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Indigenous Peoples often remain “forgotten minorities”—and largely ignored by judicial scholarship (Pommersheim Reference Pommersheim2012)—yet they regularly appear in federal and state courts.Footnote 1 The struggles Indigenous Peoples face are unique from other minority groups living in the United States because they exist in an odd semisovereign status. While the US Constitution outlines that First Nations are sovereign bodies through the Indian Commerce Clause and treaty-making authority, current federal law and policies hold that tribes are simultaneously sovereign and not sovereign. The case law determining indigenous policy is “schizophrenic.” Justice Clarence Thomas notes the rampant inconsistencies when he states, “In my view, the tribes either are or are not separate sovereigns, and our federal Indian law cases untenably hold both positions simultaneously” (concurring in United States v. Lara, 541 U.S. 193 [2004]). This unique status directly affects the 6.8 million Indigenous Peoples living in the United States, or 2% of the nation’s population.Footnote 2 Twenty-one states have 100,000 or more Indigenous Peoples: Alaska, Arizona, California, Colorado, Florida, Georgia, Illinois, Michigan, Minnesota, New Jersey, New Mexico, New York, North Carolina, Ohio, Oklahoma, Oregon, Pennsylvania, Texas, Virginia, Washington, and Wisconsin. Unlike other minoritized groups, Indigenous Peoples’ survival as sovereign political nations depends entirely on the legal and political recognition of the colonizing state. While the United States originally offered such (albeit ambivalent) legal recognition through federal law, Indigenous Peoples have since been degraded from independent, sovereign nations to ethnic minorities consumed by the states within which they reside (Reid and Curry Reference Reid and Curry2019).
The dominant trend in federal Indian law for much of the 20th century has been the continuous—and near complete—delegation of federal power over Indigenous Peoples to the states, creating a situation in which First Nations are forced to interact with state governments, ceding their status as “domestic dependent nations.”Footnote 3 This delegation of power to state governments has created a situation in which the interests of state governments and Indigenous Peoples often conflict, especially as states are politically and economically incentivized to erode indigenous sovereignty to benefit the state and non-Indian residents. These conflicts force the sovereignty of tribes to be in constant flux and require frequent litigation in state courts.
Because Indigenous Peoples are a minority population and are widely spread out over the country, democratic electoral mechanisms have typically offered limited ability to secure indigenous rights and interests. Hence, Indigenous Peoples are forced to use state courts because of majoritarian electoral realities as well as federal policy delegations. Indeed, state courts are virtually the only formal mechanism through which Indigenous Peoples can secure their rights.Footnote 4 Because of this reality, analyses on judicial decision-making in indigenous cases are crucial.
Despite the regularity of indigenous cases in the US courts, we know virtually nothing about judicial decision-making in these cases. Qualitative studies trace the impact of judicial outcomes on First Nations (Duthu Reference Duthu2008; Pommersheim Reference Pommersheim2012; Ball Reference Ball2016), but these studies examine only the US Supreme Court and largely ignore the judicial decision-making process. With the near total devolution of indigenous policy to states (Reid and Curry Reference Reid and Curry2019), state courts determine the extent to which First Nations retain their sovereignty. Far from merely academic, these courts literally determine the livelihood and ability of First Nations to survive as political and cultural entities. While courts that enjoy a large degree of judicial independence are often heralded as the guardians of rights, indigenous cases illustrate the potential tension between their role as guarantors of rights versus the pressure to act as an arm of the colonizing state—designed and built to limit indigenous sovereignty and power. Examining these cases can thus introduce new paradigms to judicial scholarship (Blackhawk Reference Blackhawk2019) and aid in a better understanding of the judiciary’s competing roles. As such, we offer the first systematic, quantitative analysis on the predictors of indigenous success at state supreme courts by using an original data set consisting of all cases involving Indigenous Peoples or First Nations tribes before state supreme courts from 1995 to 2010.
