs.
The
Constitution
gives
the
Federal
government
exclusive
authority
over
Indian
affairs.
State
governments
do
not
interfere
on
Indian
affairs
within
the
States.
For
more,
see
http://bia.gov/index.htm
and
http://www.ncai.org/about-‐tribes/Indians_101.pdf
10
Please
See
National
Congress
of
American
Indians,
Introduction
to
Tribal
Governments
at
http://www.ncai.org/about-‐tribes
11
The
Bureau
of
Indian
Affairs
estimates
that
there
are
1.9
Million
American
Indians
and
Alaska
Natives.
See
http://bia.gov/WhoWeAre/index.htm
12
Native
tribes
currently
own
approximately
50
Million
acres
of
land.
The
largest
tribal
Land
holding
is
by
the
Navajo
Nation
covering
17.2
Million
acres
(http://www.navajoadvantage.com/pages/natrlrs.htm).
Some
Indian
Reservations
are
as
small
as
one
acre.
13
Ibid,
National
Congress
of
American
Indians.
14
Courts
of
Indian
Offences
were
established
to
provide
adequate
machinery
for
the
administration
of
justice
for
Indian
tribes
in
those
areas
of
Indian
country
where
tribes
retain
jurisdiction
over
Indians
that
is
exclusive
of
State
jurisdiction
but
where
tribal
courts
have
not
been
established
to
exercise
that
jurisdiction
15
Getches,
David
H.,
Charles
F.
Wilkinson,
and
Robert
A.
Williams;
Cases
and
materials
on
federal
Indian
law.
St.
Paul,
MN:
West
Group,
1998
at
30
16
Ibid
17
Ibid,
Bureau
of
Indian
Affairs
18
Article
I,
Section
8
of
the
Constitution
states
that
“Congress
shall
have
the
power
to
regulate
Commerce
with
foreign
nations
and
among
the
several
states,
and
with
the
Indian
tribes”
Sena
The Judiciary in Nation Building 15
19
This
was
largely
based
on
the
Marshal
trilogy
that
is
discussed
further
below.
See
also
Native
American
Financial
Services
Association;
Historical
Sovereignty
and
Relations
at
http://www.mynafsa.org/historical-‐
sovereignty-‐relations/
20
Ibid
21
Ibid
22
Role
of
US
Supreme
is
discussed
below.
23
18
U.S.C.
§
1153
24
For
a
transcripts
of
the
Act,
please
visit
government
digital
archives
at
http://www.ourdocuments.gov/doc.php?doc=50&page=transcript
25
Act,
Indian
Reorganization.
"Indian
Reorganization
Act.(1934).
48."
Stat
984
(1934).
For
text,
see
http://www.cskt.org/gov/docs/reorganizationact.pdf
26
Law,
Public.
"280."
USC
Title
25
(1953)
27
H.R.3355
available
at
http://www.gpo.gov/fdsys/pkg/BILLS-‐103hr3355enr/pdf/BILLS-‐103hr3355enr.pdf
28
See
VAWA
2013
and
Tribal
Jurisdiction
over
Crimes
of
Domestic
Violence
at
http://www.justice.gov/tribal/docs/vawa-‐2013-‐tribal-‐jurisdiction-‐overnon-‐indian-‐perpetrators-‐
domesticviolence.pdf
29
The
three
cases
that
form
the
basic
framework
of
Indian
Law
in
the
US.
The
cases
were
decided
between
1823
and
1832
and
are
associated
with
Chief
Justice
Marshall
(1755-‐1835),
the
longest
serving
Chief
Justice
in
US
Supreme
Court
history
(1801-‐1835).
30
21
U.S.
(8
Wheat.)
543
(1823)
31
The
doctrine
of
discovery
is
a
concept
of
public
international
law
under
which
title
to
“discovered”
lands
lay
with
the
discovering
government
whose
subjects
explored
and
occupied
a
territory
whose
inhabitants
were
not
subjects
of
a
European
Christian
monarch.
Though
propagated
by
Chief
Justice
Marshall
of
the
US
Supreme
Court,
the
doctrine
is
traced
to
Papal
bulls
issued
by
Catholic
popes
to
European
discovering
nations
to
lay
claim
to
“discovered”
lands.
The
first
such
papal
bull
was
Dum
Diversas
issued
in
1452
by
Pope
Nicholas
V
to
King
Alfonso
V
of
Portugal
to
conquer
Saracens
and
Pagans
and
perpetually
enslave
them.
