The Judiciary in Nation Building 1

The Role of the Judiciary in nation building: Lessons from rebuilding Native Nations in
the United States of America.

Mr Kanyinke Sena LLM, (S.JD)

James E Rogers College of law
University of Arizona, USA.
Arizona, USA
Email: Kanyinke@email.arizona.edu

Abstract
A well-functioning judiciary plays a critical role in nation building. Besides advancing a
Nation’s sovereignty, it promotes constitutionalism and enhances adherence to the rule of law
while ensuring maintenance of law and order. In this way, the Judiciary creates a better
environment for economic growth. A competent judiciary therefore expands the possibilities
for a nation’s future. To advance this argument, these paper looks at devolution and
marginalized communities’ rights in the context of Native Nation building in USA,
highlighting the role that the US judiciary, including Native Nations courts, play in the
development of Native Nations.
The paper is divided into three parts. Part one offers an overview of the US legal system and
the position of Native Nations court in the system. Part two analyzes the concept of Nation
building and the role of US Supreme court and Native Nations courts in building Native
Nations and part three offers a conclusion with key questions that Kenya might need to
ponder.
The paper has immense research implications in the context of devolution and marginalized
communities’ rights in Kenya. However, the level of governance, stability and capacity might
be a limitation, though the historical context between Kenya and US is almost similar.

Key Words: Judiciary, Nation Building, Devolution, Governance, Native Nations

Introduction
The emergent legal and political discourse in Kenya with respect to devolution is posing
significant challenges to the State’s existing institutions and in particular the administration
of justice by the courts. The Constitution of Kenya, (2010) creates a devolved system of
Government with the primary objective of accelerating Nation building through devolving
power and resources to the local level. Devolution has ushered a period of heightened
expectations not only at the County government level but also among historically

Sena
 The Judiciary in Nation Building 2  

marginalized communities who are increasingly looking upon the courts to address issues of
historical injustices as basis for their development as part of Kenya. Court decisions on these
issues will surely be complex and precedent setting. The decisions will establish strong
foundations for nation building of which good governance is a key pillar. Inclusiveness and
the recognition and respect for diversity are key ingredients for good governance.
Arguably, Kenyan courts are encouragingly taking the bull by the horns. For example, in a
recent precedent setting decision,1 the Environment and Land Court at Nairobi recognized a
community as both Indigenous and a Minority on the basis of its unique culture that has been
historically marginalized. By this decision, the Court established a framework for the
actualization of Article 56 and other provisions of the Constitution that relate to similarly
situated communities in the Country. To accelerate inclusive nation building, Courts should
strive to secure the land rights especially for marginalized communities and strengthen the
notions of internal self-determination within Kenya, in line with the developing norm and
jurisprudence on the right to self-determination under International Law.
These recent developments in Kenya provide a timely opportunity to compare similar
doctrinal developments in other jurisdictions, specifically the United States of America,
through the lens of devolution focusing on Native tribes and the role of courts in their
development.
In the early 70s, for example, the Citizen Potawatomi Nation2 of Oklahoma material assets
consisted of only 2½ acres of trust land, $550 in the bank and an old trailer that served as the
tribal headquarters. 40 years later, the tribe’s assets include a bank, a golf course, casinos,
restaurants, a large discount food retail store, a tribal farm, a radio station, and more than
4,000 acres of land purchased by the tribe. The tribe channels its resources into services for
its citizens – from health care to education and child development support and an award-
winning small business development program. The tribe’s economic impact on the City of
Shawnee, Oklahoma hit $522 million in 2012. The tribe takes responsibility for 7 out of
every 10 jobs created in the City. Since 2005, the tribe has provided 25 000 scholarships,
invested $24.5 million in water development and $10.6 million in public safety including
police services and storm shelters among other successes.
Besides leadership, the success of the Citizen Potawatomi Nation is attributed to a strong
judiciary, which includes a trial and appeals courts. The tribes judiciary functions at a level of
sufficiently high quality such that it has attracted tens of millions of dollars of capital to the
Nation’s business enterprises and induced a neighboring non-Indian township to opt into the
Potawatomi system and out of the State of Oklahoma system for its municipal court services
(Jorgensen, 2007).
The Citizen Potawatomi story is not the only such story. Research by the Harvard Project on
American Indian Economic Development (2008)3 and the Native Nations Institute4 shows
that when institutions, especially the courts, implement a nation’s own decisions on what
development approaches to take, the Nations consistently out-perform external decision
makers on matters as diverse as natural resource management, education, health and overall
economic development. In a nutshell, the tribes are building their Nations (Kalt, 2014).

Sena
 The Judiciary in Nation Building 3  

This paper is therefore a story about Native Americans Courts and their role in (re)building
strong Native Nations in the United States. The paper will begin by exploring the American
judicial system and the place of Native Nations Courts. It will then explore the role of the
courts in Native Nation building and conclude with a set of questions that Kenya may reflect
on in its nation building efforts.
Overview of the American Judicial System
On 17th September, 1787 the United States of America adopted their Constitution as the
supreme law of the land.5 The Constitution established a two-tier system of government that
comprises the Federal (national) and State governments.6 However, the Constitution also
recognized the special place of Native American’s and recognized them as sovereign nations
within the United States,7thus introducing a separate governance structure for Native
Americans.
Each of the three levels government has its own governmental structures, legal codes, and
judiciary. Besides the US Constitution, each of the 50 States and federally recognized Indian
tribes8 operate under the State’s or Tribe’s own Constitution and laws.9 Currently, there are
566 federally recognized Indian Nations (variously called tribes, nations, bands, pueblos,
communities and native villages) in the United States. Approximately 229 of these ethnically,
culturally and linguistically diverse nations are located in Alaska; the rest are located in 33
states.10
Tribal self-governments serve respective Indian Nations as distinct groups of peoples11 and
provide basic infrastructure including roads, bridges, and public buildings and a broad range
of governmental services on tribal lands,12 including education, environmental protection,
law enforcement, and judicial systems.13
Native Nations Courts
There are about 300 tribal courts and 23 Courts of Federal Regulations (Courts of Indian
Offences)14 in the United States. These are formalized systems established by American
Indian and Alaska Native tribes for resolving criminal and other legal matters within their
tribes. Tribal courts play a critical role in Native Nation building. But before exploring this
role, it is important first to understand the foundations of these tribal courts in the US justice
system.

