There is something irritatingly wrong with Indian law practice at the Supreme Court.

Oral argument at the Supreme Court is a bitterly unpleasant affair for Indigenous people and tribal advocates for a lengthy variety of reasons. It is canonical that tribal advocates must attempt to avoid Supreme Court review; the strategic thinking is that the Court is the last place an Indian tribe would ever want to be. 1Open this footnote Close this footnote 1 See Louis F. Claiborne, The Trend of Supreme Court Decisions in Indian Cases, 22 Am. Indian L. Rev. 585, 599 (1997) (advising lawyers representing Tribes to avoid bringing their cases before the Supreme Court where possible). …Open this footnote Close No Indigenous person has argued a case before the Supreme Court since 2001, approaching a quarter century. 2Open this footnote Close this footnote 2 James Anaya was the last Indigenous person to argue a case in the US Supreme Court. See Nevada v. Hicks, 533 U.S. 353, 354 (2001); Matthew Fletcher, AILC: The First 13 Symposium, Turtle Talk (Mar. 12, 2012), https://turtletalk.blog/2012/03/13/ailc-the-first-13-symposium-this-friday/. …Open this footnote Close Only a tiny handful of Indigenous people have ever clerked for a Supreme Court justice. 3Open this footnote Close this footnote 3 See Justin Wingerter, Chickasaw Woman to Become First Native American to Clerk for Supreme Court Justice, The Oklahoman (updated Apr. 17, 2018, 9:30 AM CT), https://perma.cc/D9WB-SNCY (reporting that Tobi Young, who clerked for Justice Neil Gorsuch starting in 2018, was the first Native American tribal member to serve as a U.S. Supreme Court clerk). …Open this footnote Close Some justices overtly denigrate, often unintentionally, tribal interests because of ignorance of tribal nations and their citizens. The precedents over which the parties argue are soaked in a nasty history of bigotry and misrepresentation. 4Open this footnote Close this footnote 4 See generally Robert A. Williams, Jr., The Algebra of Federal Indian Law: The Hard Trail of Decolonizing and Americanizing the White Man’s Indian Jurisprudence, 1986 Wis. L. Rev. 219 (1986) (arguing that the Supreme Court’s Indian law jurisprudence is riddled with racism). …Open this footnote Close The Department of Justice, legally owing a duty of protection (known metaphorically as a trust responsibility) to tribal nations and individual Indians, flatly declines to respect its duties. 5Open this footnote Close this footnote 5 See generally Daniel I.S J. Rey-Bear & Matthew L.M. Fletcher, “We Need Protection from Our Protectors”: The Nature, Issues, and Future of the Federal Trust Responsibility to Indians, 6 Mich. J. Env’t. & Admin. L. 397 (2017) (arguing that the Department of Justice fails miserably in its trust duties to Indian tribes and individual Indians). …Open this footnote Close There has never been a tribal citizen with a political appointment in the Justice Department, and the Office of the Solicitor General has never even hired a tribal citizen to serve in a full-time attorney position. The Court is far more likely to grant review in cases where a tribal interest won below than when an anti-tribal interest prevailed. 6Open this footnote Close this footnote 6 See generally Matthew L.M. Fletcher, Factbound and Splitless: The Certiorari Process as Barrier to Justice for Indian Tribes, 51 Ariz. L. Rev. 933 (2009) (showing that the Court’s certiorari stage decisions discriminate against tribal interests). …Open this footnote Close Respected jurists who have decided dozens of Indian law cases demonstrate they have learned nothing at all from those past cases by continuing to ask basic questions with simple answers. 7Open this footnote Close this footnote 7 Justice Alito’s question about the origins of the default interpretative rules of federal Indian law is a good example. See Matthew L.M. Fletcher, A Bit More on the “Indian Canon” Talk in the Ysleta Argument, Turtle Talk (Feb. 23, 2022), https://perma.cc/C2HL-4V3C. …Open this footnote Close Every argument seems to be an exercise in theorizing any and every plausible reason to rule against tribal interests. 8Open this footnote Close this footnote 8 See, e.g., Matthew Fletcher, Contract and (Tribal) Jurisdiction, Yale L.J. F., Apr. 11, 2016, at 1, 5 (describing how Justice Kennedy entertained a theory with no precedent that would strip all tribal courts of jurisdiction over all nonmembers). …Open this footnote Close Justices with reputations for sober, staid images seemingly lose their tempers when tribal advocates make a powerful point. 9Open this footnote Close this footnote 9 Justice Kennedy’s aggressive interrogation of the tribal counsel in Dollar General Corp. v. Mississippi Band of Choctaw Indians, 579 U.S. 545 (2016), was, in my personal opinion as a witness to the argument, both shocking and unwarranted. Cf. Matthew L.M. Fletcher, Reflections on the Dollar General Argument, Turtle Talk (Dec. 8, 2015), https://perma.cc/9C9S-J69F . …Open this footnote Close Even off-the-cuff, seemingly improvised anti-tribal theories raised by no party at any stage of the litigation suddenly become decision rules. 10Open this footnote Close this footnote 10 See, e.g., City of Sherrill v. Oneida Indian Nation, 544 U.S. 197, 214 n.8 (2005) (adopting equitable defenses theory not argued or briefed by the parties at any stage of litigation). …Open this footnote Close Textualist, originalist judges suddenly point to post-enactment statements of federal agency bureaucrats as the controlling interpretation. 11Open this footnote Close this footnote 11 See, e.g., Carcieri v. Salazar, 555 U.S. 379, 390 (2009) (quoting Letter from John Collier, Commissioner of Indian Affairs, to Superintendents (Mar. 7, 1936) in an opinion authored by Justice Thomas). …Open this footnote Close Worst of all (although there is more), outcomes are seemingly random.

Weirdly, in the past decade or so, tribal interests have prevailed in a majority of the cases before the Supreme Court. Some of the most consequential cases have come down in the last decade, all of them favoring tribal interests. 12Open this footnote Close this footnote 12 See, e.g., Haaland v. Brackeen, 143 S. Ct. 1609, 1623 (2023) (affirming the constitutionality of the Indian Child Welfare Act); McGirt v. Oklahoma, 140 S. Ct. 2452, 2459 (2020) (affirming the reservation boundaries of the Muscogee (Creek) Nation); Michigan v. Bay Mills Indian Community, 572 U.S. 782, 785 (2014) (affirming tribal sovereign immunity). …Open this footnote Close Ostensibly, the Roberts Court is a textualist court, 13Open this footnote Close this footnote 13 See Aaron-Andrew P. Bruhl, Supreme Court Litigators in the Age of Textualism, 76 Fla. L.Rev. 59, 60 (2024). …Open this footnote Close which benefits tribal interests when they have treaty language or statutory language backing up their positions. Even so, the Court is known to deviate from the text and impose its own policy preferences on Indian country. 14Open this footnote Close this footnote 14 See, e.g., Oklahoma v. Castro-Huerta, 142 S. Ct. 2486, 2491 (2022) (affirming state criminal jurisdiction in Indian country in the absence of congressional authorization). …Open this footnote Close