We find that traditional variables that dominate the study of law and courts have no statistically significant effect on judicial decision-making in these cases. First, judicial ideology does not affect how courts decide these cases. Second, controlling for numerous treaties and laws that define the relationships between federal, state, and tribal governments, we discover that no indicator of the law affects how courts decide these cases. Statistically, law and ideology do not matter.
Instead, we find that Indigenous Peoples are more likely to receive positive judicial outcomes when (1) the judiciary is elected and (2) the indigenous population of the state is relatively high. While this confirms important findings concerning judicial representation (Brace and Boyea Reference Brace and Boyea2008; Caldarone, Canes-Wrone, and Clark Reference Caldarone, Canes-Wrone and Clark2009; Romano and Curry Reference Romano and Curry2019) and identity politics (Landa and Duell Reference Landa and Duell2015), it does not paint a favorable picture for First Nations that regularly must battle for their sovereignty and basic rights in state supreme courts. We also find that Indigenous Peoples are more likely to be successful when they are resource rich or the disparity between the indigenous party and the opposing party is low.
The article proceeds as follows: we first offer a novel theory that synthesizes representation theory and judicial selection models to suggest the conditions under which First Nations are most likely to obtain successful judicial outcomes, while simultaneously taking into account their unique legal history and extant theories of judicial decision-making. We then test this theory using original data as the first quantitative analysis of indigenous cases in the United States and first empirical analysis of indigenous law in state supreme courts. We then conclude by highlighting the contribution of this analysis to both judicial scholarship and indigenous politics.
Judicial Selection and Representation Theory
The delegate model of representation tells us that electoral representatives should conform to the majority opinion that is within their population. We know, however, that this issue representation is dependent on the demographics of the district (Adler, Cayton, and Griffin Reference Adler, Scott and Griffin2018). As such, as the size of a discrete population, like that of Indigenous Peoples, grows within a state, we should expect their interests to be more likely to be represented. Because Indigenous Peoples are residents and constituents of states, the larger the indigenous population within the state, the more likely the political power of these Nations as constituents may drive courts to represent their interests.
We further suggest that the political power of First Nations to improve judicial outcomes is most likely in states that retain judges by elections. Romano and Curry (Reference Romano and Curry2019) theorize that the variation across retention institutions weakens or strengthens the representative connection between the judiciary and the electorate. One of the cornerstones of work on state supreme courts is the understanding that elected courts behave differently from appointed courts, mostly because these courts consider their audience retention when acting (Curry and Fix Reference Curry and Fix2019).Footnote 5 For example, elected courts have been found to be more likely to sentence individuals to death because the death penalty is generally popular and easily understood (Hall Reference Hall1987, Reference Hall1995; Brace and Boyea Reference Brace and Boyea2008). Similarly, nonpartisan judges are more likely to decide abortion cases consistent with public opinion than judges selected by other methods (Calderon, Canes-Wrone, and Clark Reference Caldarone, Canes-Wrone and Clark2009). These audience-based effects not only determine the decision direction of the court but extend to how an elected judiciary crafts the language of their decision (Romano and Curry Reference Romano and Curry2019). Elected judges behave like representatives on salient issues. Hence, if a state has an elected judiciary and a large population of Indigenous Peoples, it follows that we should expect those courts to take the desire of a sizable constituency into account. Therefore, the effect of indigenous population size may be contingent on state court appointment/retention procedures because elected judges are more likely to consider the effects of their decisions on their native audiences, especially as their indigenous constituents increase in size relative to the nonnative population.
While appointed judges may be protected from public backlash when supporting minority groups, appointed judges have no institutional incentive to support First Nations. Importantly, appointed judges are beholden to state government officials who determine their retention (whether executive or legislative), and these state officials are the ones who risk losing the most in indigenous cases because of the conflict of interests between state governments and Indigenous Peoples. Successful outcomes for First Nations almost always imply a loss for state governments, whether pertaining to economic revenue and taxes, environmental resource protection and consumption, or indigenous sovereignty power relative to state power. We thus anticipate that the protection of indigenous rights will be dependent on the size of the indigenous population when judges are elected.
