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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).