Still, flush with Trump-appointed justices, Clarence Thomas, and Samuel Alito, the Court has signaled that no precedent is safe. The foundational principles of federal Indian law, many of which predate the existence of the United States, are open to question and potential reversal. 15Open this footnote Close this footnote 15 Compare, e.g., Haaland, 143 S. Ct. at 1631 (noting that two hundred years or so of Supreme Court precedents have recognized federal plenary power in Indian affairs), with, e.g., id. at 1662-89 (Thomas, J., dissenting) (arguing those precedents are wrong). …Open this footnote Close Nothing is sacred. Even so, a bad decision usually isn’t the end of the world. The Court’s collective lack of expertise in federal Indian law is nothing compared to its lack of expertise in how its decisions affect real people on the ground in Indian country, or even how federal bureaucrats will deal with the new decisions. Ironically, as a result, even the Court’s plainest rejections of tribal interests often mean nothing as tribal advocates easily find a way around the Court’s shallow reasoning. 16Open this footnote Close this footnote 16 See, e.g., Frank Pommersheim, Tribal Justice: Twenty-Five Years as a Tribal Appellate Justice 77–80 (2016) (describing the coda of Plains Commerce Bank v. Long Family Land & Cattle Co., 554 U.S. 316 (2008), where the Indian-owned business lawyered its way to victory after what appeared to be a major loss for tribal interests). …Open this footnote Close Perhaps more shockingly, tribal advocates can simply ask and receive from Congress a statutory “fix” to a bad decision. 17Open this footnote Close this footnote 17 See, e.g., Act of Nov. 5, 1990, Pub. L. No. 101–511, § 8077(b)-(c), 104 Stat. 1856, 1892-93 (codified as amended at 25 U.S.C. § 1301(2)) (overruling Duro v. Reina, 495 U.S. 676 (1990), by giving Indian tribes the power to “exercise criminal jurisdiction over all Indians,” even those from other tribes). …Open this footnote Close I once wrote, only partly in jest, that for tribal nations, Supreme Court cases are like reality television. 18Open this footnote Close this footnote 18 Matthew L.M. Fletcher, Indian Law Reality Television, or How to Stop Worrying When Losing in the Supreme Court, Fed. Law., Mar./Apr. 2020, at 47. …Open this footnote Close It can be exhilarating or painful to watch, but very little of what happens means much to real people.

This essay offers yet another proposal for Supreme Court reform. My proposal is rooted in a preference for subject matter expertise in judging. Drawing from arbitration practice, I propose a system in which the parties to federal court litigation — from federal district court all the way to the Supreme Court — negotiate and choose judges from a pool of subject matter experts. The pool would consist of Article III judges who develop subject matter expertise in a given field, say, intellectual property or federal Indian law, and who are available to hear cases over which they are experts, not generalists. Although seemingly radical, there are already formal and informal models for this structure, namely the Federal Circuit, the D.C. Circuit, state courts of criminal appeals, tribal courts, and of course arbitration itself.

I. Federal Indian Law and Policy 101

Judges with subject matter expertise in federal Indian law are legion. There are more that 400 tribal courts in the United States. 19Open this footnote Close this footnote 19 Tribal and CFR Courts, U.S. Dep’t of the Interior, Bureau of Indian Affs., https://perma.cc/ED3M-5UHS (archived May 25, 2025). …Open this footnote Close Tribal judicial powers derive from the sovereignty of tribal nations and their citizens. 20Open this footnote Close this footnote 20 .Restatement of the Law of American Indians § 13 (Am. L. Inst. 2024). …Open this footnote Close Since the 1970s, Congress has supported tribal self-determination over federal bureaucratic control over Indian country governance. 21Open this footnote Close this footnote 21 .Stephen L. Pevar, The Rights of Indians and Tribes 13-17 (5th ed. 2024). …Open this footnote Close Tribal nations may now establish court systems with federal appropriations and their own funds. 22Open this footnote Close this footnote 22 Federal funding is managed through federal self-determination acts. See 25 U.S.C. § 5321. …Open this footnote Close

In this era of tribal self-determination, tribal judges have become both more professionalized and more Indigenous. I have sat as an appellate judge (and occasional pro tem trial level judge) for at least seventeen different tribal courts all over the country. I am currently appointed to a dozen tribal appellate courts. 23Open this footnote Close this footnote 23 A mostly complete listing of tribal court opinions I have written is on Turtle Talk: Tribal Court Opinions, Turtle Talk, https://perma.cc/A7Z5-UL2Z (archived May 25, 2025). …Open this footnote Close I have worked with dozens of tribal judges, mostly in actual appellate judging work but also in tribal court development work. The large majority of the appellate judges I have worked with are licensed attorneys. A small number are not attorneys, but instead are tribal citizens with some legal experience, respected elders in the community, and/or have considerable traditional knowledge. Loosely speaking, something more than half of the judges I work with are tribal citizens of a federally-recognized tribe but not the tribe for which we work. We call this class of people nonmember Indians. About a quarter are tribal citizens, citizens of the tribe in which we are working. The remainder are non-Indians. All of the nonmember judges (Indian and non-Indian) are licensed attorneys. No tribe would retain a nonmember, non-lawyer to serve as a judge. Tribal appellate judges are more likely to be lawyers. Lawyers doing appellate work are mobile, part-time hired guns, who decide cases on the papers, and do not really need to be immersed in the community in the way trial judges, who decide cases in face-to-face interactions, often must be. Non-lawyers do take missteps as judges, even after extensive training; luckily, the tribal appellate courts clean up those errors so the tribal judiciary can move forward in a good way.

Circumstances for tribal nations and tribal justice systems have changed since the years before I began to serve as a tribal judge just after the turn of the twenty-first century. Prior to the 1980s, the effective beginning of the self-determination era, tribal judges were almost exclusively tribal members, with relatively few of these judges owning the credential of a law degree or state bar licensure. 24Open this footnote Close this footnote 24 Cf. Donald L. Burnett, Jr., An Historical Analysis of the 1968 ‘Indian Civil Rights’ Act, 9 Harv. J. on Legis. 557, 579, 581 (1972) (noting that tribal courts before the 1970s routinely prohibited the participation of professional attorneys and functioned with “untrained judges”). …Open this footnote Close The cornerstone of tribal self-determination, Public Law 638, enables tribal nations to accept federal funding directly to develop tribal institutions, including tribal justice systems. 25Open this footnote Close this footnote 25 25 U.S.C. § 5301. …Open this footnote Close With additional funding, tribes could retain licensed attorneys to serve at least some of the judicial positions at the trial and appellate level.