Tribal Sovereignty as the foundations of Native Nations Courts

Tribal sovereignty constitutes the inherent authority of Native tribes to govern themselves in
their territories within the borders of the United States. Tribal sovereignty, though
diminished, holds that Indian Tribes still retain those aspects of their sovereignty not
expressly divested by treaty or statute or implicitly divested by virtue of their dependent
status (David Gretches, 1998).15 Tribal Sovereignty is the right of the tribes to govern
themselves, define their own membership, manage tribal property, and regulate tribal

Sena
 The Judiciary in Nation Building 4  

business and domestic relations. Tribal sovereignty further recognizes the existence of a
government-to-government relationship between Indian tribes and the federal government.16
Tribal sovereignty is based on three fundamentals (i) the interactions between Indian tribes
and the Colonial power (ii) legislations by the US Congress, but more importantly, (iii)
decisions of the US Supreme Court.

Colonial underpinnings of tribal sovereignty

European expansionism from the 16th to 19th centuries resulted in the conquest of native
tribes in what is now the United States (Benner, 2005). The instruments of conquest and
dispossession included not only violence, but also consensual transactions and colonizer
established legal institutions and rules by which land transactions would be made and
enforced (Williams, 2014).
Principle among these instruments of dispossession were treaties between the Indian tribes
and the colonizing power. According to the Bureau of Indian Affairs (2014), from 1778 to
1871 relations between the United States and individual American Indian tribes were defined
and conducted largely through treaty-making processes. Williams (2014) asserts that treaties
were primarily driven by the United States as a means of avoiding war with the tribes by
choosing to treat them as foreign nations through which it could enter into treaties and
agreements with. These “contracts among nations” recognized and established unique sets of
rights, benefits and conditions for the treaty-making tribes who in-turn agreed to cede
millions of acres of their homelands to the United States in exchange for US protection. Like
other treaty obligations of the United States, Indian treaties are considered part of “the
supreme law of the land” and are the foundation upon which federal Indian law and the
federal Indian trust relationship is based.17
The U.S. Constitution enshrines the political or “government-to-government” relationship
between the Federal government and Indian nations and makes that relationship distinct as
that which the Federal government has with foreign nations and with the 50 states that form
the United States.18 This enabled the constitution to be in tandem with established
international law at the time which provided that only “international” sovereigns had the
ability to enter into political relationships with the Indian nations.19 Against this
understanding, the U.S. Constitution was drafted so that the Federal government representing
the "US sovereign" and not state governments would have responsibility for Indian affairs.
The Federal government exercises the responsibility through Congress.20
US congress and Tribal Sovereignty
In the exercise of its constitutional powers over Indians affairs, Congress has regularly
enacted legislations that have had far reaching implications on tribal sovereignty. The
majority of the legislations were motivated by the need to acquire more lands from Indians21
to settle the expanding settler population. However, judicial decisions on Indian Tribes have
also contributed to the enactment of numerous legislations by Congress. 22

Sena
 The Judiciary in Nation Building 5  

Some of these legislations include the Indian Appropriations Act, 1871 that ended
recognition of additional Native American tribes or independent nations, and prohibited
additional treaties. The Major Crimes Act, 1885 that made seven “major” crimes committed
on Indian reservations punishable under federal law.23 The General Allotment (Dawes) Act,
1887 that allotted lands within certain Indian reservations to Indians and allowed non-Indians
to homestead on un-allotted or “surplus” lots.24 The Indian Reorganization Act, 1934 that
allowed Indian nations to govern themselves on the basis of a catalogue of constitutional
documents that enumerated powers for tribes and for tribal councils.25 Public Law 280, 1953
that gave some states extensive jurisdiction over the criminal and civil controversies
involving Indians on Indian lands though many especially Indians, continue to believe the
law unfair because it imposed a system of laws on tribal nations without their approval.26
And more recently, Congress extended the Violent Crime Control and Law Enforcement Act
of 199427 to give tribal courts authority to try offenses under the Act committed on Indian
lands by both Indians and non-Indians.28 But it is the US Supreme Court that has and
continues to have a greater impact on tribal sovereignty.
US Supreme Court and Tribal Sovereignty
Since 1823, the US supreme has struggled to define the issue of tribal sovereignty in the
United States. Gretches et al (1998), state that the Supreme Court has shifted between two
competing theories; that tribes have inherent powers of sovereignty that predate the
"discovery" of America and that tribes have only those attributes of sovereignty that
Congress gives them. Whatever theory the Court has relied on in a given case, it has
determined the powers the tribes have and what protections they receive against Federal and
State government encroachment (Williams, 2014).
The doctrinal basis for defining tribal sovereignty was set by the Supreme Court in the
Marshal trilogy29 the first of which was Johnson v M’Intosh, 1823.30 Therein the Court held
that by virtue of the doctrine of discovery31 native tribes only had possession but not title to
the lands on which they live.
In Cherokee Nation v. Georgia, 1831,32 the Court held that tribes had unquestionable rights
to the lands they occupy until they voluntarily extinguished that right to the government.
However, tribes could not be denominated as foreign nations but as “domestic dependent
nations”33 within the boundaries of the United States, thus establishing a federal trust
relationship between the federal government and Indian tribes.34
Worcester v. Georgia, 183235 held that treaties and laws of the United States contemplate the
Indian Territory as completely separated from that of the States. The laws of the State
(Georgia) therefore cannot have force in Indian Territory as intercourse between the United
States and tribes is vested in the Federal36 government of the United States.
Indian sovereignty is therefore inherent and is not extinguished by US citizenship (Iron Crow
v. Ogala Sioux Tribe, 1956).37 It can only be extinguished through a treaty or Congressional
action (U.S. v Nice, 191638) as congress retains plenary authority over Indians (Lone Wolf v.
Hitchcock, 1903).39 Plenary power over Indian affairs is excised solely by Congress and not
the States (Washington v. Confederated Tribes of Colville Indian Reservation, (1980))40 and

