The Court of Indian Appeals: America’s Forgotten Federal Appellate Court

American Indian Law Review Volume 44 Number 2 2020 The Court of Indian Appeals: America’s Forgotten Federal Appellate Court Chief Judge Gregory D. Smith Bailee L. Plemmons Follow this and additional works at: https://digitalcommons.law.ou.edu/ailr Part of the Indian and Aboriginal Law Commons Recommended Citation Chief Judge Gregory D. Smith & Bailee L. Plemmons, The Court of Indian Appeals: America’s Forgotten Federal Appellate Court, 44 AM. INDIAN L. REV. 211 (2020), https://digitalcommons.law.ou.edu/ailr/vol44/iss2/2 This Article is brought to you for free and open access by University of Oklahoma College of Law Digital Commons. It has been accepted for inclusion in American Indian Law Review by an authorized editor of University of Oklahoma College of Law Digital Commons. For more information, please contact . THE COURT OF INDIAN APPEALS: AMERICA’S FORGOTTEN FEDERAL APPELLATE COURT* Chief Judge Gregory D. Smith** & Bailee L. Plemmons*** Table of Contents I. Introduction ....................................................................................... 212 II. A Short History Lesson on Tribal Courts ........................................... 214 III. The Court of Indian Offenses (What’s in a Name?) .......................... 218 IV. Overview of the Court of Indian Appeals ......................................... 223 V. Comparison of the Court of Indian Appeals with Other American Federal Appellate Courts ....................................................................... 230 VI. Conclusion ...................................................................................... 239 * This Article was scheduled for presentation by the primary author to the Comparative Law class at the University of Limerick School of Law in Limerick, Ireland on April 2, 2020. COVID-19 travel restrictions forced the presentation to be cancelled. The opinions expressed in this Article belong solely to the authors and do not reflect any formal, or informal, opinion of either the Court of Indian Appeals or any division of the U.S. Department of the Interior. The primary author wishes to thank Christina G. Bennett, Clerk of the Court of Indian Appeals, Miami Agency, for her insight and technical advice related to this Article. ** Gregory D. Smith, who resides in Clarksville, Tennessee, is the Chief Judge of the U.S. Department of the Interior’s Court of Indian Appeals, Miami Agency in Oklahoma. Chief Judge Smith is the primary author of this Article. He received a J.D. from the Cumberland School of Law, Samford University, in 1988 and a B.S. from Middle Tennessee State University in 1985. Judge Smith earned a graduate certificate in Native American Studies from Montana State University and several judicial education certificates from the National Judicial College, located at the University of Nevada – Reno. In May 2020, Chief Judge Smith completed a professional leadership certificate through Harvard University’s Kennedy School of Government, and he teaches for the National Judicial College. Besides serving on the Court of Indian Appeals, Judge Smith is a member of five different tribal appellate courts, in five different states (Arizona, California, Michigan, Oklahoma, and Wisconsin). He is the Chief Justice for two of those tribal supreme courts. Judge Smith is the current President of the Tennessee Municipal Judges Conference. In 2017, Judge Smith was named the Tennessee Municipal Judge of the Year and was the focus of an article in the November 2019 edition of the ABA Journal. *** Bailee L. Plemmons graduated Summa Cum Laude in May 2020 from Tennessee Wesleyan University with a B.S. in Business Administration with emphases in Marketing, International Business, & Communications. Upon graduating, she received the Bill “B.T.” Hudson Award for the Most Outstanding Business Student. Miss Plemmons was also awarded the 2019 A} Balfour and B} Dr. Floyd “Jack” Bowling Awards. These honors are presented annually to exemplary students at Tennessee Wesleyan University by the faculty and student body. 211 Published by University of Oklahoma College of Law Digital Commons, 2020 212 AMERICAN INDIAN LAW REVIEW [Vol. 44 I. Introduction American federal Indian law scholars are calling for Congress to create either a federal United States Court of Indian1 Appeals—equal in power to other United States circuit courts—or an American Indian Supreme Court. 2 The problem with this academic debate is that a viable and functioning federal appellate court,3 acting under the United States Department of the Interior’s regulatory authority, already exists to address Native American appeals in “Indian Country.”4 Known as the Court of Indian Appeals, this 1. The term “Indian” is the statutory definition reference used by Congress for Native Americans in the U.S. Code. See 25 U.S.C. §§ 1603(13), 1903(3) (2018). The term will be used interchangeably in this Article with Native American. Native Americans are people who trace their bloodlines back to indigenous populations in North America, which existed before Europeans “discovered” the “New World.” In re Narragansett Indians, 40 A. 347, 349 (R.I. 1898); Cherokee Nation of Okla. v. Babbitt, 944 F. Supp. 974, 977 (D.D.C. 1996). Canadians refer to similar indigenous populations as First Nations. Audrey G. McFarlane, The New Inner City: Class Transformation, Concentrated Affluence and the Obligations of the Police Power, 8 U. PA. J. CONST. L. 1, 27 n.99 (2006). In a few unique situations, such as the Mohawk Tribe in northern New York, tribal lands sometimes cross the border of Canada and the United States. Maya Ginga, Note, Patently Absurd: Critiquing the USPTO’s Disparate Treatment and State Immunity in Inter Partes Review, 75 WASH. & LEE L. REV. 1703, 1706 n.15 (2018). This also occurs on a few spots at the Mexico/United States border. See No Wall: Background, TOHONO O’ ODHAM NATION, http://www.tonation-nsn.gov/nowall/ (last visited June 13, 2020). The use of the term Indians is not intended to be disrespectful. It is simply using the term reference adopted by Congress to describe Native Americans. Accord Morris v. Tanner, 288 F. Supp. 2d 1133, 1135 n.2 (D. Mont. 2003); In re Adoption of T.A.W., 354 P.3d 46, 47 n.2 (Wash. Ct. App. 2015). 2. See, e.g., Carrie E. Garrow, Habeas Corpus Petitions in Federal and Tribal Courts: A Search for Individualized Justice, 24 WM. & MARY BILL RTS. J. 137, 144–45 (2015); 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, 206–07 (1993); cf. 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). The debate over a centralized U.S. Court of Indian Appeals is not a new concept, but instead traces back to the proposed version of the Indian Reorganization Act of 1934. See Joh (...truncated)