The Native Amicus Briefing Project—in partnership with the Native American Rights Fund and the National Congress of American Indians’ Tribal Supreme Court Project—is a collaborative research effort coordinated by the Sovereignty Project to develop briefs and track ongoing cases related to Indian law in the federal courts.

Our briefs have both supplemented necessary information for the Court’s guidance and interpretation and allowed for individuals not party to the case to have a voice in the proceedings. Furthermore, they have influenced the merits briefs, as well as other amici briefs, with their novel arguments and significant research. Thus far, the Project has seen success in one of the three cases decided and has influenced dissents in others.

Dedicated law students from NYU and Yale have been at the heart of our advocacy efforts, while students from Harvard and Stanford have also worked in varying capacities with the Project. As students contribute to vital efforts to protect Indigenous sovereignty, they are also able to hone their research and legal writing skills, preparing them for civil and appellate litigation

Filed Briefs 

Penobscot Nation v. Frey

On January 6, the Project, in partnership with NARF, NCAI, and Deutsch Hunt PLLC, filed its first amicus brief with the Supreme Court in Penobscot Nation v. Frey, on behalf of Native American Caucus Co-Chair and U.S. Representative Sharice Davids and Native American Caucus Vice Chair and U.S. Representative Raúl Grijalva.

In Penobscot Nation v. Frey, the Supreme Court had the opportunity to correct a recent First Circuit decision that upended established Indian law canons of construction and undermined the principles of sovereign-to-sovereign relations that govern engagement between Native nations and the United States. The First Circuit’s decision forced the Penobscot Nation to cede, without compensation, sovereignty over the only place where the Nation’s fishing rights matter—the Main Stem of the Penobscot River—on the unprecedented theory that inter-sovereign agreements between the United States and Native nations, such as statutes, are analyzed differently than formal treaties.

The brief, filed in support of the Penobscot Nation’s petition for a writ of certiorari, argued that the First Circuit’s approach disregarded Supreme Court precedent by treating formal treaties differently than other inter-sovereign agreements. The brief also argued that the First Circuit’s decision ignores trends away from the formal treaty process toward “treaty substitutes” in all areas of foreign relations, including relations with Native nations. Rather than applying established rules that place treaties and treaty substitutes on equal footing, the First Circuit created a new doctrine for inter-sovereign agreements ratified by statute.

As elaborated in the brief, the First Circuit’s decision violates the sovereignty of the Penobscot Nation and unsettles expectations of other Native sovereigns whose relationships with the United States are governed by non-treaty agreements. The Appendix to the brief listed the more than ninety Native nations with reservation boundaries set by statute or executive order whose ability to govern sovereign lands and to exercise rights protected by treaty substitutes is threatened. In a footnote, the brief also notes that the decision could introduce uncertainty to non-treaty agreements with foreign sovereigns.

In April, the Supreme Court denied the Nation’s petition for cert, declining the opportunity to reverse the injustice to the Penobscot Nation and bring the First Circuit’s law in line with long-standing principles of Indian law. Unfortunately, the practical result means that the Penobscot Nation does not have regulatory authority over the river surrounding their reservation islands. Lacking regulatory authority negatively impacts their sovereign rights for subsistence, such as fishing, hunting, and trapping rights. Despite this disappointing decision, the Project’s brief provided a necessary historical perspective on behalf of Representatives Davids and Grijalva through the contributions of the NYU Law and Yale Law students who assisted the Project with their diligent and detail-oriented historical research, treaty research, pinpoint citations, and citations. According to Professor Amanda L. White Eagle, “Most significantly, the brief, or portions of it, can be used in the future to address similar issues regarding the interpretation of treaty and treaty substitute cases, as the merits briefs did not address this broad concern over the wide-ranging impact of this case on other treaties and treaty substitutes.”

Denezpi v. United States

On January 18, the Project filed its second amicus brief in Denezpi v United States. Members of the project, including students from NYU, Yale, and Stanford, worked with federal Indian law scholars and historians, the Native American Rights Fund, and Jenner & Block to file this brief.   

The double jeopardy case presented the question of whether the federal government can prosecute Merle Denezpi, a Navajo citizen, for the federal-law offense of aggravated sexual abuse, after he was already prosecuted for the same incident in the Ute Mountain Ute Tribe’s Court of Indian Offenses, where he was convicted of the tribal-law offense of assault and battery.

The Supreme Court has recognized that a single act violating two sovereigns’ laws comprises two distinct offenses for which the Constitution’s Double Jeopardy Clause permits two prosecutions. The Court has also recognized that, for the purpose of double jeopardy, Indian tribes and the United States are distinct sovereigns, because tribes’ authority to prosecute and punish conduct stems from inherent sovereignty and not a grant of federal authority. Applying that precedent, both the federal district court and the Tenth Circuit held that the Double Jeopardy Clause did not bar federal prosecution in this case.