This
Papal
Bull
is
accredited
for
ushering
in
Slave
trade
in
West
Africa.
32
30
U.S.
(5
Peters)
1
(1831)
33
The
term
recognizes
a
government-‐to-‐government
relationship
between
the
US
and
Native
Indians
based
on
an
inherent,
though
limited,
sovereignty.
34
See
Generally
Getches
et
al.
Chapter
Five,
The
Federal-‐Tribal
Relationship
at
244
-‐366
35
31
U.S.
(6
Pet.)
515
(1832)
36
Italics
added
37
231
F.2d
89
(8th
Cir.1956)
38
241
U.S.
591
(1916)
39
187
U.S.
553
(1903).
This
decision
is
departure
from
prior
Supreme
Court
decisions
especially
the
Marshal
trilogy.
The
doctrine
of
plenary
power
gives
congress
the
power
to
unilaterally
abrogate
treaty
obligations
between
the
US
and
Native
Indians.
40
447
U.S.
134
(1980)
Sena
The Judiciary in Nation Building 16
41
43
U.S.
Stats.
At
Large,
Ch.
233,
p.
253
(1924).
42
Bureau
of
Indian
Affairs,
Courts
of
Indian
Offences,
at
http://www.bia.gov/WhoWeAre/RegionalOffices/SouthernPlains/WeAre/ciospr/index.htm
43
Jones,
Billy
Joe.
Role
of
Indian
tribal
courts
in
the
justice
system.
US
Department
of
Justice,
Office
of
Justice
Programs,
Office
for
Victims
of
Crime,
2000
at
5.
44
See
Generally
Tribal
Courts
clearing
house
at
http://www.tribal-‐institute.org/lists/justice.htm
45
The
Bureau
of
Indian
Affairs
is
under
the
Department
of
Interior
46
Ibid
47
See
generally
“What
is
the
jurisdiction
of
tribal
courts?”
US
Department
of
Interior,
Bureau
of
India
Affairs
at
http://www.bia.gov/FAQs/
48
The
Major
Crimes
Act,
1885
places
7
major
crimes
committed
in
Indian
Reservations
under
the
Federal
Government’s
jurisdiction.
The
crimes
are
murder,
rape,
and
assault
with
intent
to
commit
murder,
arson,
burglary
and
lacerny.
The
assumption
was
that
Indian
tribes
were
not
competent
to
deal
with
serious
crimes
and
punishments
49
495
U.S.
676
(1990)
50
435
U.S.
191
(1978),
51
118
U.S.
375
(1886)
52
450
U.S.
544
(1981)
53
25
U.S.C.§§
1301-‐1304.
As
a
consequence
of
tribal
sovereignty,
Native
Americans
living
in
reservations
do
not
enjoy
protections
under
the
US
Constitution
Bill
of
Rights.
The
Indian
Civil
Rights
Act
was
therefore
enacted
to
address
this
ap.
However,
the
Act
does
not
allow
actions
against
an
Indian
tribe
in
federal
court
for
deprivation
of
substantive
rights,
except
for
habeas
corpus
proceedings.
54
25
U.S.
Code
§
2802
55
It
takes
effect
on
March
7,
2015
but
piloting
is
being
carried
out
through
the
Pascua
Yaqui
Tribe
of
Arizona,
the
Tulalip
Tribes
of
Washington,
and
the
Umatilla
Tribes
of
Oregon.
56
Ibid
Harvard
project
57
Ibid, NNI
58
Ibid
at
16-‐17
Sena
The Judiciary in Nation Building 17
66
67 th
A/RES/41/128.
The
Declaration
on
the
Right
to
Development
was
adopted
on
4
December,
1986.
68
Ibid
Indian
Citizenship
Act,
1924
69
25
U.S.C.§§
1301-‐1304
(ICRA)
70
See
generally
Indian
Sovereignty
and
the
Judicial
Interpretation
of
the
Civil
Rights
Acts,
1979,
WASH.
U.L.Q
897
(1979).
Available
at
http://digitalcommons.law.wustl.edu/lawreview/vol1979/iss3/16
71
Self-‐determination
era
72
10
U.S.
87
(1810)
73
Ibid
Rebuilding
Native
Nations
at
122
74
Ibid
75
Article
260
Sena
The Judiciary in Nation Building 18
Sena