The University of Colorado Law School hosted its 11th annual John Paul Stevens Lecture Oct. 18 featuring Angela Riley, the chief justice of the Supreme Court of the Citizen Potawatomi Nation of Oklahoma and expert in tribal courts and law.
At the hybrid lecture, which drew both in-person and virtual audiences, Riley sat down for a fireside chat with Suzette Malveaux, the University of Colorado Law School’s director of the Byron R. White Center for the Study of American Constitutional Law. The conversation covered what tribal courts are, how Riley’s life experiences tie into her role on the bench and the history and future of tribal justice systems.
Since 2011, the University of Colorado Law School has hosted legal scholars to discuss a range of topics including the rule of law and international justice systems as part of its endowed John Paul Stevens Lecture series.
Along with serving on the Supreme Court of the Citizen Potawatomi Nation of Oklahoma, Riley is a professor at the University of California, Los Angeles School of Law where she teaches about federal Indian law and property law while focusing her research on Indigenous people’s rights. Riley is a citizen of the Potawatomi Nation and her discussion was the first time the John Paul Stevens Lecture has hosted a member of an Indigenous nation’s Supreme Court.
Malveaux opened the fireside chat by asking Riley to explain the term the third sovereign. The phrase the third sovereign is often credited to former U.S. Supreme Court Justice Sandra Day O’Connor who published an article in the Tulsa Law Review in 1997 about tribal justice systems.
“When I say the third sovereign, I mean it in exactly the way it sounds,” said Riley. She explained that while most people are aware about the sovereign power of state and federal courts, many aren’t aware of tribal courts which have their own, independent sovereign power.
The U.S. Department of the Interior estimates that there are 400 tribal justice systems across the country and five Courts of Indian Offenses, or CFR Courts, which cover 574 recognized Indian tribes. As for the structure of tribal courts, Riley explained, “tribal courts are as varied as tribes.”
Riley explained that courts across the country range from looking like a traditional state or a federal court to being composed of tribe elders or religious leaders with some courts using laws that are passed on orally.
Riley emphasized that tribal courts play an essential role in enforcing laws on reservations and maintaining public safety.
A 2016 study by the National Institute of Justice found that American Indian and Alaska Native men and women experience disproportionate rates of violence compared to the rest of the U.S. More than four in five women (84.3%) and men (81.6%) reported experiencing some sort of violence in their lifetime including sexual violence, domestic violence and stalking.
Protecting tribal members from violence, Riley said, is an essential function of tribal courts.
The relationship between tribal courts and state and federal jurisdictions in the U.S. has changed over time. And with two recent U.S. Supreme Court rulings and another case on the 2022 docket, Riley said that tribal justice systems are currently struggling to hold onto the power to hear cases that impact tribal members.
Historically, tribal governments and the federal government have exercised dual jurisdiction over crimes committed on tribal land, or Indian country, that involve members of a federally recognized tribe.
In 2020, the U.S. Supreme Court issued its ruling in McGirt v. Oklahoma which was brought by a Seminole Nation member who was convicted in state court. Jimcy McGirt argued his trial should’ve been held in federal court since the alleged crimes took place on the Creek Reservation in Indian country. The ruling found that much of eastern Oklahoma was still reservation land created by a 19th century treaty between the U.S. government and the Muscogee Nation. In handing down the ruling, the Supreme Court found Oklahoma didn’t have jurisdiction over a number of criminal cases involving tribal member defendants or victims under the Major Crimes Act.
“Many people feel it was a very powerful, if not beautiful, case,” said Riley. She said that the 5-4 ruling was significant in that it upheld a treaty between the U.S. and tribes and reaffirmed principles of tribal sovereignty. “Growing up in Oklahoma, it’s never something I thought I’d hear from the high court,” she added.
Riley considers the McGirt decision a victory from a tribal court perspective, but said that the court’s more recent ruling in Oklahoma v. Castro-Huerta undercut historic holdings of tribal jurisdiction.
Earlier this year, the Supreme Court handed down its ruling in Castro-Huerta which found that state courts hold joint jurisdiction under the Major Crimes Act to prosecute crimes by non-Indian defendants which impacted native victims and took place in Indian country.
From a tribal perspective, Riley said the decision was alarming since Oklahoma has in the past not prioritized investigating and prosecuting crimes committed on reservations against indigenous people. Riley said the ruling also called into question the legitimacy of tribal courts and overturned long held precedent over federal and tribal jurisdiction.
“It does something bigger than that. It suggests states have inherent jurisdiction in Indian country,” Riley said.
Malveaux emphasized that McGirt and Castro-Huerta were issued only two years apart but took very different stances on the power of tribal courts. Riley said that the shift could be due to the current court’s composition, but that it might also reveal the current court’s views on matters of Indian law and could mean the court is prepared to revisit other aspects of the McGirt decision.
Going into the court’s current session, Riley said she has concerns over how it will rule in Haaland v. Brackeen, which is set for oral arguments Nov. 9, and challenges the constitutionality of the 1973 Indian Child Welfare Act. The Supreme Court will consider if the ICWA exceeded Congress’ power and if it discriminates against children based on race.
Riley said she is concerned that the court might conflate tribal affiliation with race when historically it’s been considered a political affiliation. “I certainly have a bit of pessimism that the court won’t adhere to well settled principles,” she said.
‘We’re Still Here’
Riley grew up in rural Oklahoma before she attended Harvard Law School, graduating in 1998. She said that as a judge and a lawyer, her experiences on the reservation and as a member of the Potawatomi Nation gave her a unique perspective that strengthened her work.
She explained she grew up on a rural farm, 20 miles from the nearest gas station at a time when you couldn’t call 911 if you needed help. Now overseeing court in the same community, Riley said she understands many of the challenges people face in day-to-day life. “It’s very personal to me,” she said.
As a legal scholar, Riley said she’s been able to bring a unique perspective as well. When she first started class at Harvard Law, she said, “I realized there weren’t a lot of people who grew up butchering chickens and castrating hogs.” For her, the lived experience she has means she brings more than just intellectual curiosity about Indian law to her research and teaching.
Looking forward, Riley said that many young people, and young tribal members, are facing a challenging world. She said she has two teenage daughters and knows they’re coming of age in a time when concerns about climate change, wealth inequality, racial injustice and reproductive rights are front and center.
But she has hope and emphasized that indigenous people are resilient. She explained that over the course of the last hundred years, American Indians have faced government efforts to erase their culture and identities but added, “we’re still here.” Looking forward, Riley doesn’t see that resilience going away.
“Indians take the long view…I think that resilience has been demonstrated for hundreds and thousands of years,” said Riley.
She added that she encourages young people to commit themselves to their interests and that while it might be easy to want to “swipe through life” on social media, in her view “a life of value is to commit, to invest in something.”