Another federal statute, the Indian Civil Rights Act (ICRA) of 1968, 26Open this footnote Close this footnote 26 25 U.S.C. §§ 1301-1304. …Open this footnote Close coupled with a Supreme Court decision interpreting ICRA, 27Open this footnote Close this footnote 27 Santa Clara Pueblo v. Martinez, 436 U.S. 49 (1978). …Open this footnote Close created additional and enormous pressure on tribal nations to develop justice systems. ICRA includes the “Indian Bill of Rights,” which obligates tribal nations to comply with most federal constitutional rights contained in the Bill of Rights. The 1978 decision, Santa Clara Pueblo v. Martinez, 28Open this footnote Close this footnote 28 436 U.S. 49 (1978). …Open this footnote Close held that the sole forums for enforcing the Indian Bill of Rights are tribal justice and political systems. 29Open this footnote Close this footnote 29 Id. at 65. …Open this footnote Close After Martinez, ICRA lawsuits against tribal governments must be brought in tribal courts. Martinez also held that tribal nations are immune from suit in federal and state courts, further funneling virtually all private lawsuits against tribal governments to tribal courts. 30Open this footnote Close this footnote 30 Id. at 58-59. …Open this footnote Close For the first few decades after that paradigm shift, tribal courts were often not ready to handle these new cases. Non-lawyer judges struggled with complex civil rights, criminal prosecutions, and commercial litigation, both in terms of procedure and substantive law. Interestingly, these non-lawyer judges could still be effective. Tribal judges could be trained to handle these difficult cases. Also, tribal courts could retain professional court staff, including judicial clerks, that advised non-lawyer judges on the law and assisted in drafting opinions (I did work like this for a tribe for a few years). In my experience, these non-lawyer judges possessed a great strength, knowledge of the local community and the tribe’s culture and traditions.

Greater financial resources and legal and political pressures have led the large majority of tribal nations to professionalize, at least in part, their judiciaries. More recently, Congress enabled tribes to exercise enhanced prosecutorial and criminal sentencing authority, even over non-Indians, where tribes guarantee federal-style standards, most notably, requiring tribes to provide law-trained judges when prosecuting non-Indians 31Open this footnote Close this footnote 31 25 U.S.C. §§ 1302, 1304. …Open this footnote Close (the law-trained judges requirement alone ensures greater procedural protection than non-Indians receive in federal and state courts). But many tribal courts retained their non-lawyer, tribal citizen judges for many purposes. Licensed attorneys ensure compliance with tribal constitutional and statutory law (and ICRA), but non-lawyer judges can ensure a connection to tribal culture. With this mix of lawyers and non-lawyers, tribal citizens and nonmembers, tribal justice systems have creatively developed ways to incorporate tribal cultures into judicial work without violating federal legal standards.

Every tribal judge, lawyer or not, is a subject matter expert on Indian law. Law-trained tribal judges either took Federal Indian Law in law school or have picked it up while practicing in the field. Tribes usually do not hire judges with little or no experience in Indian law (although tribes do hire former state or federal court judges with extensive judicial experience, giving them room to learn Indian law on the go). Even non-lawyer judges should be considered experts in Indian law; after all, they know reservation life, which is dominated by tribal laws and a federal Indian law overlay.

Here is a sampling of the judiciaries with which I have experience. Hopefully, this sample covers a good variety of tribal justice systems, most especially in the varying credentials that tribal judges possess.

A. Pokagon Band of Potawatomi Indians 32Open this footnote Close this footnote 32 See Dbakwnëgéwgëmëk, Pokagon Band of Potawatomi Indians, https://perma.cc/YF7E-9D6M (archived May 25, 2025). …Open this footnote Close

Pokagon Band now is a relatively financially secure tribal nation. The tribal council constituted the court in the early 2000s, before the tribe enjoyed that financial security. The first Chief Judge was (and is) Michael Petoskey, 33Open this footnote Close this footnote 33 See Members of the Judiciary, Pokagon Band of Potawatomi Indians, https://perma.cc/2WAR-4N6B (archived May 25, 2025). …Open this footnote Close a nonmember Indian who was also the first Chief Judge for four other tribes in Michigan. The first associate tribal judge was (and is) David Peterson, a non-Indian person who served as a Michigan state court judge for many years. There have been four appellate judges, Robert Anderson, Angela Riley, Jill Tompkins, and myself, all of whom are nonmember Indians and all of whom served as law professors at Washington, UCLA, Colorado, and Michigan State/Michigan respectively during their tenures. 34Open this footnote Close this footnote 34 Id. …Open this footnote Close Pokagon is a small tribe with a relatively small land base, but the trial court is very busy. 35Open this footnote Close this footnote 35 See Court Opinions, Pokagon Band of Potawatomi Indians, https://perma.cc/RH3L-GHVC (archived May 25, 2025). …Open this footnote Close The appellate court, however, has only heard three or four appeals in nearly a quarter century. 36Open this footnote Close this footnote 36 Id. …Open this footnote Close Pokagon, led by Judge Petoskey, has developed a nationally-respected Peacemaking program housed within the tribal court building that handles special cases diverted from the adversarial tribal court. 37Open this footnote Close this footnote 37 See Native Justice, Pokagon Band of Potawatomi Indians, https://perma.cc/738K-BWXW (archived May 25, 2025). …Open this footnote Close

B. Turtle Mountain Band of Chippewa Indians 38Open this footnote Close this footnote 38 The Turtle Mountain tribal court does not appear to have a website currently. See generally Turtle Mountain Band of Chippewa, https://perma.cc/CL4V-4VGY (archived May 25, 2025). …Open this footnote Close

Turtle Mountain is a very large, under-resourced tribal nation in rural North Dakota. My experience with this tribe is limited to 2005 and 2006. Then, there were four trial level judges, one of whom (Shirley Cain) was a licensed attorney who was also a nonmember Indian. The other judges were non-lawyers but were all tribal citizens. The tribal appellate court consisted of a pool of six to eight licensed attorneys, at least three of whom were tribal citizens—Monique Vondall-Rieke, Karrie Azure-Elliott, and Jerilyn DeCoteau. The remainder included a mix of nonmember lawyers (including myself) and one non-Indian lawyer (who had argued an important Indian law case before U.S. Supreme Court). Turtle Mountain’s trial court was incredibly busy. The appellate court, at times, could also be very busy. In the two years I served as an appellate judge there, I heard about a half-dozen cases. 39Open this footnote Close this footnote 39 E.g., Mathiason v. Gate City Bank, 2005 Turtle Mt. App. LEXIS 2 (Turtle Mountain Tribal Ct. App. Feb. 1, 2005); Monette v. Schlenvogt, 2005 Turtle Mt. App. LEXIS 1 (Turtle Mountain Tribal Ct. App. Mar. 31, 2005); Turtle Mountain Jud. Bd. v. Turtle Mountain Band of Chippewa Indians, TMAC No. 04-007 (Turtle Mountain Tribal Ct. App. 2005), https://perma.cc/LT4R-EHXH; Malaterre v. Est. of St. Claire, TMAC No. 05-007 (Turtle Mountain Tribal Ct. App. 2005), https://perma.cc/ZX44-XHWU. …Open this footnote Close

C. Rincon Band of Luiseño Indians 40Open this footnote Close this footnote 40 See Rincon’s Courts, Rincon Band of Luiseño Indians, https://perma.cc/Z9UE-F82K (archived May 25, 2025). …Open this footnote Close