Accordingly, the Project’s brief focused on the ultimate source of the prosecutorial power of the Courts of Federal Regulations (C.F.R. Courts). Historical research concluded that C.F.R. Courts derive their prosecutorial power from the tribes they serve. As the brief’s careful look at history provides, present-day independent tribal courts established under tribal constitutions trace their origins to the Courts of Indian Offenses, which later became C.F.R courts. Today, C.F.R. Courts remain functionally tribal courts. They differ from other tribal courts only in that they receive direct federal financing and logistical assistance.

In its brief, the Project notes that in the nineteenth century, the federal government routinely sought, sometimes heavy-handedly, to shape its federal aims and policies through C.F.R Courts. The courts, however, failed in achieving this objective because they were controlled by Native people. Native judges rarely punished community members for cultural practices and, instead, made decisions based on tribal law and customs through informal adjudications, often carried out in Indigenous languages. Nonetheless, at the time of the courts’ creation, Congress had foreclosed federal criminal jurisdiction over the categories of crimes prosecuted in the Courts of Indian Offenses due to the U.S. Supreme Court’s decision in Ex parte Crow Dog. When the federal government shifted its policy to goals more closely related to the restoration of tribal self-governance, there was a resulting impact on Courts of Indian Offenses. Efforts to punish practices of Native culture were abandoned, and tribes could enact their own criminal laws instead. When Congress enacted the Major Crimes Act, it recognized the Courts of Indian Offenses were an inadequate substitute for federal criminal jurisdiction because they relied upon tribal prosecutorial authority. The courts were also renamed C.F.R. Courts at that time.

Many tribes have shifted away from C.F.R. Courts toward wholly independent tribal courts. However, not every tribe has had the resources to create tribal courts independent of the C.F.R. Court infrastructure, and today, five C.F.R. Courts continue to serve fifteen tribes. These remaining C.F.R. Courts enforce tribal law with federal administrative and financial support.

Ultimately, the Supreme Court sidestepped the question of the source of the prosecutorial power of C.F.R. Courts. Writing for the majority, Justice Amy Coney Barrett concluded that the laws of the Ute Mountain Ute Tribe’s Court of Indian Offense proscribed a different offense than federal law and ruled that double jeopardy does not prohibit successive prosecutions for separate offenses. Though the court did not rule on the source of the prosecutorial power of C.F.R. Courts as explained in the Project’s brief, Justice Breyer referenced the brief during oral arguments.

Professor Amanda L. White Eagle states, “The brief provides a nuanced, historical overview that was largely unaddressed by the merit briefs; nevertheless, it remains critically important to discuss and understand tribal sovereignty.”

The Project was one of five amici briefs in this case. Indian law scholars and historians, along with dedicated students, provided the framework and expertise that enabled the Court to gain a broad, historical understanding of federal power and tribal court systems to render its decision. The amicus brief provided seven law and graduate students from Stanford Law and Yale with the opportunity to research primary and secondary sources and draft memoranda, specifically regarding the formation of Courts of Indian Offenses and C.F.R. Courts, as well as to gain historical perspective regarding the formation of tribal judiciaries.

Oklahoma v. Castro-Huerta

In early April, the Project filed its third amicus brief in Oklahoma v. Castro-Huerta. Members of the Project, including students from NYU, Yale, and Stanford, worked with federal Indian law scholars, the Native American Rights Fund, and the law firm Akin Gump Strauss Hauer & Feld to file this brief.

The Supreme Court considered whether a state has authority to prosecute non-Indians who commit crimes against Indians in Indian Country. In the case, Victor Manuel Castro-Huerta, a non-Indian, challenged his Oklahoma state court conviction of child neglect committed against a Native American child within the Cherokee Reservation. Castro-Huerta, who already pleaded guilty to federal charges, argued that under McGirt v. Oklahoma, the state lacked jurisdiction over crimes committed in Indian Country without federal approval, and the Oklahoma Court of Criminal Appeals overturned his state court conviction.

Seeking to limit the scope of McGirt, Oklahoma appealed the case to the Supreme Court and argued that because Castro-Huerta is non-Indian, McGirt does not bar his prosecution by the state (McGirt involved an Indian defendant) and more broadly, that the state should retain jurisdiction over non-Indian defendants for crimes against Indians committed in Indian Country.

The Project’s amicus brief sought to help the court understand the history of federal and state jurisdiction over crimes committed by non-Indians against Indians in Indian Country. As elaborated in the brief, Indian Affairs has long been a domain of traditional and exclusive federal power. The Founders understood the exclusion of state power was necessary to stabilize relations with Native nations, and states recognized Indian Affairs were an area of federal jurisdiction. When states tried to challenge federal power, they were met with repeated assertions of federal power.

The brief went on to explain the history of legislation on criminal jurisdiction in Indian Country. Though Congress has experimented with narrow grants of jurisdiction to state governments, it has moved away from such delegations in favor of strengthening tribal criminal jurisdiction. Congress has legislated criminal jurisdiction in Indian Country against a backdrop of exclusive federal power and the absences of state jurisdiction since the founding of the United States. Any state jurisdiction over crimes committed by or against Indians in Indian Country was affirmatively conferred on or delegated to Congress.

