Thanks to funding support by the National Science Foundation Build and Broaden program (Award Number: 2222547), Todd Curry, Mark Hurwitz, and I are examining the role of federal and state courts in adjudicating indigenous issues by analyzing how changing political contexts over time impact judicial decision making in cases concerning Indigenous Peoples and Nations. 

Project Overview: The legal status of indigenous peoples and tribes in the United States has been defined by constantly evolution from the Marshall Trilogy, through the Indian Assimilation period, and into the Era of Indian Self-Determination to modern day. Throughout these eras, indigenous legal status and sovereignty have largely eroded, and modern federal devolution of indigenous affairs to states has further degraded indigenous rights. Indigenous peoples are now forced to go to the courts to seek protections for their rights, treaties, and sovereignty.

In this project, we ask: How does the changing legal landscape pertaining to Indigenous Peoples affect their success rates before courts? How does the federal devolution alter the docket of these courts and affect Indigenous Peoples’ access to justice? To address these questions, we examine all cases involving indigenous peoples and tribes in state supreme courts, U.S. Courts of Appeal, and the U.S. Supreme Court from 1960 through 2020. We argue that as more federal legislation explicitly invited states to determine the parameters of tribal sovereignty, the types of cases involving Indigenous Peoples, the venue chosen for claims, and the outcomes should vary in systematic ways.            

We are collecting data on all cases involving Indigenous Peoples and tribes in all 52 state supreme courts, all U.S. Courts of Appeals, and the U.S. Supreme Court from 1960-2020. We are developing six datasets, which will include a case-level and justice-level set of court decisions for state supreme courts, U.S. Court of Appeals, and U.S. Supreme Court. These datasets enable us to identify distinct features of each court system while simultaneously allowing us to trace cases through the judicial hierarchy. In this manner, we will develop the first comprehensive, systematic analysis of how changes in legal landscapes have affected Indigenous Peoples.

Once completed, these data will be made publicly available and free of charge.