Hypothesis 1. States that elect their judges should be more likely to support indigenous litigants as the percentage of Indigenous Peoples within the population grows.
Party Capability
Since the publication of Galanter’s (Reference Galanter1974) treatise, there has been widespread acceptance that party capability influences case outcomes. In essence, “the haves” do, in fact, come out ahead. This finding has been replicated across numerous courts and contexts (Haynie Reference Haynie1994; Songer, Sheehan, and Haire Reference Songer and Sheehan1999; Szmer, Songer, and Bowie Reference Szmer, Songer and Bowie2016). While tribes are often repeat players, they are rarely “the haves,” especially when facing a state government. First Nations often have fewer disposable resources to use, which can limit their ability to acquire adequate legal representation, fund intensive legal battles, and obtain experience before courts. State governments, however, are resource rich.Footnote 6
For instance, the 2010 census reveals that the per capita income of Indigenous Peoples living on reservations is less than half the US average and consistently falls far below that of Hispanics, African Americans, Asian Americans, and Indigenous Peoples living elsewhere—despite the fact that an estimated 92% of Indigenous Peoples reside on reservations with gaming operations.Footnote 7 Over 30% of indigenous families live in poverty as opposed to 10% of nonindigenous families living in poverty. Unemployment rates for Indigenous Peoples remain at nearly 20% (compared to 8% for nonindigenous peoples). Only 8.4% of Indigenous Peoples obtained a college degree (compared to 29% of nonindigenous peoples; Akee and Taylor Reference Akee and Taylor2014). Hence, Indigenous Peoples face severe economic realities in terms of income, unemployment, and educational attainment. These realities directly limit their ability to successfully pursue costly litigation. In light of these realities, we offer the following hypothesis:
Hypothesis 2. Indigenous litigants facing resource-rich opponents are less likely to receive support from the court.
Often, however, Indigenous Peoples do not come to state courts alone. Because of the unique wardship status federally recognized tribes enjoy with the federal government, the United States may join with the indigenous tribes as a party in the suit. This occurs when the federal government has a vested interest in the outcome of the case. The United States is the consummate repeat player (Boyd Reference Boyd2015; Szmer et al. Reference Szmer, Songer and Bowie2016) and has significant resources at its disposal. When the federal government allies with Indigenous Peoples in state courts, those litigants should share that advantage, transforming the indigenous litigant from a “have not” to a “have.” Thus we offer the following expectation:
Hypothesis 3. When supported by the federal government, indigenous litigants are more likely to win before state supreme courts.
Our final hypothesis, derived from disparities in party capability, recognizes the difference between indigenous tribes and individual indigenous litigants. While indigenous tribes may not generally be considered resource rich, they certainly command more resources than individual indigenous litigants in most cases. Many tribes have attorneys on retainer, have monetary resources beyond most individuals, and have a higher level of experience in litigating. This resource disparity should significantly affect case outcomes.
Hypothesis 4. When indigenous tribes are party to a case, they are more likely to prevail than individual indigenous litigants.
Data and Method
Our data consist of all cases involving Indigenous Peoples before state supreme courts from 1995 to 2010. To compile this data set, we began with the universe of cases in text format (Hall and Windett Reference Hall and Windett2013).Footnote 8 The opinions were then processed through a cleaning/scouring Python code, which recorded relevant information such as date, citation, majority opinion author, and so forth. These opinions were then processed through Lexicoder (Daku, Soroka, and Young Reference Daku, Soroka and Young2015) using a custom-made dictionary to indicate the presence of indigenous law or litigants.Footnote 9 Each case that had a possibility of involving indigenous litigants (which we defined as at least three mentions of a word or phrase within our dictionary) was then read to determine whether the case involved an indigenous litigant. This left us with a total of 495 cases from an initial data set of over 130,000. During this reading, each case was coded manually for numerous variables located within the text of the decision.
