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Cami Fraser
excerpted from Cami Fraser, Protecting Native Americans: The Tribe as Parens
Patriae (1), 5 Michigan Journal of Race and Law 665-694, 665-668, 694 ( Spring
2000)
In his treatise, Federal Jurisdiction, Erwin Chemerinsky
advocates protection for citizens through litigation on their
behalf by sovereign entities under parens patriae standing. "[I]n
a society in which litigation costs are enormous and the
protection of constitutional rights is imperative, allowing the
government to sue on behalf of its citizens can provide essential
safeguards that otherwise might be lacking." This is especially
true for Native Americans, as Lawrence Baca, President of the
American Indian Bar Association, notes with regard to racial
discrimination:
Where racial issues and civil rights are concerned, the
national conscience has largely passed over American
Indians. Indians are trapped in a national
consciousness that perceives [them] as historical
relics and western movie backdrops. Indian people often
perceive that the very institutions of government that
were established to fight race based discrimination
have failed to include American Indians among the
protected classes. The economic situation in which most
Native American people live only reinforces the
problematic nature of strictly individual assertions of
rights.
Within the federal system, three types of sovereigns exist:
Federal, State, and Native American Tribal governments. The
Federal government has restricted the legal definition of Native
American to members of federally recognized Tribes. Native
American tribal sovereignty is often split into two categories:
internal and external. Internal sovereignty includes the
expansion of tribal law governing institutions, as well as
economic and social infrastructure. Native American Tribes also
fight external incursions on their sovereignty from both State
and Federal Governments. More recently, indigenous peoples from
around the globe have joined forces to create international
protections for their people and institutions. Native American
Tribes struggle to retain their sovereign internal and external
rights in order to protect their members.
The Eighth, Ninth, and Tenth Circuits, as well as several
Federal District Courts, have accepted Tribes litigating under
the doctrine of parens patriae, although without analysis. When
Courts have dealt with the question of tribal parens patriae
standing, they have held that in certain circumstances Tribes
have parens patriae standing to instigate litigation on behalf of
their members. The current problem lies in the application of the
parens patriae doctrine to Tribes. Specifically, in five Federal
District Court cases the Courts misinterpreted the requirements
for parens patriae standing laid down by the Supreme Court.
According to the Supreme Court's decisions on parens patriae, the
Tribes in these cases should have been recognized as having
parens patriae standing, since they were litigating on behalf of
a significant segment of their population. However, the Tribes in
each of the cases were found not to have standing since they were
not litigating on behalf of all of their members.
This Note argues that Tribes have parens patriae standing to
protect their citizens through litigation on their behalf, even
if not all of their citizens are engaged in the litigation. Part
I examines the current requirements of parens patriae standing,
as articulated by the Supreme Court. Part II briefly examines the
nature of tribal sovereignty within American jurisprudence and
concludes that parens patriae standing is a retained right of the
Tribes. Part III examines the way in which the Federal District
Courts have incorrectly handled tribal parens patriae standing.
This section argues for a reexamination of Supreme Court doctrine
when applying parens patriae standing to Tribes. Part IV briefly
examines permissible defendants under Tribal parens patriae
standing.
. . .
Without Tribal parens patriae standing, American jurisprudence
leaves a gulf between protections provided for Native American
citizens and non-Native American citizens. Relying on the States
to champion the rights of individual Native American citizens is
insufficient. Tribes have long protected their members and wish
to fulfill this role in the modern legal context. This Note
recommends that Federal and State courts recognize parens patriae
standing in Tribes without the "all members" requirement, thus
bringing parens patriae doctrine, as applied to Tribes, in line
with current Supreme Court holdings. The additional requirement
currently applied to Tribes, that litigation be on behalf of all
members, must be dropped in favor of the "substantial segment of
[the] population" requirement.
1. Parens patriae is often defined as:
literally parent of the country, refers traditionally to role of state as
sovereign and guardian of persons under legal disability, such as juveniles or
the insane, and in child custody determinations, when acting on behalf of the
state to protect the interests of the child. It is the principle that the
state must care for those who cannot take care of themselves, such as minors
who lack proper care and custody from their parents. It is a concept of
standing utilized to protect those quasi-sovereign interests such as health,
comfort and welfare of the people, interstate water rights, general economy of
the state, etc.
Black's Law Dictionary 1114 (6th ed. 1990) (internal quotes and citations
omitted).
The Supreme Court has held that the State must be acting as an advocate for
the injured party. See Kansas v. Utilicorp United, Inc., 497 U.S. 199, 219
(1990).
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