Rincon Band is a very small, highly resourced tribal nation in rural San Diego County, California. Until recent years, the tribe relied upon an intertribal court system, the Intertribal Court of Southern California, to handle its entire judicial function. 41Open this footnote Close this footnote 41 See Intertribal Court of Southern California, https://perma.cc/4XBD-YGVK (archived May 25, 2025). …Open this footnote Close That court system currently maintains a roster of experienced lawyers, who are nonmember Indians for the most part. 42Open this footnote Close this footnote 42 See Judges, Intertribal Court of Southern California, https://perma.cc/M63Q-WU23 (archived May 25, 2025). …Open this footnote Close However, the tribe chose to develop a lengthy roster of tribal judges for its own court system, primarily handling appellate cases involving some aspect of tribal sovereignty. 43Open this footnote Close this footnote 43 See Justices of the Court of Appeals, Rincon Band of Luiseño Indians, https://perma.cc/NAA4-PXBD (archived May 25, 2025). …Open this footnote Close This roster of judges includes a mix of nonmember Indians and non-Indians. All of them are licensed attorneys. Several of them are law professors specializing in Indian law, for example, Angela Riley (UCLA) and Stacy Leeds (Dean at Arizona State). Several more are retired federal judges, for example, Raul Ramirez (ret. E.D. Cal.) and Oliver Wanger (ret. E.D. Cal.). I have heard two cases for Rincon. 44Open this footnote Close this footnote 44 See Mazzetti v. Kolb, No. AP-0001-23 (Rincon Band Ct. App. 2024), https://perma.cc/JW8Z-MQZN; Donius v. Rincon Band of Luiseño Indians, No. AP-0205-19 (Rincon Band Ct. App. 2020), https://perma.cc/6Z92-R4YU. …Open this footnote Close In those instances, I sat with three different retired federal judges, James Ware (Northern District of California), Deanell Reese Tacha (Tenth Circuit), and Arthur J. Gajarsa (Federal Circuit). The former federal appellate judges had heard numerous Indian law cases as federal judges, 45Open this footnote Close this footnote 45 E.g., In re U.S., 590 F.3d 1305, 1306 (Fed. Cir. 2009) (Gajarsa, J.); Shoshone Indian Tribe of the Wind River Indian Rsrv. v. United States, 364 F.3d 1339, 1341 (Fed. Cir. 2004) (Gajarsa, J.); Duke v. Absentee Shawnee Tribe of Oklahoma Housing Auth., 199 F.3d 1123, 1124 (10th Cir. 1999) (Tacha, J.); EEOC v. Cherokee Nation, 871 F.2d 937, 939 (10th Cir. 1989) (Tacha, J., dissenting); Larimer v. Konocti Vista Casino Resort, Marina, & RV Park, 814 F.Supp.2d 952, 953 (N.D. Cal. 2011) (Ware, J.). …Open this footnote Close presumably infusing them with some experience with Indian country disputes.

D. Lac du Flambeau Band of Lake Superior Chippewa Indians 46Open this footnote Close this footnote 46 See Tribal Operations, Lac du Flambeau Tribe, https://perma.cc/6RSV-QSDD (archived May 25, 2025). …Open this footnote Close

Lac du Flambeau is a relatively small, rural tribal nation in northern Wisconsin with a decent-sized reservation and limited resources. The tribal court judges are tribal citizens and non-lawyers. They handle simple, informal cases. The tribe adopted a court rule allowing the appointment of a law-trained attorney to handle complex, commercial litigation. 47Open this footnote Close this footnote 47 See Lac Du Flambeau Tribe, Tribal Ct. Code §§ 80.103(3)(a)(iii), (b),, https://perma.cc/K3N9-N6B7. …Open this footnote Close In that stead, I have been appointed twice as a pro tem trial judge in two separate commercial cases (one of which is still pending). 48Open this footnote Close this footnote 48 See Lake of the Torches Econ. Dev. Corp. v. Saybrook Tax Exempt Invs., LLC, No. 13 CV 115 (Lac du Flambeau Tribal Ct. Aug. 27, 2013), https://perma.cc/7NTZ-4Z2N . …Open this footnote Close It is my sense that the Flambeau tribal judges are generally not law-trained. However, the tribal appellate judges are drawn from a pool of judges known as the Wisconsin Tribal Judges Association (WTJA). 49Open this footnote Close this footnote 49 See Wisconsin Tribal Judges Ass’n, https://perma.cc/85BW-2W8T (archived May 25, 2025). …Open this footnote Close It is my sense that the members of WTJA are a mix of Indians and non-Indians, members and nonmembers, and lawyers and non-lawyers. As far as I can tell, all of them are experienced tribal judges with experience in Indian law. 50Open this footnote Close this footnote 50 I am extrapolating from the listing of judges that are current or former board members of the association. See About Us, Wisconsin Tribal Judges Ass’n, https://perma.cc/6S83-54X6 (archived May 25, 2025). …Open this footnote Close

II. The Subject Matter Expertise Problem in Federal Judging

Article III federal judges have jurisdiction over Indian law matters involving the interpretation of Indian affairs statutes and regulations and Indian treaties. 51Open this footnote Close this footnote 51 E.g., Restatement of the Law of American Indians § 58 (“Federal courts have subject-matter jurisdiction over certain causes of action arising under federal common law governing Indian affairs . . . .”). …Open this footnote Close They also have jurisdiction over constitutional challenges to federal agency and legislative actions. 52Open this footnote Close this footnote 52 E.g., Haaland v. Brackeen, 143 S. Ct. 1609, 1623 (2023) (rejecting constitutional challenge to the Indian Child Welfare Act). …Open this footnote Close The Supreme Court has also asserted authority (without congressional authorization) to assess the jurisdiction of tribal governments and tribal courts over nonmembers (in civil cases) 53Open this footnote Close this footnote 53 National Farmers Union Ins. Co. v. Crow Tribe of Indians, 471 U.S. 845 (1985). …Open this footnote Close and non-Indians (in criminal cases). 54Open this footnote Close this footnote 54 Oliphant v. Suquamish Indian Tribe, 435 U.S. 191 (1978). …Open this footnote Close Each year, the federal judiciary decides dozens upon dozens of federal Indian law matters. Typically, the Supreme Court hears at least one Indian law matter and occasionally up to five cases in a given Term. Few Article III judges have any experience in federal Indian law matters until they are assigned an Indian law case. Indian law work is largely not respected in elite legal circles. 55Open this footnote Close this footnote 55 In my experience as a practitioner and a judge, I have worked with opposing counsel and parties, respectively, that casually denigrate tribal courts, tribal laws, and tribal practice, but I do believe that many attorneys now take Indian law seriously. See Matthew L.M. Fletcher, Professionalism in Tribal Jurisdictions, Mich. B.J., Nov. 2022, at 5-6, 8, https://perma.cc/ZR55-UJV2. …Open this footnote Close It is fair to say that ambitious young lawyers building a career designed to build a strong candidacy for the federal bench would be wasting their time by working extensively with tribal nations or in Indian country. Occasionally, a federal judge who worked for the U.S. Department of Justice or the Office of the Solicitor General might have handled or argued an Indian law case, but that experience would only be a small part of her work before her confirmation as a federal judge. Only a very small handful of federal district court judges are tribal citizens, and most of them are brand-new Biden appointees. 56Open this footnote Close this footnote 56 They are Sara Hill (N.D. Okla., confirmed 2023, Cherokee Nation); Diane Humetewa (D. Ariz., confirmed 2014, Hopi Tribe); Lauren King (W.D. Wash., confirmed 2021, Muscogee (Creek) Nation); and Sunshine Sykes (C.D. Cal., confirmed 2022, Navajo Nation). …Open this footnote Close