Sena
 The Judiciary in Nation Building 6  

is based on the federal-trust relationship through which the federal government has a duty to
protect the tribes.
Treaties, legislative provisions and Supreme Court decisions are therefore the foundations of
for tribal sovereignty. But despite inherent tribal sovereignty, members of native tribes are
also citizens of the United States under among others, the Indian Citizenship Act, 1924.41
Evolution of Tribal Courts
Prior to European arrival, Indian nations functioned under their respective and inherent
principles of sovereignty. They governed, policed, regulated land use, and resolved internal
conflicts in accordance with their norms, values, and customs that had existed since time
immemorial. They exerted complete and absolute jurisdiction over criminal matters occurring
within their lands. With the expansion of the European colonizers into their lands, however,
Indians confronted an expansionistic-minded people who typically not only loathed cultural
diversity but also sought to force Indians to conform to European laws, customs, and beliefs
(Lujan, & Adams, 2004).
To regulate law and order among "savage Indian" tribes, the Colonial power felt the need for
some formal structures through which Indians could be civilized and assimilated as law-
abiding US citizens (Pommersheim, 1988). This resulted in the establishment of Courts of
Indian offenses in 1886.42 However, when tribal sovereignty was reestablished through Acts
of Congress and court decisions, tribes began establishing their own courts. But it wasn’t
until the Indian Reorganization Act (1934) period that tribal authority, rather than United
States authority, gave the tribal courts legitimacy among tribes (Pommersheim, 1988). The
Act allowed Indians to set up their own justice codes and operate court systems that will
enforce tribal laws of Indian tribes.43
Organization of Native Nations Courts
Tribal justice systems are diverse in concept and character. While some are extensively
elaborate, others are just beginning to develop a ‘modern’ judicial system within the context,
conditions, and circumstances of their individual nations.44 Some tribes prefer the adversarial
process, while others utilize traditional dispute resolution mechanisms such as peacemaking,
elders' councils, and sentencing circles. Some tribes utilize both systems. Many tribal courts
apply large bodies of written or positive law but others apply customs and traditions to
address controversy and settle disputes. The Bureau of Indian Affairs (BIA)45 also manages a
small number of Code of Federal Regulations (CFR) courts.
Tribal legal practitioners also possess various qualifications, levels and diversity of
experience. Judges may be trained lawyers or experienced tribal members well versed with a
particular tribe’s customs and traditions. Some tribal courts utilize both. Appointment of
judges is by the tribes governing body either through elections or appointment. Some tribes
have bar exams that enable interested lawyers to practice law in the tribe (Pommersheim,
1988).

Sena
 The Judiciary in Nation Building 7  

Powers of Native Nations Courts

Tribal courts jurisdiction flow from tribal sovereignty (Iron Crow v. Ogala Sioux Tribe,
(1956)).46 However, powers of tribal courts, as interpreted by the US Supreme Court and
Congress, have constantly shifted depending on the prevailing opinion at the time (Williams,
2014). Generally, tribal courts have civil jurisdiction over Indians and non-Indians who
reside or do business on federal Indian reservations. The courts also have criminal
jurisdiction over violations of tribal laws committed by tribal members residing or doing
business on the reservation.47 For a long time, tribal courts have lacked jurisdiction over
major crimes that occur in tribal territory,48 over non-member Indians (Duro v. Reina
(1990))49 and over non-Indians (Oliphant v. Suquamish Indian Tribe, (1978))50 with
jurisdiction falling on the federal government courts on the basis of federal-trust relationship
(U.S v Kagama, (1886)).51 This obviously raised significant law enforcement challenges that
necessitated a review of tribal courts jurisdictions.
In Montana v U.S, (1981),52 therefore, the Supreme Court held that tribal courts had civil
authority over non-members within tribal lands to the extent necessary to protect health,
welfare, economic interests or political integrity of the tribe. Congress amended the Indian
Civil Rights Act, 196853 in 1991 to give tribal courts jurisdiction over all Indians (both
members and non-members) and again in 2010 through the Tribal Law and Order Act,
201054 to expand the limitations on the terms of imprisonment from one year to three years,
and fines from $5,000 to $15,000 that can be imposed on defendants convicted in tribal court.
Congress further amended the Civil Rights Act in 2013 through the re-authorization of the
Violence against Women Act (VAWA), 2013,55 to give tribal courts limited jurisdiction over
non-Indians only on matters related to domestic violence.