Our dependent variable measures whether the indigenous party was successful in the outcome of the cases. Of our 495 cases, Indigenous Peoples win just over 38% of the time, or 189 cases. To give this number context, individuals and businesses that face indigenous litigants are successful in 43% of cases, while local governments and state governments are successful against indigenous parties around 70% of the time.
Our main independent variable of interest is the size of the indigenous population conditional on the method of retention by which courts maintain their membership (Brace and Boyea Reference Brace and Boyea2008; Romano and Curry Reference Romano and Curry2019). We capture the size of the indigenous population within a state using a variable for the per capita indigenous population. We choose not to use the number of federally recognized tribes with a state because this measure will distort reality, as California has numerous tribes even though Indigenous Peoples do not make up a sizable population within the state. Also, considering that Hawaiian natives are not federally recognized, the number of federal tribes would discount them entirely. We interact this term with a dummy variable for judicial elections. Courts that are popularly retained may be more likely to protect indigenous rights, and this may be further dependent on the population of Indigenous Peoples within the state. As we expect no difference between partisan and nonpartisan elections, we combine the two for a dichotomous variable that measures whether a court is retained via contested elections.
We manually coded for variables related to variance in party capability. Among these are dichotomous variables to indicate (1) whether an indigenous tribe or indigenous individual was the party and (2) whether the US government was supporting the indigenous litigant as amicus. In addition, we include a measure of party capability disparity as an ordinal variable ranging from 1 to 4 going from lowest resources to highest resources (individual, business, local government, state government) for each litigant.Footnote 10
We control for legal influences by identifying a variety of laws that apply to Indigenous Peoples, which should influence the outcome of cases. As treaties were the primary means by which the federal government defined the relationship between the First Nations and the federal government until 1871, a citation to treaty law should increase the likelihood of an outcome in favor of indigenous interests. While not all First Nations have signed treaties with the United States, more than 370 treaties exist between the federal government and federally recognized Indigenous Peoples (Saul Reference Saul2016).Footnote 11 These treaties broadly recognize the distinctive nature of specific First Nations’ sovereignty and ultimately provide a stronger baseline of protection than for Nations that have not signed similar treaties. While some of these treaties were allowed to “degrade” or become diminished by congressional action, they may still be held as binding international law (Wilkins and Lomawaima Reference Wilkins and Lomawaima2002). Hence, we expect that these treaties offer increased protection to Indigenous Peoples than otherwise afforded by courts. In essence, we expect that these treaties create at least a baseline of protections that aids indigenous litigants relative to tribes that have no such treaties. We thus code for the presence of a citation to an indigenous treaty in the majority opinion through a dichotomous indicator. Ideally, this variable would come from the parties’ briefs rather than the majority opinion, but Lexis does not have an exhaustive catalog of party briefs, especially from older cases. It may be the case that judges are more likely to cite a treaty when it is influential in the outcome of a cases. Examining our data, there are 28 cases with citations to treaties. Of these, in only 11 cases does the indigenous party prevail, so we have reason to assume that any relationship between these variables is not endogenous.
Another law that impacts indigenous ability to litigate is the US Supreme Court decision in Seminole Tribe v. Florida, 517 U.S. 44 (1996), removing the ability of tribes to sue states in federal courts for not engaging in good-faith negotiations under the Indian Gaming Rights Act of 1998 (IGRA) without state consent (Rand Reference Rand2007; Fletcher Reference Fletcher2014).Footnote 12 States often exercise this political advantage by sometimes refusing to negotiate (Rand Reference Rand2007) and requiring new terms of agreement (Rausch Reference Rausch2007). Hence, this Supreme Court decision had the practical effect of further empowering states relative to tribes by creating the situation in which tribes could receive no legal redress when states fail to negotiate in good faith and then invoke their Eleventh Amendment immunity to dismiss any case the tribe brought against them (Light and Rand Reference Light and Rand2009). States’ realization of this outcome emboldened them to exercise this political advantage, and when a case was not automatically dismissed, the disputes had to be pursued in state courts. This venue is favorable for states and severely disadvantages First Nations because in many cases the Nations themselves are not even able to participate in their legal disputes over the tribe-state compacts.Footnote 13 Hence, we examine whether Seminole systematically hindered indigenous success in state supreme courts by accounting for the changing legal landscape post-Seminole through including a dichotomous variable to signify cases occurring after 1996.
