The Native American Rights Fund (NARF), the National Congress of American Indians, and the Northern Plains Indian Law Center at the University of North Dakota School of Law (NPILC) have called for the Administrative Office of the United States Courts to treat federally-recognized Tribal Nations as they treat other sovereign governments in the rules of the appellate courts.
Why must Tribal governments ask permission to file yet U.S. appeals courts grant federal and state automatic access?
“Tribal governments are governments, and we urged the U.S. Circuit Courts of Appeals to dispel confusion and apply the law consistently without additional barriers that may restrict Tribal Nations from submitting amicus briefs,” said NARF Executive Director John Echohawk.
In the U.S. Supreme Court, Tribal Nations are treated the same as the federal and state governments when it comes to amicus briefs (non-party briefs intended to provide context to a case before the Court). Even county, city, and other local governments get the same consideration. But it’s different in the Federal Circuit Courts of Appeal, where Rule 29 of the Federal Rules of Appellate Procedure treats Tribal governments as if they were “non-governmental organizations.”
The disparity restricts how and when Tribal Nation governments gain a voice in lawsuits that impact them. Tribal governments may file an amicus brief only with the court’s permission or by receiving permission from all of the parties (including those opposed to including the Tribal perspective). Federal and state governments, on the other hand, do not need to ask permission from anybody, because they have an unqualified right to file amicus briefs.
“Tribal governments are distinct, independent political entities and should have the same access extended to other independent political entities,” said Larry Wright, Jr., executive director of the National Congress of American Indians, a national, inter-Tribal organization where member Tribal Nations convene on policy matters that impact Tribal sovereignty. “The U.S. Supreme Court has already taken a step towards inclusion of Tribal governments, and we hope the rest of the court system will follow. Tribal Nations have a rightful place in the family of governments in the United States, and this would be a tangibly important recognition of those rights.”
The NPILC recruits and trains both Native and non-Native attorneys to practice federal Indian law and Tribal law and to represent Tribal Nations in U.S. courts. “Treating Tribal Nation governments the same as the other sovereign governments in the United States would create consistency and clarity, and would remove an artificial barrier to entry that the justice system imposes only on Tribal governments,” said Dan Lewerenz, Assistant Professor of Law at the University of North Dakota School of Law and an affiliate of the NPILC. “It was a big step for the U.S. Supreme Court to treat Tribal governments like it does other sovereigns. It’s time for the U.S. Circuit Courts of Appeal to take that step, too.”
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