Part Two
Role of Native Nation Courts in Native Nation Building
What is Nation Building?
The word "nation" means different things to different people. To some, it is a group or race of
people who share history, traditions, and culture, sometimes religion, and usually language.
At the United Nations, the term "nation" is usually used in reference to the State. Native
nationhood is associated primarily with the social construction of race or ethnicity and to an
extent civic nationhood based on common identity and loyalty to a set of political ideas and
institutions, and the linkage to tribal citizenship and to membership (Williams, 2014).
“Native Nation-building” refers to the process by which Native nations put in place the
governing processes and frameworks that are required for effective self-governance and self-
determined community and economic development.56 To the Native Nations Institute, nation
building refers to the efforts of Native Nations to increase their capacities for self-rule and for
self-determined, sustainable community and economic development (NNI, 2013). Nation
building involves developing the Nations capacity to make timely, strategically informed
decisions about the Nation’s affairs and to implement those decisions.57

Sena
 The Judiciary in Nation Building 8  

The Harvard project on American Indian development (2008) has observed two approaches
to Indian development; the standard approach and the nation building approach.
The Standard Approach to Nation Building
Since 1800's the federal government has unsuccessfully tried different assimilation and
allotment strategies for the economic development of Indian tribes. The policy failures
necessitated a study on The Problem of Indian Administration (Meriam , 1928) to investigate
the conditions of American Indians and provide recommendations for addressing the
challenges faced by Indians. The crosscutting recommendations of the Meriam report
resulted in the enactment of the Indian Reorganization Act, 1934 that gave Indians greater
control of their destiny through self-government and management of resources found on their
lands. The Bureau of Indian Affairs developed a model constitution and charters, which
tribes could adopt and utilize in the exercise of self-government. However, power over Indian
affairs was still concentrated on the US Secretary of Interior and the model constitution and
charters did not meet Native tribes expectations as they lacked the cultural match necessary
for addressing economic stagnation, environmental degradation, land loss, health and
education disparities that Indian tribes suffered (Melissa Tatum, 2014).
Cornell and Kalt (2007), call this the standard approach to Indian economic development.
Under the standard approach, decision-making is short term and non-strategic. Development
is treated primarily as an economic problem and persons or organizations outside the Native
Nation set the economic agenda. Under the approach, indigenous cultures and rights are
viewed as obstacles to development and elected leaders serve primarily as distributors of
resources. This often resulted in failed enterprises, the politics of spoils and tribal economies
that highly depended on federal dollars and decision-making. It also resulted in massive brain
drain where educated and highly skilled tribal members sort employment in far off places as
conditions in the tribal territories could not support them. This contributed to an impression
of incompetence and chaos in the tribes, effectively undermining tribal sovereignty. The end
result was continued poverty and cultural stress.58
The Nation Building Approach
On the contrary, the Nation Building approach focuses on asserting rights to govern self and
on building the foundational and institutional capacity to exercise those rights effectively.
Under this approach, tribes assert self-rule, back up the assertions with effective governing
institutions and the governing institutions match the tribe political culture. Decision-making
is also strategic with leaders serving as nation builders and mobilizers.59 Cornell and Kalt
(2007) observe that under the nation building approach, there is more effective access to and
use of resources in the tribes resulting in increased chances of sustained and self-determined
economic development. There is also more effective defense of sovereignty and native
nations are now working - economically, socially, culturally and politically.60
Role of Courts in Nation Building
Cornell and Kalt, (2007) attribute the exponential growth of native nations over the last few
decades to effective governing institutions that include the judiciary.61As the judicial arm of

Sena
 The Judiciary in Nation Building 9  

government, the judiciary interprets and applies the law thus shaping the way leaders and
citizens’ act and how they relate to each other and to the outside world. A judiciary that
enjoys both internal and external legitimacy therefore plays a significant supporting role in
fostering economic development.62
In the Native Nations context, tribal judicial systems: -
Advance Tribal Sovereignty
Sovereignty is a complex concept capable of various definitions. It may be defined as
supreme public power, which has the right and, in theory, the capacity to impose its authority
in the last instance (De Benoist, 1999). Like national sovereignty, tribal sovereignty can be
understood as the freedom of a collective entity (tribe) to act. Tribal sovereignty is enshrined
in respective tribe’s constitutions and comprises internal and external sovereignty (Melissa
Tatum, 2014). Internal sovereignty ensures that any decisions about the tribes with regard to
their property and citizens are made by their participation and consent.
Tribal sovereignty enables tribal self-determination which, according to Cornell and Kalt
(1995), enables Indian tribes to become effective decision-makers in their own affairs as
opposed to reliance on decisions and actions by or from Federal government. Self-
determination often leads to strikingly positive results.
It can therefore be argued that internal sovereignty, nation-building, and economic
development go hand in hand. Without sovereignty and nation building, economic
development is likely to remain a frustratingly elusive dream (Cornell & Kalt, 2003). Native
Nations judiciary plays a critical in advancing and guarding a nation’s internal and external
sovereignty63 by defining, protecting and enforcing tribal jurisdiction. It mediates and
resolves disputes that arise between and among tribal citizens, families in the communities,
non-tribal citizens, tribal government and outside agencies and interests. It also defends
sovereignty against encroachment by other governments and reinforces its capacity to enter
into government-to-government relationships with other tribes or States.
Support Economic growth
In a report to the US Senate Committee on Indian Affairs, Kalt observes that an indispensable
foundation of successful businesses is a capable, independent tribal judiciary that can uphold
contracts, enforce stable business codes, settle disputes and in effect, protect business from
politics.64 An empowered and impartial tribal court system helps create an atmosphere of fair
play in the disputes that inevitably arise among those who live, work and do business with
the tribal community.
A fair, reasonable and depoliticized court system creates an environment in which land rights
are recognized and respected, labour disputes are decided on the basis of cause rather than
political relationships and neither citizens nor government can renege on contracts without
paying damages. When citizens and outside commercial interests observe an even-handed
and predictable treatment, they are much likely to invest their time, talents, skill and money
in the nation’s economy (Jorgensen, 2007).