Finally, we control for PL-280 jurisdiction. Since the end of treaty making in 1871, federal legislation served to define indigenous policy and relations. Congress unilaterally passed Public Law 83–280 (PL-280) in 1953, which originally gave six states (Alaska, California, Minnesota, Nebraska, Oregon, and Wisconsin) local jurisdiction to prosecute crimes such as murder, manslaughter, rape, assault with the intent to kill, arson, burglary, and larceny. Furthermore, it shifted much of federal civil jurisdiction to the states, thereby allowing citizens of a state to sue individuals living on reservations. Since its initial passage, Arizona, Florida, Idaho, Iowa, Montana, Nevada, North Dakota, South Dakota, Utah, and Washington have undertaken some of this PL-280 jurisdiction as well. PL-280 contravenes the sovereignty of First Nations by giving states power over them (Anderson Reference Anderson2012), and Indigenous Peoples who come under PL-280 jurisdiction experience increased crime rates and substantively lower incomes (Dimitrova-Grajzl, Grajzl, and Guse Reference Dimitrova-Grajzl, Grajzl and Guse2014). PL-280 is a specific grant of power to the states, shifting criminal and civil jurisdiction from federal courts to state courts. We thus expect that Indigenous Peoples fare worse in states enforcing PL-280, even in states that elect their judges. While an elected judiciary in a state with a sizable indigenous population may reduce the effect of PL-280, there will ultimately be more indigenous individuals under state court jurisdiction. We include a dichotomous indicator for states given PL-280 jurisdiction.
We also take into account judicial ideology as it has traditionally been a strong predictor of case outcomes, especially in cases involving civil rights and liberties (Segal and Cover Reference Segal and Cover1989; Martin and Quinn Reference Martin and Quinn2002; Segal and Spaeth Reference Segal and Spaeth2002)—although this effect is less prominent on state supreme courts (Brace, Langer, and Hall Reference Brace, Langer and Hall2000; Bonica and Woodruff Reference Bonica and Woodruff2015; Windett, Harden, and Hall Reference Windett, Harden and Hall2015). Historically, more liberal judges have been more likely to expand protections of civil rights and liberties, which in this population of cases would mean an increased likelihood to support indigenous parties. We control for the average ideology of the majority using the Windett et al. (Reference Windett, Harden and Hall2015) scores (SDirt).Footnote 14 The SDirt scores leverage two sources of information, the justices’ votes and campaign finance scores (Bonica and Woodruff Reference Bonica and Woodruff2015), to develop a dynamic measure of ideology, which can vary by year and is consistent across state courts. We take the average of each member of the majority opinion as our measure of ideology, where lower values indicate a more liberal court majority.Footnote 15
We include a variable measuring whether the court hearing the case has discretionary jurisdiction since we assume that when a court has the ability to decide what cases it will hear, if it chooses to hear a case involving indigenous rights, it will be more likely to protect those rights. We also control for out-of-state litigants. Indigenous parties who are before courts outside of the state(s) where their reservation resides are encountering a judicial system with which they are not familiar. While indigenous tribes have typically developed relationships with the government of the state within which they reside, this is not true when they are out of state.Footnote 16 Since we aim to test representation theory, we should control for instances when the indigenous party cannot be a constituent.