Most of federal Indian law is statutory, with treaty language sprinkled in. Congress dominates Indian law. For most of the history of federal Indian law and policy, the Supreme Court greatly deferred to Congress (and often, the executive branch) in the exercise of its Indian affairs powers. 57Open this footnote Close this footnote 57 E.g., Lone Wolf v. Hitchcock, 187 U.S. 553, 568 (1903) (assuming that Congress acts in “good faith” toward Indians and tribes). …Open this footnote Close Tribal interests had little or no chance to prevail against the federal government, in part because the federal government had statutory control over tribal attorney contracts (at least until 2000), 58Open this footnote Close this footnote 58 25 U.S.C. § 476(e), repealed in relevant part by Indian Tribal Economic Development and Contract Encouragement Act of 2000, Pub. L. No. 106-179, § 3, 114 Stat. 46, 47. …Open this footnote Close but also because federal sovereign rights barred relief. 59Open this footnote Close this footnote 59 E.g., United States v. Mitchell, 445 U.S. 535, 542 (1980) (rejecting an Indian breach of trust claim against the US because a federal statute describing the asset as under federal “trust” did not create trust duties enforceable against the government). …Open this footnote Close Unless Congress enacted a law that tipped the scales toward a tribal or Indian interest, which was unbelievably rare until the 1970s, tribes and Indians almost always lost.

Even now, after a half-century of self-determination policy where the large majority of Indian affairs legislation is designed to benefit tribal interests, tribes know better than to rely on the judiciary. 60Open this footnote Close this footnote 60 For example, the Court’s recent decision in Oklahoma v. Castro-Huerta, 142 S. Ct. 2486 (2022), held in favor of state criminal jurisdiction in Indian country, even in the absence of congressional authorization, violating the principle dating back to 1832 that state law has “no force” in Indian country. See Worcester v. Georgia, 31 U.S. 515, 561 (1832). …Open this footnote Close Legal scholars long have recognized and demonstrated that the federal judiciary, especially the Supreme Court, has shifted its focus from deferring to Congress in Indian affairs to a focus on stringently limiting tribal powers and authorities. 61Open this footnote Close this footnote 61 I once referred to this jurisprudence as “canary textualism.” See Matthew L.M. Fletcher, Muskrat Textualism, 116 Nw. U. L. Rev. 963, 980-86 (2022). …Open this footnote Close Tribal advocates have, for the most part, internalized that learning and usually take strategic action designed to prevent Supreme Court review. Why is that?

Federal judges are focused on the U.S. Constitution. The constitutional text says little about individual Indians and tribal nations, despite Indians and tribes being mentioned twice. 62Open this footnote Close this footnote 62 Const. Art. I, § 8, cl. 3; Const. Amend. XIV, § 2. …Open this footnote Close The Constitution is really about federal and state governmental powers and authorities, a reality that creates enormous structural disadvantages for tribal interests. When a federal judge is tasked with weighing the sovereign interests of state governments against the federal government, the Supremacy Clause tends to require the elevation of federal interests. 63Open this footnote Close this footnote 63 Const. Art. VI, cl. 2. E.g., Worcester v. Georgia, 31 U.S. 515, 538-39 (1832) (holding federal laws and Indian treaty terms, which are also federal laws, preempt conflicting state criminal laws). …Open this footnote Close When a federal judge is tasked with weighing the sovereign interests of states or the federal government against tribal interests, she looks to a Constitution that offers relatively great detail and support for federal and state interests, but no support whatsoever for tribal interests. 64Open this footnote Close this footnote 64 E.g., Oklahoma v. Castro-Huerta, 142 S. Ct. 2486, 2501 (2022) (finding no tribal interest affected by state prosecuting non-Indians for crimes in Indian country). …Open this footnote Close If there are substantial tribal interests, it is because Congress has enacted statutes recognizing those interests or because a tribe has treaty rights guaranteeing those interests. 65Open this footnote Close this footnote 65 E.g., White Mountain Apache Tribe v. Bracker, 448 U.S. 136, 147-49 (1980) (finding tribal and federal interests in federal Indian country timber statutes and regulations). …Open this footnote Close The Court’s turn away from deferring to Congress has come at exactly the wrong time for tribal nations.

Generalist judges presumably possess great advantages. They are brilliant (and politically savvy) lawyers and judges who rose to the peak of the judiciary. They see issues with fresh eyes. They are assisted by insanely brilliant law clerks, some of whom will become judges or prominent appellate advocates later in their careers. In theory, Article III judges are insulated from partisan politics (though at this stage of American democracy only the most naïve observers and ardent defenders of the judiciary accept this). However, there is considerable circumstantial evidence that the Justices lack subject matter expertise in federal Indian Law. Scholars like Michalyn Steele have powerfully demonstrated that the Court has little institutional capacity to choose from policy options in Indian affairs. 66Open this footnote Close this footnote 66 See Michael Doran, Tribal Sovereignty Preempted, 89 Brook. L. Rev. 53, 108 (2023) (citing Michalyn Steele, Comparative Institutional Competency and Sovereignty in Indian Affairs, 85 U. Colo. L. Rev. 759, 779-815 (2014)). …Open this footnote Close The Supreme Court is not, after all, the Legislature.

Tribal advocates also have long suspected that federal judges’ relative lack of experience in Indian law issues results in bad decisions. By “bad” I do not necessarily mean those decisions that go against tribal interests, but decisions that are seemingly unmoored from the lived experience of Indian people and tribal nations. A “bad” decision does not adequately answer important questions, usually leading to more litigation resulting in more federal court decisions, many of which are also “bad.” A “bad” decision rests upon incorrect or false assumptions, or facts not based in the record below, or unacknowledged biases of authoring judges (or their clerks). A “bad” decision relies on legal theories and “facts” not briefed or alleged by the parties. A “bad” decision, perhaps the worse kind of decision, is a decision that is based on the factual circumstances of a specific tribe or tribes and applies by its terms to all tribal nations, regardless of the other tribes’ circumstances. Much of the acute strategic decision-making by tribal advocates at the Supreme Court is playing a form of defense designed to keep the Justices on point, focusing on the precedents and the statutory text.

Lack of subject matter expertise can also contribute to the problem of tribal essentialism, a huge problem on two levels. First, the Court routinely looks at a non-party tribe’s circumstances and applies those circumstances to the tribe at issue in a given case. Second, the Court takes a decision litigated and framed by the parties to a given case that is (hopefully) molded by the party tribe’s circumstances and applies that holding and reasoning to all tribes.

On the first point, there are numerous examples where the Court or individual judges seem intent on learning facts about one tribe or group of tribes and assuming that those tribe-specific circumstances can be generalized to all tribes.