Sena
 The Judiciary in Nation Building 10  

In contrast, when a nation’s court system seems not to be working in tandem with other
branches of government including the law enforcement system or vice versa, the nation can
be perceived as an unsafe place. This is detrimental to investments as potential investors will
see the Nation as unsafe for their property and staff.
Courts Build Constitutionalism and the Respect for the Rule of Law
Most tribal nations have constitutions that may either be written or unwritten (Melissa Tatum,
2014). But the existence of a progressive constitution by itself does not result in nation
building. It must be accompanied by a rejection of authoritarianism and the respect for the
rule of law (Modibo, 2008). A Constitution enshrines the nations values and the way they
want to be governed. To the Hopi tribe, for example, nation building is going back to the
values of who they are and then setting governance accordingly (Melissa Tatum, 2014).
Modibo (2008) argues that a key pillar of good governance is a strong, efficient and honest
administration of justice by a judiciary that enjoys the highest integrity. He stresses that the
judiciary being an organ of the state and a creature of the constitution, it must strive for the
viability of the state as a whole and not a particular government or political party in power.
The judiciary must also develop sensitivity to social contexts and assist in securing access to
justice for the underprivileged, marginalized and vulnerable groups. It achieves this through
popularizing knowledge of constitutional, statutory, common law and customary law legal
rights. It must also enable access to justice by physically increasing avenues for dispute
resolution, structuring appropriate forums for dispute resolution and introducing simpler and
more congenial rules of procedure.65
Courts Promote the Respect for Human Rights
Human rights carry normative value as a set of universally agreed values, standards and
principles. And according to the United Nations Development Group, development for all is
a human right.66 In its preamble, the UN Declaration on the Right to Development67
considers that “the elimination of the massive and flagrant violations of the human rights of
the peoples and individuals affected by situations such as those resulting from colonialism,
neo-colonialism, apartheid, all forms of racism and racial discrimination, foreign
domination and occupation, aggression and threats against national sovereignty, national
unity and territorial integrity and threats of war" would lead to the establishment of
circumstances propitious to the development of a great part of mankind.
Suppressing human rights stifles economic development. The American experiment
including among Native Americans bears testimony to this analogy. For a long period, there
had been limited focus on the status, nature and human rights of Native Americans. For
example, despite inclusion as US citizens in 1924,68 Indian tribes do not benefit from the bill
of rights under the US constitution. This resulted in violations of Native American rights by
both the federal and state governments and even by their own tribal governments, robbing
them of the drive and initiative to take greater responsibility for their collective destinies.
This necessitated the Indian Civil Rights Act, 196869 as an instrument for addressing
American Indian civil rights and facilitating greater development.70 Coupled with the self-

Sena
 The Judiciary in Nation Building 11  

determination era71that ushered in greater recognition and respect for human rights, the tribes
have developed exponentially by taking charge of their collective destinies.
Courts play a critical role in safeguarding human rights. Chief Justice Marshall set the stage
for this responsibility when in Fletcher v Perk, 1810,72 he held that “Courts are established
to decide on human rights.” In this landmark ruling, the court was particularly instrumental in
safeguarding property rights against legislative encroachment.
Sources and Consequences of Weak Judicial Institutions
It is not all a bed of roses for native nations. Many are experiencing challenges that is
stagnating and in some cases reversing their nation building efforts. Majority of these
challenges emanate from weak institutions including the judiciary. Weak judicial institutions
in native America are attributed to lack of self-determination especially for tribes which
rather than adopting constitutions based on their own values, chose to adopt Indian
Reorganization Act (1934) constitutions that rarely respond to tribes own values and
governance systems.
Weak judicial systems are also attributed to funding challenges. Many tribal courts rely on
funding from the Federal government which channels funds to the courts with indifference to
the consistency and adequacy of budget allocations.73
A weak judiciary stifles nation building. Where a judiciary is weak, there is a tendency for
other arms of government to meddle in court cases through overturning decisions, firing
officials or cutting of the courts finances. Law enforcement also suffers and citizens begin to
loose trust and confidence in their governance systems.74 This tends to rob citizens of the
incentive to think and act strategically for the long-term future. Kalt (2014) paints a tragic
picture:- elected officials tend to exploit the system for their immediate self-enrichment, other
governments and non-tribal partners in nation building loose respect for the nations
governance systems with the result of political upheaval, brain drain and a failed state.
Conclusion
Kenya can learn important lessons from the role of the judiciary in Native Nation building
experiences in the US especially at this time that the country is struggling with devolution
challenges. The judiciary can play a central role in Kenya’s development by strengthening
devolution to enable greater self-determined development by the devolved units. Recognizing
and strengthening protections and affirmative actions especially collective and property rights
for marginalized communities as identified by the constitution75 will enable collective
development of the nation as a whole.
And as the debate on governance in community land rages on, it might be an opportunity to
explore devolution of judicial functions to the communities through a collaboration between
the judiciary and proposed dispute resolution mechanisms at the community level. Funding
of judicial services is certainly a challenge in Kenya especially with the current parliament's
constant threats of budgetary cuts to the judiciary. One would therefore wonder if this is an
opportune time for a discussion on constitutional amendments to devolve the judiciary or
enable greater cooperation with the county governments to make justice accessible, cheaper

