Tribal governments are stronger, more vocal and more visible than ever before.  For years, tribal governments have effectively focused their attention on the activities of the legislative and executive branches of the federal government. Too little attention has been paid, however, to the judicial branch, where critical decisions impacting Indian nations are frequently made. Tribal leaders and tribal attorneys have witnessed first-hand the results that the appointment of federal judges who have little or no knowledge of the fundamental legal principles underlying Indian law has on tribal sovereignty. Throughout the 1980s and 1990s, there was a significant shift in the federal judiciary towards a stronger states’ rights philosophy. The corresponding change in results in Indian law cases has been dramatic and quantifiable. For example, under the Burger Court (1969 to 1985), Indian tribes won 58% of their cases before the U.S. Supreme Court.  Under the Rehnquist Court (1985 to 2000), however, Indian tribes won only 22% of their cases.

These statistics are not simply losses in individual cases; they represent the U.S. Supreme Court’s systematic dismantling of established precedent and the creation of new law that is applied in future cases, thus further harming tribal interests. Equally concerning, is the fact that since 1969 only 2 Native Americans have been appointed to the federal judiciary, and there are currently no active judges who are tribal members.