Finally, we include two controls for different case types as decision-making in these cases. First, we control for criminal cases (
) because these cases are always against local or state governments and the indigenous party is almost always an individual, which may augment the party capability relationship. Second, we control for cases involving the Indian Child Welfare Act (ICWA;
) because the law gives tribes priority to intervene in child custody/welfare cases in which an indigenous heritage exists. In the area of criminal cases, indigenous parties only win 22% of the time, while in ICWA cases indigenous parties prevail around 30% of the time. Considering the general win rate in our universe of cases is 38%, controlling for these two issue areas, both of which are mutually exclusive and thus constitute a sizable amount of our data, is a necessary precaution.
Since our dependent variable of indigenous success is dichotomous, we use a logistic regression to assess the multivariate relationship. Consistent with other work on state courts, we cluster the standard errors on the state to account for state-by-state variations, which will likely be magnified when looking at small subsets of cases such as those involving Indigenous Peoples.
Results
From 1995 to 2010, 495 cases across 41 states had an identifiable indigenous tribe or indigenous litigant. The nine states with no cases in their court of last resort involving Indigenous Peoples are Alabama, Delaware, Georgia, Indiana, Missouri, New Jersey, Pennsylvania, Tennessee, and Texas. Of the 41 states that did have indigenous cases, Alaska had the most at 92 cases, constituting almost 19% of the entire data set. Two other states had more than 50 cases: Montana at 74 and South Dakota at 55. Figure 1 shows the frequency of cases from each state.
Number of cases involving indigenous peoples by state
Turning to the results of the logistic regression model predicting court success for indigenous claimants, we find no evidence that the legal landscape plays a significant role in the outcome of cases involving Indigenous Peoples (see table 1). Functionally, Indigenous Peoples’ success in state supreme courts is not dependent on any legal aspect measure in our analysis, whether measured as treaties or the applicable laws. While PL-280 does not appear to hinder indigenous claims at the state supreme court level, treaties do not improve the likelihood that indigenous rights would be recognized and protected by state supreme courts.Footnote 17 Furthermore, it does not appear that decisions that took place after Seminole were affected by the US Supreme Court’s decision.Footnote 18
Logistic Regression of Success by Indigenous Peoples in State Courts, 1995–2010
Note.—N = 495. This model distinguishes between decisions before Seminole (0) to 1 year post-Seminole (1). We estimated the same model with post-Seminole coded as all cases immediately after the decision date as well, and the results do not substantively change.
* p < .05, two-tailed test of significance.
Similarly, we find that ideology, measured as the average of the majority coalition, does not influence indigenous success. To test this finding’s robustness, we measured ideology in two additional ways: the average court ideology and the ideology of the opinion author. The model did not substantively change, nor did ideology ever reach statistical significance. This is likely due, at least in part, to the differences in law across the various states and First Nations. When we expect ideology to have an effect, it is in an area where the law is consistent across jurisdictions. Indigenous law is precisely the opposite, sometimes with variations even within states, due to the different foundational status of indigenous treaties. That ideology does not have an effect in this area largely has to do with the idiosyncratic nature of this area of law. Thus, we have a circumstance in which neither ideology nor law is affecting the outcomes of cases, but the model still performs well, considering its other variables.
We find strong evidence that party capability plays a significant and substantive role in the success of Indigenous Peoples before state supreme courts. As predicted, as party capability of the opponent increases, Indigenous Peoples are less likely to win their case. If an indigenous party is facing an individual, the indigenous party is likely to succeed over 55% of the time. However, as shown in figure 2, when Indigenous Peoples face a business, their likelihood for success is only slightly above 50%. Indigenous success decreases to below 30% when they face a state government.