The majority in Nevada v. Hicks alleged that Indian country was a haven for lawlessness in a case about an innocent tribal citizen subjected to repeated searches of his home for contraband. 67Open this footnote Close this footnote 67 See Nevada v. Hicks, 533 U.S. 353, 356, 364 (2001) (expressing worry about Indian reservations becoming “an asylum for refugees from justice”) (quoting Fort Leavenworth R. Co v. Lowe, 114 U.S. 525, 533 (1885)). …Open this footnote Close In the same case, Justice Souter wrote a concurring opinion asserting that many tribal courts applied procedures and substantive laws that “outsiders” would find “unusually difficult to sort out.” 68Open this footnote Close this footnote 68 Id. at 384-385 (Souter, J., concurring). …Open this footnote Close A simple search on Westlaw for court opinions handed down by the tribal court at issue in that case, the Inter-tribal Court of Nevada, showed that the court did not rely on tribal customs and traditions to decide its cases. 69Open this footnote Close this footnote 69 See Matthew L.M. Fletcher, A Unifying Theory of Tribal Civil Jurisdiction, 46 Ariz. St. L.J. 779, 798-99 (2014). …Open this footnote Close Years later, Justice Breyer asked the advocate for the tribe in Dollar General v. Mississippi Choctaw what scholarly sources he could turn to for information about tribal courts, 70Open this footnote Close this footnote 70 Oral Argument at 40-41, Dollar General Corp. v. Mississippi Band of Choctaw Indians, 579 U.S. 545 (2016) (No. 13-1496), 2015 WL 9919326. …Open this footnote Close possibly looking for developments in the legal scholarship about tribal courts. No judge asked or appeared to care to learn anything about the Mississippi Choctaw courts (which are very impressive, by the way). 71Open this footnote Close this footnote 71 See Supreme Court Decisions, Mississippi Band of Choctaw Indians, https://perma.cc/8D3R-6KEM (archived May 25, 2025). The tribal appellate court opinion leading to the Dollar General decision, Doe v. Dollar General Corp., No. CV-02-05 (Mississippi Choctaw S. Ct. 2005), https://perma.cc/WQN4-6Y8U, was authored by Frank Pommersheim, the preeminent Indian law professor and tribal judge in the country. …Open this footnote Close

The Court in City of Sherrill v. Oneida Indian Nation adopted a theory allowing it to reject a tribal tax immunity that no party had briefed or argued. 72Open this footnote Close this footnote 72 See 544 U.S. 197, 223-224 (2005) (Stevens, J., dissenting). …Open this footnote Close The theory requires extensive factual development that no party would have known to pursue prior to the adoption of the theory on the scope of tribal disruption of “justifiable” non-Indian expectations. 73Open this footnote Close this footnote 73 Id. at 215-216. …Open this footnote Close The Court invented, adopted, and applied this theory to rule against the tribe in the absence of the development of a factual record. Several Second Circuit opinions following the Sherrill reasoning summarily dismissed numerous claims without allowing the tribes to develop a factual record and even without holding a hearing. 74Open this footnote Close this footnote 74 E.g., Oneida Indian Nation of New York v. County of Oneida, 617 F.3d 114, 117-118, 127 (2d Cir. 2010) (dismissing tribal land claims under reasoning of Sherrill). …Open this footnote Close Justice Ginsburg, the majority opinion’s author, later said the decision was her greatest regret. 75Open this footnote Close this footnote 75 See Ruth Bader Ginsburg Wants Trump to Appoint a Native American Woman to the Supreme Court, Buffalo Chron.(May 5, 2020), https://perma.cc/4B2S-DUAP. …Open this footnote Close

On the second point, there are fewer examples, but the most important one is a big one, Oliphant v. Suquamish Indian Tribe. 76Open this footnote Close this footnote 76 435 U.S. 191 (1978). …Open this footnote Close Justice Rehnquist’s opinion in Oliphant stripped tribes of criminal jurisdiction over non-Indians by judicial fiat. 77Open this footnote Close this footnote 77 Id. at 195. …Open this footnote Close The opinion focused extensively on the history of the nineteenth-century tribal courts of the Five Tribes of Oklahoma, but only from the point of view of federal bureaucrats and federal legislators. 78Open this footnote Close this footnote 78 Id. at 196-200. …Open this footnote Close The Oliphant case was about the courts of the Suquamish Tribe of Washington, which were and are radically different from the Oklahoma tribal courts in terms of process and culture. Oliphant’s legacy is a deadly one, with Indian country crimes rates by non-Indians rising steadily since the decision. Even that decision’s shoddy jurisprudence still shows up from time to time. Ninth Circuit Judge Bumatay recently wrote that almost all tribal judges (and juries) are tribal citizens in a dissent in Lexington Insurance Co. v. Smith, citing to Oliphant. 79Open this footnote Close this footnote 79 117 F.4th 1106, 1115 (9th Cir. 2024) (Bumatay, J., dissenting from denial of en banc petition). …Open this footnote Close Ironically, Smith actually did involve the Suquamish Tribe as well, though the Suquamish Tribal Court has changed dramatically since 1978. 80Open this footnote Close this footnote 80 Compare Oliphant v. Suquamish Indian Tribe, 435 U.S. 191, 193-94 (1978) (referencing the “provisional” tribal court that likely had no law-trained judges), with Lexington Ins. Co. v. Smith, 138 Harv. L. Rev. 1689, 1694 (2025) (describing the modern-era Suquamish tribal court). …Open this footnote Close Judge Bumatay’s allegation is simply and outrageously false; the Suquamish tribal appellate panel consisted of three non-Indian, nonmember judges, all of whom have extensive tribal court experience. 81Open this footnote Close this footnote 81 See Lexington Ins. Co. v. Smith, 138 Harv. L. Rev. 1689, 1694 (2025); Suquamish Indian Tribe v. Lexington Insurance Co., No. 200601-C (Suquamish Tribal Ct. App. Oct. 7, 2021), https://perma.cc/U92X-VH7G (opinion signed by three law-trained judges, all of whom are non-Indians). …Open this footnote Close

Finally, several important Supreme Court decisions have been quickly or gradually overruled by Congress in the last few decades. The Court’s decision in Duro v. Reina rejecting tribal criminal jurisdiction over nonmember Indians 82Open this footnote Close this footnote 82 495 U.S. 676, 679 (1990). …Open this footnote Close was overruled within a year. 83Open this footnote Close this footnote 83 Act of Nov. 5, 1990, Pub. L. No. 101–511, § 8077(b)-(c), 104 Stat. 1856, 1892-1893 (codified as amended at 25 U.S.C. § 1301(2)). …Open this footnote Close A few years later, Congress overruled the Court’s decision in Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians v. Patchak. 84Open this footnote Close this footnote 84 567 U.S. 209 (2012); Gun Lake Trust Land Reaffirmation Act, Pub. L. No. 113-179, 128 Stat. 1913. …Open this footnote Close Even the Court’s paradigm-shifting decision stripping tribes of the power to prosecute non-Indians was chipped away by Congress in partial “fixes” in 2013 and 2022, 85Open this footnote Close this footnote 85 25 U.S.C. §§ 1302(b)-(d), 1304. …Open this footnote Close although the original decision remains effective in most instances. Congress has not enacted any laws reversing the Court’s decisions favoring tribal interests.

