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 M?ori). 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.”
Read more
https://hls.harvard.edu/today/the-problem-with-indian-laws-made-by-others/