Postestimation box plot of success likelihood by opposition
While we do not find that Indigenous Peoples are more likely to win when the United States supports them as an amicus, we do find significant evidence that Indigenous Peoples are more likely to be successful when they pool their resources. When indigenous individuals come before state supreme courts without the support of their tribe or native village, we find that they prevail in their case less than 30% of the time. When a tribe or native village appears before the court, they leverage their collective resource advantage and prevail in cases slightly over 50% of the time, as shown in figure 3. There could be two reasons for this relationship. First, consistent with our other findings, this could be another example of party capability playing a determinant role in the outcomes of Indigenous Peoples. However, this could also be recognition of the special legal status accorded to Indigenous Peoples as tribal communities (rather than individuals) in the American legal system. Indigenous tribes in the American system hold collective rights pursuant to their collective entities rather than individual rights.Footnote 19 As both party capability and tribal litigant attain statistical significance in our model, we believe each concept is exerting an independent effect on the likelihood of a win.
Postestimation box plot of success likelihood by indigenous litigant type
We do not find independent effects for size of indigenous population within a state or the method of selection and retention used by the states. However, there is evidence that the success of Indigenous Peoples is partially dependent on the size of their population relative to that of the rest of the state in states that retain their judges by contested election. Substantively, this means that Indigenous Peoples in states that have large indigenous populations and have elected judiciaries experience greater success than Indigenous Peoples in states with appointed courts or courts retained by retention elections. Figure 4 displays this relationship, reflecting that as the indigenous population increases, states that retain their judges by election become increasingly more likely to support indigenous claims. Indeed, once approximately 10% of the population is indigenous, then indigenous claims are supported 50% of the time. Courts that are either appointed or retained through uncontested retention elections appear invariant to the size of the indigenous population of the state.
Postestimation plot of success likelihood by indigenous population and judicial retention method.
Finally, demonstrating the necessity of controlling for issue areas in examinations of judicial decision-making, we find that both of our controls reach statistical significance, although not in the direction we anticipated. When Indigenous Peoples are involved in criminal cases, they are only likely to win less than 20% of the time. Most decisions in criminal cases that reach state supreme courts support the government position, so this finding itself is not shocking. Looking at our control for ICWA cases, the direction of the effect was not anticipated. We find that in cases involving the ICWA, Indigenous Peoples prevail around 30% of the time. Considering that the ICWA is designed to give significant advantages to tribes in child custody cases in state courts, we anticipated that the relationship would be the opposite of what we find, where indigenous litigants are more likely to prevail. Here we have an example in which the law exists solely to benefit Indigenous Peoples, and yet we find that in cases involving the ICWA, indigenous populations remain disadvantaged.
Conclusion
We find that two of the most long-held theories on judicial decision-making simply do not hold true when looking at cases involving indigenous law, reflecting their unique legal environment. Our variables measuring ideology and law have no statistical bearing on success in state supreme courts. As Justice Thomas alludes, this is likely partially because of the inconsistent nature with which federal law treats Indigenous Peoples. That the law treats Indigenous Peoples as simultaneously sovereign and not sovereign does not provide consistent guidance to judges asked to resolve these complex issues. If the law itself is inconsistent, we should not expect ideology to be a significant predictor of success, as ideology is a lens by which judges interpret the case stimuli vis-à-vis the applicable laws. If there exist idiosyncrasies with either case facts or the law, ideology cannot serve as a meaningful predictor of how judges will decide.
However, party capability theory, recognizing the resource disadvantage experienced by minority groups in courts, strongly predicts how Indigenous Peoples fare before state supreme courts. As the resources of the opponent increase, indigenous litigants find themselves at a considerable disadvantage (Galanter Reference Galanter1974). While indigenous groups are about equally as likely as their individual and business opponents to win, they overwhelmingly lose to local and state governments. This relationship with opponent capability has significantly detrimental effects on indigenous sovereignty, especially when it must be litigated against the state government. Yet, this can be mitigated when one or more indigenous litigants who appear before the court represent a native community rather than themselves as individuals. Litigants seeking a collective claim are much more likely to be successful than individual indigenous litigants before the courts. While the way in which we measure party capability is a fairly blunt instrument, it gives us a very conservative measure of our hypothesis. That we detect a large substantive effect lends credibility to our claim that party capability is the driving force in indigenous litigation. Since the cases analyzed in this study include suits over tribal borders, membership, family welfare, water rights, policing, and governance, the resource disparity affects virtually every aspect of indigenous lives. Future projects in this area should try to measure the party capability of specific First Nations. Not all Indigenous Peoples share the same resources.Footnote 20 Indeed, some Nations are resource rich.Footnote 21 By measuring individual capability, we would get a more accurate picture of the success of Indigenous Peoples.