Even in the absence of congressional reversal, the Court’s failure to understand the facts on the ground in Indian country often renders the Court’s confident decisions fundamentally irrelevant within a few years. In Carcieri v. Salazar, the Court held that tribes “not under federal jurisdiction” in 1934 cannot benefit from the Interior Secretary’s power to acquire land into trust for tribal beneficiaries. 86Open this footnote Close this footnote 86 555 U.S. 379, 394-96 (2009). …Open this footnote Close  In that decision, the Court foreclosed the Narragansett Tribe and the Department of the Interior from the opportunity to demonstrate that the tribe could meet the new interpretation articulated by the Court. 87Open this footnote Close this footnote 87 Id. at 395-96. …Open this footnote Close Every tribe since that decision has been able to meet the “under federal jurisdiction” standard, once they took advantage of the opportunity to develop the factual record required to comply with the Carcieri decision; 88Open this footnote Close this footnote 88 E.g., Littlefield v. U.S. Dep’t of the Interior, 85 F.4th 635, 640 (1st Cir. 2023); Confederated Tribes of Grand Ronde Community of Oregon v. Jewell, 830 F.3d 552, 556 (D.C. Cir. 2016). …Open this footnote Close every tribe, that is, except the Narragansett Tribe, which could have easily met the test had they not been foreclosed from even trying to do so by the Carcieri opinion.

There is a potential way forward that limits the judiciary’s power to second-guess Congress or tribal nations. The default interpretive rules of federal Indian law–the so-called Indian canons of construction of Indian treaties and Indian affairs statutes and the clear expression rules—elevate congressional and tribal policy prerogatives over uneducated judicial policy choices. 89Open this footnote Close this footnote 89 See generally Matthew LM. Fletcher, Federal Indian Law as Method, 95 U. Colo. L Rev. 375, 377-81 (2024). …Open this footnote Close These default rules derive from the foundational principle that the federal-tribal relationship is based on the duty of protection owed by the United States to tribal nations. The Court’s fidelity to these interpretative rules is inconsistent at best. These canons might appear to the Court to be “substantive canons,” interpretative tools now disfavored by a textualist Roberts Court. 90Open this footnote Close this footnote 90 See Evan D. Bernick, Are the Indian Canons Illegitimate? A Textualist- Originalist Answer for Justice Alito, Originalism Blog (Mar. 28, 2022), https://originalismblog.typepad.com/the-originalism-blog/2022/03 (defending the canons as “second-best originalism”). …Open this footnote Close

Labeling the Supreme Court’s Indian law jurisprudence as “judicial supremacy” is a common pastime of Indian law scholars, 91Open this footnote Close this footnote 91 E.g., Philip P. Frickey, (Native) American Exceptionalism in Federal Public Law, 119 Harv. L. Rev. 431, 460-65 (2005); Alex Tallchief Skibine, Formalism and Judicial Supremacy in Federal Indian Law, 32 Am. Ind. L. Rev. 391 (2008). …Open this footnote Close but given the Court’s arrogation of power to itself, the epithet is correct.

III. Toward Specialized Judges

There is a solid case to be made for requiring specialization for Article III judges hearing Indian law cases.

I rely heavily on former federal judge Diane Wood’s essay supporting generalist judges, 92Open this footnote Close this footnote 92 Diane P. Wood, Generalist Judges in a Specialized World, 50 SMU L. Rev. 1755 (1997). …Open this footnote Close though I imagine she would disagree with my overall conclusion. Judge Wood helpfully identified the current specialization within Article III courts. There is the Federal Circuit, which hears appeals on intellectual property matters and money damages claims against the United States, certainly an odd grouping. There is the Foreign Intelligence Surveillance Court and the Court of International Trade. There are also specialized Article I courts, including bankruptcy courts and adjudicative bodies within federal agencies. Within the Department of the Interior, there already is the Interior Board of Indian Appeals, which has a limited, discrete jurisdiction.

The notion of a specialized Indian affairs court is not a new idea. Felix Cohen’s original draft of the bill that would become the Indian Reorganization Act of 1934 proposed a separate federal court on Indian affairs. 93Open this footnote Close this footnote 93 See Lawrence C. Kelly, The Indian Reorganization Act: The Dream and the Reality, 44 Pac. Hist. Rev. 291, 295-96 (1975). …Open this footnote Close In recent years, scholars have attempted to modernize and adapt similar proposals. 94Open this footnote Close this footnote 94 E.g., Michael C. Blumm & Michael Cadigan, The Indian Court of Appeals: A Modest Proposal to Eliminate Supreme Court Jurisdiction over Indian Cases, 46 Ark. L. Rev 203 (1993) (proposing to eliminate Supreme Court review of “Indian cases”); Eugene R. Fidell, Competing Visions of Appellate Justice for Indian Country: A United States Court of Indian Appeals or an American Indian Supreme Court, 40 Am. Indian L. Rev. 233 (2015-2016) (proposing a national, intertribal court); Gregory D. Smith & Bailee L. Plemmons, The Court of Indian Appeals: America’s Forgotten Federal Appellate Court , 44 Am. Indian L. Rev. 211, 214 (2019-2020) (proposing a federal Court of Indian Appeals). …Open this footnote Close None of these proposals, obviously, became law.

Judge Wood partly hinged her defense of generalist judges by emphasizing the rule of Chevron deference (at least in relation to hearing appeals from Article I courts). 95Open this footnote Close this footnote 95 See Wood, supra note 90, at 1765-66. …Open this footnote Close Judge Wood might not have, but I would expand that analysis to any appeal from a specialized federal agency decision such as the Environmental Protection Agency or the Nuclear Regulatory Commission. A generalist federal court judge deferring to the specialized expertise of the agency was not just the law, but a saving grace for generalized judges who do not know much about PFAS or low-level radioactive waste half-lives.

But Loper Bright Enterprises v. Raimondo killed Chevron deference, leaving us with Skidmore deference. 96Open this footnote Close this footnote 96 See 144 S. Ct. 2244, 2262 (2024). …Open this footnote Close Now, federal agencies with specialized expertise cannot expect their evidence-based decisions to prevail in court where an opposing party with opposing evidence is able to persuade a generalized judge that its evidence is better. But at least in cases of science-based decision-making, one hopes the judiciary will be reasonably effective at assessing evidence that is peer-reviewed.

Indian affairs is different. There are 574 federally recognized Indian tribes in the United States. 97Open this footnote Close this footnote 97 Indian Entities Recognized by and Eligible to Receive Services from the United States Bureau of Indian Affairs, 89 Fed. Reg. 944 (Jan. 8, 2024). …Open this footnote Close The largest tribal nation, the Navajo Nation, has 400,000 members and a land base the size of Ireland or West Virginia. 98Open this footnote Close this footnote 98 Simon Romero, Navajo Nation Becomes Largest Tribe in U.S. After Pandemic Enrollment Surge, N.Y. Times (May 21, 2021), https://perma.cc/4A87-8C2Z. …Open this footnote Close The Muscogee Nation has more than 100,000 members and a very large land base, too, but the tribe and its citizens own only a small portion of that land base. 99Open this footnote Close this footnote 99 .The Muscogee Nation; https://perma.cc/3EQU-FBTE. …Open this footnote Close Some tribes are resource-rich, most others are close to broke. Scholars study some tribes more than others, and some tribes reveal more information about themselves than others. Every tribe is different.