Accordingly, the brief argued that the two-hundred-year-old historical and legal record did not support Oklahoma’s argument for jurisdiction over this case and asserted that the federal government has exclusive jurisdiction to prosecute non-Indians who commit crimes against Indians in Indian Country, unless Congress affirmatively confers or delegates such authority to states. Fifteen students performed complex research from primary and secondary sources and drafted memoranda with both broad principles and nuanced pinpoint citations to assist Federal Indian law scholars and historians in drafting the brief.

 In June, in a 5–4 decision, the Supreme Court held that “the Federal Government and the State have concurrent jurisdiction to prosecute crimes committed by non-Indians against Indians in Indian Country.” Professor Maggie Blackhawk states that the Court’s decision goes “against hundreds of years of congressional action, against solid SCOTUS precedent, and against hundreds of years of history, leading to a devastating result for our democracy.”

In the coming year, the Project intends to support our partners on a legislative fix for this strike against the sovereignty of Native nations.

Brackeen v Haaland

In August the Project filed its fourth amicus brief in Brackeen v. Haaland, on behalf of the American Historical Association and the Organization of American Historians. The American Historical Association is the largest professional organization in the United States devoted to the study and promotion of history and historical thinking, while the Organization of American Historians is the largest scholarly organization devoted to the history of the United States and promotes excellence in the scholarship, teaching, and presentation of that history.

Members of the project, including students from NYU, Yale, and Stanford, worked with Akin Gump to file this brief. Fourteen graduate and undergraduate students from across disciplines collaborated with the Project’s seven law students to begin work on the brief in the fall of 2021, completing more than twenty-five initial memos around broadly defined research questions. After compiling their findings into an outline, students continued to work on research assignments throughout the year. The law students also had the opportunity to aid in drafting portions of this brief.

The case is scheduled for oral argument before the Supreme Court on November 9. In the lawsuit, several plaintiffs are challenging the constitutionality of multiple provisions of the Indian Child Welfare Act (ICWA), a forty-four-year-old federal law protecting the best interests of Indian children and families. Research fellow Rebecca Plumage explains, “ICWA has been recognized as the gold standard of child welfare practice for all children, and this case poses a significant threat to Indian children, families, and tribes.” Though the facts of this case involve ICWA, a ruling on the constitutionality of the act could significantly impact other areas of federal Indian law, stripping away other protections for tribes and chipping away at the sovereignty of Native nations. The significance of this case is illustrated by the immense support for upholding the act, including twenty-one amicus briefs.

The Project’s brief details the historical understanding and practice of federal and state power over Indian Affairs and the welfare of Native children, as well as the historical context leading to and surrounding the enactment of the Indian Child Welfare Act. As described in the brief, the federal government has exercised authority over Native children since the founding of the United States, and early efforts to provide education to Native children in the early nineteenth century grew into a nationwide program under which the federal government created and ran boarding schools. The brief goes on to describe how states and local governments were complicit in the creation and operation of such schools: states and localities sold the land upon which the schools were built and provided services to the schools, seeing Native children as a source of additional revenue rather than a responsibility.

Although boarding schools were ultimately recognized as failed federal policy by the mid-twentieth century, the policy shaped the way states viewed their role in the education and general welfare of Native children. At this time, the federal government shifted away from boarding schools and towards education and welfare policies administered at the state and local level. However, states initially refused to provide general welfare benefits to Native children and families. In an attempt to remedy the failures of its boarding school policy and entice states to provide for Native children, the federal government entered into contracts with states to fund welfare programs.

As the brief describes, states began to assume more responsibility over the welfare of Native children over time. In an effort to reduce the associated increase in welfare costs, the states began to remove Native children from their homes at unprecedented rates because Native children required fewer welfare dollars when placed into a middle-class or wealthy foster or adoptive home. As a result, an extraordinary number of families were separated, and those Native children were raised in homes with no political, cultural, or linguistic connection to their nations. The alarming rate of removal of Native children eventually led to the passage of ICWA in 1978; however, as the Project’s brief highlights, ICWA must also be viewed against the complete historical record of federal and state power over Indian Affairs and the welfare of Native children.

The care and education of Native children falls squarely into the constitutional powers of Congress, and the Court should uphold the challenged provisions of ICWA in full.

Case Tracking

A component of the Native Amicus Briefing Project, the Case Tracking Project monitors and documents ongoing Indian law cases in the federal courts. After receiving training by a research librarian, Sovereignty Project students are each assigned to particular federal jurisdictions and provide weekly docket searches through Public Access to Court Electronic Records (PACER), made possible by their access to Bloomberg Law, LEXIS, and Westlaw.

Students draft concise summaries of each case, noting its potential significance to Indian Country and federal Indian law. This work enables our staff, partners, and students to understand key trends in Indian Country and to develop long-term strategies for supporting tribal sovereignty through the courts. Tracking cases supports the Project’s parallel goal of drafting amici briefs in the lower federal courts that educate and assist with the interpretation of laws.

The students’ findings are compiled into a report that enables the Project to monitor important cases and issues in Indian Country and serves as a valuable resource for the Project’s partners. Project members are working to standardize the students’ research to make it easily accessible to other interested parties.