Sena
 The Judiciary in Nation Building 12  

and faster, informed by the ongoing experiences from law enforcement and education,
currently under the national government, but which are increasingly relying on financial
support from the County governments.
This may or may not work but it certainly serves to initiate a discussion. And in furtherance
of this discussion on the role of the judiciary in nation building, this paper will end with a
few questions for reflection : -
Does the nation’s judicial system reflect the cultural values and norms
of the nation’s citizens? What are those norms and values and how are
they determined?
Are disputes being resolved judicially or politically?
Does the Judiciary serve as an effective check on the other branches of
powers? If not, what needs to be done and by who?
Is the court system properly equipped to serve the nation and it’s
citizens? What purpose does the nation want the judiciary to serve and
is it serving that purpose?

Sena
 The Judiciary in Nation Building 13  

Works  Cited  
Benner, S. (2005). How Indians Lost their Land: Law and Power on the Frontier .
Cambridge , Massachusetts, USA: Harvard University Press.
Bureau of Indian Affairs. (2014, May 23). Frequently Asked Questions. Retrieved May 10,
2014, from US Department of The Interior; Indian Affairs: www.bia.gov/FAQs/index.htm
Cornell , S., & Kalt, J. (2007). Two Approaches to the Development . The Hardvard Project
on Indian Economic Development and the Native Nations Institute. Tucson: The University
of Arizona Press.
Cornell, S., & Kalt, J. (2003). Sovereignty and Nation Building: The Deevelopment
Challenge in Indian Country Today. Tucson: Native Nations Institute.
David Gretches, C. W. (1998). Cases and Materials on Federal Indian Law. St. Paul, MN:
West Group.
De Benoist, A. (1999). What is Sovereignty. TELOS , pp. 99-118.
Echo-Hawk, W. R. (2013). In the Light of Justice: The Rise of Human Rights in Native
America and the UN Declaration on the Rights of Indigenous Peoples. Golden, Colorado ,
USA: Fulcrum Publishing.
Jorgensen, M. (2007). Rebuilding Native Nations: Strategies for Governance and
Development. Tucson, Arizona, USA: The University of Arizona Press.
Kalt, J. (2014, April 15). Ford Foundation Professor (Emeritus) of International Political
Economy and Co-Director, J.F Kennedy School of Government, Harvard University. (K.
Sena, Interviewer)
Lujan, , C., & Adams, G. (2004, Fall). US Colonization of Indian Justice System: A Brief
History. Wicazo Sa Review , pp. 9-23.
Melissa Tatum, M. J. (2014). Structuring Sovereignty: Constitutions of Native Nations. Los
Angeles, California, USA: American Indian Studies Center.
Meriam , L. (1928). The Problem of Indian Administration. Baltimore: The John Hopkins
Press.
Modibo, O. (2008, March 27). Nation Building in Africa and the Role of the Judiciary.
Northern Illinois University Law Review , 169-182.
National Congress of American Indians. (2001). An Introduction to Indian Nations in the
United States. National Congress of American Indian. Washington: National Congress of
American Indian.
NNI. (2013). Who we are; What is Native Nation Building. Retrieved May 10, 2014, from
Native Nations Institute: www.nni.arizona.edu/whoweare/whatis.php
Pommersheim, F. (1988, Winter ). The Contextual Legitamacy of Adjudication in Tribal
Courts and the Role of Bar as an Interpretative Community: An Essay. New Mexico Law
Review , 18 (1), pp. 49-72.
Republic of Kenya. (2010). Constitution of Kenya. Nairobi, Nairobi, Kenya: Government
Printers.
The Harvard Project on American Indian Economic Development. (2008). Ths State of the
Native Nations: Conditions under US policies of self-determination. New York, New York,
USA.
Williams, R. (2014, April 28th). E. Thomas Sullivan Professor of Law and American Indian
Studies. (K. Sena, Interviewer)