In addition to these substantial effects of resources, we find that when judges are retained by contested election, their likelihood to support indigenous litigants is conditional on the size of the indigenous population within the state. This conforms to the representative notion of elective judges (Brace and Boyea Reference Brace and Boyea2008; Romano and Curry Reference Romano and Curry2019). Yet, this means that indigenous groups that reside in states that do not retain their judges by contested elections have an immovable baseline. Regardless of the size of their population, in states that retain their judges through retention elections or reappointment there exists a weak representative attachment (Romano and Curry Reference Romano and Curry2019). Indigenous groups’ success in those states is thus invariant to the size of their population since the judges remain less accountable to a regular electorate. This result has some important policy implications since, while the populations of Indigenous Peoples cannot be altered, the judicial appointment and retentions procedures can. In order to improve indigenous rights, the judiciary must be accountable and responsible to state constituents. Nonetheless, this reform may only have limited effect in securing indigenous rights.
However, this implication poses normative challenges for Indigenous Peoples. If indigenous success before the judiciary is partially determined by judicial selection procedures that make Indigenous Peoples constituents of elected judges, then Indigenous Peoples face the dilemma of voting in these elections. Voting in these (and other US) elections may undermine the nationhood of these First Nations, where voting in US elections may represent submission to a foreign government and alienate Indigenous Peoples from their own governance (Corntassel and Witmer Reference Corntassel and Witmer2008, 63). Voting may further represent a threat of co-optation and assimilation in which indigenous agendas are altered to fit dominant norms within the state institutional structure, which effectively entrenches colonial government regimes and undermines indigenous agendas and decolonization strategies (Corntassel and Witmer Reference Corntassel and Witmer2008, 66–67). And yet, voting may be one of the most important or necessary ways to secure indigenous rights and interests.Footnote 22
Much of the history of Indigenous Peoples in the United States is a prolonged battle for sovereignty, and currently, as Justice Thomas points out, this battle is being waged in courtrooms. As federal law has shifted many of these issues to state oversight, these battles are taking place predominantly in state courts of last resort where, as this study demonstrates, their likelihood for success is unfortunately dominated by variations in judicial retention procedures and disparities of party capability.Footnote 23 Increasing financial and legal resources to Indigenous Peoples is crucial in their ability to assert their rights to sovereignty, dignity, and survival. Indigenous Peoples have long realized this and made efforts to acquire these resources through developing gaming operations, which provide a major source of economic development for some tribes (Taylor and Kalt Reference Taylor and Kalt2005), along with tourism and the sales of natural resources like petroleum, water, timber, wind, natural gas, and tobacco. They have further developed indigenous-based legal organizations, such as the Native American Rights Fund (https://www.narf.org/about-us/) and Dinébe’iiná Náhiiłna be Agha’diit’ahii (DNA) People’s Legal Services (https://dnalegalservices.org/about/) that offer legal assistance and representation as well as train future indigenous lawyers and offer community legal education. Yet, the extent of this systematic inequity and its effects has never before been systematically documented through empirical analysis. As such, we hope that this contribution compels scholars and citizens to acknowledge this reality and finally recognize that we cannot afford to forget Indigenous Peoples.
Appendix
We used Lexicoder (http://www.lexicoder.com/) to leverage a custom dictionary to parse all published state supreme court cases from 1995 to 2010 to identify cases that may include Indigenous Peoples as a party. We were conservative regarding the words and phrases we chose to include. Any case that had over a total of three words or phrases was read in its entirety to determine whether it should be included in the analysis. Our dictionary is below.
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