The Supreme Court almost always essentializes all tribes as being the same. The body of evidence assessed by this generalist court is provided only by parties that have some stake in the outcome, often evidence provided by amici curiae that was not introduced into the record below. This is what a generalist judge does. They learn by reading. And a generalist judge has little background or expertise to assess the evidence presented to them. A decision affecting one tribe tends to affect all tribes, no matter the varying conditions on the ground.

Worse, this Court frequently rejects the both the specific and general policy choices made by Congress. The default interpretative rules of federal Indian law are supposed to guide the judiciary in its deference to Congress, but outside of treaty rights cases, the Court rarely takes these interpretive rules seriously.

The end of Chevron deference, the rise of the major questions doctrine, and the skepticism toward “substantive” interpretive canons further ensures that the Court will run Indian affairs, not Congress.

* * *

There are hundreds of specialized Indian law judges. For the most part, they work as tribal judges. There are also the Interior Board of Indian Appeals judges and a small handful of Article III federal judges (a few of them are tribal citizens) who actually had a significant Indian law practice before hitting the bench.

I suggest Congress establish a pool of Article III judges who are experts in federal Indian law and are certified by (perhaps) the Senate Judiciary and Indian Affairs Committees. These judges must show extensive practice experience in federal Indian law and (hopefully) American Indian tribal law, either as an advocate or a judge. From the current body of Article III judges, perhaps only a very small handful qualify. Of course, this must necessitate confirmation of more Article III judges to fill this pool. There are private attorneys who handle complex commercial transactions involving tribes, state, federal, and tribal lawyers with extensive experience. The editorial boards of Cohen’s Handbook on Federal Indian Law, the Conference of Western Attorneys General’s American Indian Law Deskbook, and the (former) advisers to the American Law Institute’s Restatement of the Law of American Indians are full of subject matter experts. One hopes it would even diversify the federal judiciary further, if nothing else, in terms of subject matter expertise. Whenever a federal district court case is filed that involves a tribal or Indian party and involves an Indian affairs-based legal question, the parties would choose from the pool of available judges. If the parties are unlikely to agree, arbitration-style judicial selection—where the parties each select one judge and those two select the third—could be used. On appeal, the parties would choose from the pool to select three judges. This is already radical, but I would go further and continue to use the pool to allow the parties to select Justices to hear Supreme Court-level appeals.

All of this is completely viable under the US Constitution already. Congress can create lower courts as it sees fit. In 1946, Congress created the Indian Claims Commission, 100Open this footnote Close this footnote 100 Act of August 13, 1946, ch. 959, 60 Stat. 1049. …Open this footnote Close eventually moving those cases into the federal claims court in 1976. 101Open this footnote Close this footnote 101 Act of Oct. 8, 1976, Pub. L. No. 94-465, 90 Stat. 1990. …Open this footnote Close As for the Supreme Court, there is precious little text that controls on creating a separate pool of Article III judges to hear Supreme Court cases in a given subject area like Indian law. 102Open this footnote Close this footnote 102 See Const. Art. III, § 1 (noting that there must exist a “supreme” court but not detailing the number of justices). …Open this footnote Close There have been between five and ten Supreme Court justices—the number is set by Congress (though there must be one Chief Justice). 103Open this footnote Close this footnote 103 See FAQs-General Information, Supreme Court of the United States, https://perma.cc/HP27-7HE8 (archived May 25, 2025). …Open this footnote Close It takes the political will of Congress and five votes on the Supreme Court to confirm a statute’s constitutionality.

* * *

I have personally served on an arbitration panel to address a conflict over a Class III Indian gaming compact between a tribe and a state. The compact required each party to select an arbitrator. As you can imagine, the tribe selected me, an Indian law expert. The state selected an arbitrator with extensive arbitration experience but relatively little Indian law experience. Between us two arbitrators, we were to select a third arbitrator. We asked the tribe and the state, if they agreed, to select a pool of arbitrators for us to choose from. We were happy to see a select list of potential arbitrators. We selected the one who happened to be the leading scholar on Indian gaming in the nation. That person ultimately wrote the opinion for the arbitral board. It was brilliantly done.

I already imagine how this would work in the real world. A tribe and a state are litigating in federal court. On appeal, the tribe chooses Allie Maldonado, who currently sits on the Michigan Court of Appeals. Judge Maldonado is a citizen of the Little Traverse Bay Bands of Odawa Indians (LTBB), former LTBB in-house counsel, and former LTBB Chief Judge. 104Open this footnote Close this footnote 104 Fourth District Judges: Court of Appeals; Michigan Courts; https://www.courts.michigan.gov/courts/court-of-appeals/judges/current-judges/fourth-district-judges/. …Open this footnote Close The state chooses Michael Gadola, current Chief Judge of the Michigan Court of Appeals. Chief Judge Gadola formerly served as governor’s counsel for the State of Michigan and assisted in the negotiation of the 1993 Michigan tribal-state gaming compacts. 105Open this footnote Close this footnote 105 Id. …Open this footnote Close They meet and select a third judge, John Wernet, former governor’s counsel (same office as Gadola) and former in-house counsel for the Sault Ste. Marie Tribe of Chippewa Indians. 106Open this footnote Close this footnote 106 Kate Fort, Big Michigan News: John Wernet to Be Sault Tribe’s General Counsel, Turtle Talk (Jun. 2, 2011) https://perma.cc/L858-NU96. …Open this footnote Close All three have substantial experience and knowledge about Indian law. All three have substantial experience and knowledge about the state’s interests. At least two of them have substantial experience and know about tribal interests. Whichever party prevails, this appellate court can be expected to deliver a knowledgeable and useful opinion, far more likely to serve as a useful guide to the parties going forward and as compelling and persuasive precedent.

* * *

I have come to expect that when a judge openly muses that Indian law is difficult or confusing, 107Open this footnote Close this footnote 107 E.g., Haaland v. Brackeen, 143 S. Ct. 1609, 361 (2023) (Thomas, J., dissenting) (lamenting “the confusion that Kagama and its progeny have engendered”); United States v. Lara, 541 U.S. 193, 214 (2004) (Thomas, J., concurring in the judgment). …Open this footnote Close or in Justice Thomas’ unfortunate turn of phrase, “schizophrenic,” 108Open this footnote Close this footnote 108 Lara, 541 U.S. at 219 (Thomas, J., concurring in the judgment) (“Federal Indian policy is, to say the least, schizophrenic.”). …Open this footnote Close it means that judge does not like the outcome as a policy matter or the outcome does not comport with that judge’s political commitments. It’s time to relieve those frustrated, confused judges of the burden of deciding Indian law cases.

* Harry Burns Hutchins Collegiate Professor of Law and Professor of America Culture, University of Michigan. Citizen, Grand Traverse Band of Ottawa and Chippewa Indians. Miigwetch to Wenona Singel, Annalisa Kingsbury Lee, Angela Riley, and Jane Schacter.