Sena
 The Judiciary in Nation Building 14  

ENDNOTES

1
 Joseph  Letuya  &  21  others  v  Attorney  General  &  5  others  [2014]  eKLR,  ELC  CIVIL  SUIT  NO.  821  OF  2012  (OS)  
2
For  more  on  the  Citizen  Potawatomi  nation,  please  visit  http://www.potawatomi.org/    
3
 The  Harvard  Project  on  American  Indian  Economic  Development  is  based  at  the  J.F  Kennedy  School  of  
Government  at  Harvard  University,  USA.  Please  see  http://hpaied.org/about-­‐hpaied/affiliations-­‐and-­‐
partnership    
4
 The  Native  Nations  Institute  for  Leadership,  Management,  and  Policy  (NNI),  housed  at  The  University  of  
Arizona's  Udall  Center  for  Studies  in  Public  Policy.  Please  see  http://nni.arizona.edu    
5 th
 The  Constitutional  Convention  took  place  from  May  25th  to  September  17 ,  1787  in  Philladephia.  Since  the  
declaration  of  independence  from  Great  Britain  by  the  13  States  that  formed  United  States  on  July  4th,  1776,  
the  United  States  was  operating  under  Articles  of  Confederation.    
6
 The  United  States  of  America  comprises  50  States  and  the  District  of  Columbia  which  serves  as  the  Nation’s  
capital.  The  United  States  also  has  9  territories  and  associated  administrative  areas  that  include  American  
Samoa,  Federated  States  of  Micronesia,  Guam,  Midway  Islands,  Northern  Mariana  Islands,  Puerto  Rico,  
Republic  of  Palau,  Republic  of  Marshall  Islands,  and  U.S  Virgin  Islands.  For  more  on  the  United  States  of  
America,  please  visit  http://www.usa.gov/Agencies.shtml    
7
 Article  1  Section  8  provides  that  “the  Congress  shall  have  power…..  to  regulate  commerce  with  foreign  
nations,  among  several  States  and  with  Indian  Tribes….”.  This  commerce  clause  is  generally  accepted  as  the  
recognition  of  tribal  sovereignty  in  the  constitution.  
8
 A  federally  recognized  tribe  is  an  American  Indian  or  Alaska  Native  tribal  entity  that  is  recognized  as  having  a  
government-­‐to-­‐government  relationship  with  the  United  States,  with  the  responsibilities,  powers,  limitations,  
and  obligations  attached  to  that  designation.  See  http://www.bia.gov/FAQs/    
9
 The  US  Department  of  Interior  supports  tribal  governments  through  the  Bureau  of  Indian  Affairs.  The  
Constitution  gives  the  Federal  government  exclusive  authority  over  Indian  affairs.  State  governments  do  not  
interfere  on  Indian  affairs  within  the  States.  For  more,  see  http://bia.gov/index.htm  and  
http://www.ncai.org/about-­‐tribes/Indians_101.pdf      
10
 Please  See  National  Congress  of  American  Indians,  Introduction  to  Tribal  Governments  at  
http://www.ncai.org/about-­‐tribes    
11
 The  Bureau  of  Indian  Affairs  estimates  that  there  are  1.9  Million  American  Indians  and  Alaska  Natives.  See  
http://bia.gov/WhoWeAre/index.htm      
12
 Native  tribes  currently  own  approximately  50  Million  acres  of  land.  The  largest  tribal  Land  holding  is  by  the  
Navajo  Nation  covering  17.2  Million  acres  (http://www.navajoadvantage.com/pages/natrlrs.htm).  Some  
Indian  Reservations  are  as  small  as  one  acre.    
13
 Ibid,  National  Congress  of  American  Indians.    
14
 Courts  of  Indian  Offences  were  established  to  provide  adequate  machinery  for  the  administration  of  justice  
for  Indian  tribes  in  those  areas  of  Indian  country  where  tribes  retain  jurisdiction  over  Indians  that  is  exclusive  
of  State  jurisdiction  but  where  tribal  courts  have  not  been  established  to  exercise  that  jurisdiction    
15
 Getches,  David  H.,  Charles  F.  Wilkinson,  and  Robert  A.  Williams;  Cases  and  materials  on  federal  Indian  law.  
St.  Paul,  MN:  West  Group,  1998  at  30  
16
 Ibid    
17
 Ibid,  Bureau  of  Indian  Affairs  
18
 Article  I,  Section  8  of  the  Constitution  states  that  “Congress  shall  have  the  power  to  regulate  Commerce  with  
foreign  nations  and  among  the  several  states,  and  with  the  Indian  tribes”  

Sena
 The Judiciary in Nation Building 15  

19
 This  was  largely  based  on  the  Marshal  trilogy  that  is  discussed  further  below.    See  also  Native  American  
Financial  Services  Association;  Historical  Sovereignty  and  Relations  at  http://www.mynafsa.org/historical-­‐
sovereignty-­‐relations/    
20
 Ibid  
21
 Ibid  
22
 Role  of  US  Supreme  is  discussed  below.    
23
 18  U.S.C.  §  1153    
24
 For  a  transcripts  of  the  Act,  please  visit  government  digital  archives  at  
http://www.ourdocuments.gov/doc.php?doc=50&page=transcript  
25
 Act,  Indian  Reorganization.  "Indian  Reorganization  Act.(1934).  48."  Stat  984  (1934).  For  text,  see  
http://www.cskt.org/gov/docs/reorganizationact.pdf    
26
 Law,  Public.  "280."  USC  Title  25  (1953)  
27
 H.R.3355  available  at  http://www.gpo.gov/fdsys/pkg/BILLS-­‐103hr3355enr/pdf/BILLS-­‐103hr3355enr.pdf    
28
 See  VAWA  2013  and  Tribal  Jurisdiction  over  Crimes  of  Domestic  Violence  at  
http://www.justice.gov/tribal/docs/vawa-­‐2013-­‐tribal-­‐jurisdiction-­‐overnon-­‐indian-­‐perpetrators-­‐
domesticviolence.pdf    
29
 The  three  cases  that  form  the  basic  framework  of  Indian  Law  in  the  US.  The  cases  were  decided  between  
1823  and  1832  and  are  associated  with  Chief  Justice  Marshall  (1755-­‐1835),  the  longest  serving  Chief  Justice  in  
US  Supreme  Court  history  (1801-­‐1835).    
30
 21  U.S.  (8  Wheat.)  543  (1823)    
31
 The  doctrine  of  discovery  is  a  concept  of  public  international  law  under  which  title  to  “discovered”  lands  lay  
with  the  discovering  government  whose  subjects  explored  and  occupied  a  territory  whose  inhabitants  were  
not  subjects  of  a  European  Christian  monarch.  Though  propagated  by  Chief  Justice  Marshall  of  the  US  
Supreme  Court,  the  doctrine  is  traced  to  Papal  bulls  issued  by  Catholic  popes  to  European  discovering  nations  
to  lay  claim  to  “discovered”  lands.  The  first  such  papal  bull  was  Dum  Diversas  issued  in  1452  by  Pope  Nicholas  
V  to  King  Alfonso  V  of  Portugal  to  conquer  Saracens  and  Pagans  and  perpetually  enslave  them.  This  Papal  Bull  
is  accredited  for  ushering  in  Slave  trade  in  West  Africa.      
32
 30  U.S.  (5  Peters)  1  (1831)  
33
 The  term  recognizes  a  government-­‐to-­‐government  relationship  between  the  US  and  Native  Indians  based  on  
an  inherent,  though  limited,  sovereignty.    
34
 See  Generally  Getches  et  al.  Chapter  Five,  The  Federal-­‐Tribal  Relationship  at  244  -­‐366  
35
 31  U.S.  (6  Pet.)  515  (1832)    
36
 Italics  added  
37
 231  F.2d  89  (8th  Cir.1956)    
38
 241  U.S.  591  (1916)    
39
 187  U.S.  553  (1903).    This  decision  is  departure  from  prior  Supreme  Court  decisions  especially  the  Marshal  
trilogy.  The  doctrine  of  plenary  power  gives  congress  the  power  to  unilaterally  abrogate  treaty  obligations  
between  the  US  and  Native  Indians.      
40
 447  U.S.  134  (1980)    

Sena
 The Judiciary in Nation Building 16  

41
 43  U.S.  Stats.  At  Large,  Ch.  233,  p.  253  (1924).    
42
 Bureau  of  Indian  Affairs,  Courts  of  Indian  Offences,  at  
http://www.bia.gov/WhoWeAre/RegionalOffices/SouthernPlains/WeAre/ciospr/index.htm    
43
Jones,  Billy  Joe.  Role  of  Indian  tribal  courts  in  the  justice  system.  US  Department  of  Justice,  Office  of  Justice  
Programs,  Office  for  Victims  of  Crime,  2000  at  5.    
44
 See  Generally  Tribal  Courts  clearing  house  at  http://www.tribal-­‐institute.org/lists/justice.htm    
45
 The  Bureau  of  Indian  Affairs  is  under  the  Department  of  Interior  
46
 Ibid  
47
 See  generally  “What  is  the  jurisdiction  of  tribal  courts?”  US  Department  of  Interior,  Bureau  of  India  Affairs  at  
http://www.bia.gov/FAQs/    
48
 The  Major  Crimes  Act,  1885  places  7  major  crimes  committed  in  Indian  Reservations  under  the  Federal  
Government’s  jurisdiction.  The  crimes  are  murder,  rape,  and  assault  with  intent  to  commit  murder,  arson,  
burglary  and  lacerny.  The  assumption  was  that  Indian  tribes  were  not  competent  to  deal  with  serious  crimes  
and  punishments  
49
 495  U.S.  676  (1990)      
50
 435  U.S.  191  (1978),      
51
 118  U.S.  375  (1886)    
52
 450  U.S.  544  (1981)    
53
 25  U.S.C.§§  1301-­‐1304.    As  a  consequence  of  tribal  sovereignty,  Native  Americans  living  in  reservations  do  
not  enjoy  protections  under  the  US  Constitution  Bill  of  Rights.  The  Indian  Civil  Rights  Act  was  therefore  
enacted  to  address  this  ap.  However,  the  Act  does  not  allow  actions  against  an  Indian  tribe  in  federal  court  for  
deprivation  of  substantive  rights,  except  for  habeas  corpus  proceedings.    
54
 25  U.S.  Code  §  2802    
55
 It  takes  effect  on  March  7,  2015  but  piloting  is  being  carried  out  through  the  Pascua  Yaqui  Tribe  of  Arizona,  
the  Tulalip  Tribes  of  Washington,  and  the  Umatilla  Tribes  of  Oregon.    
56
 Ibid  Harvard  project  
57
Ibid, NNI
58
Ibid  at  16-­‐17  

Ibid  at  18-­‐26  

60
Ibid  at  30  
61
 See  Generally  “The  Nation  Building  Approach”,  Rebuilding  Native  Nations;  Strategies  for  Governance  and  
Development.  Edited  by  Miriam  Jorgensen.  The  University  of  Arizona  Press,  2007  at  page  22.    
62
 Ibid  at  116  
63
Pommersheim,  Frank.  "Tribal  Courts:  Providers  of  Justice  and  Protectors  of  Sovereignty."  Judicature  79  
(1995):  110.    
64
US  Committee  on  Indian  Affairs  1996,  8  
65
 Ibid  FN  73.    

Sena
 The Judiciary in Nation Building 17  

66
   
67 th
 A/RES/41/128.  The  Declaration  on  the  Right  to  Development  was  adopted  on  4  December,  1986.    
68
 Ibid  Indian  Citizenship  Act,  1924  
69
 25  U.S.C.§§  1301-­‐1304  (ICRA)    
70
 See  generally  Indian  Sovereignty  and  the  Judicial  Interpretation  of  the  Civil  Rights  Acts,  1979,  WASH.  U.L.Q  
897  (1979).  Available  at  http://digitalcommons.law.wustl.edu/lawreview/vol1979/iss3/16  
71
 Self-­‐determination  era  
72
 10  U.S.  87  (1810)    
73
 Ibid  Rebuilding  Native  Nations  at  122  
74
 Ibid  
75
 Article  260    
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 

Sena
 The Judiciary in Nation Building 18  

 
 
 
 
 
 
 
 
 
 
 

Sena