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Abstract: Advocacy for Indigenous Nations in the United States is a long game. It can take years of coordinated efforts, combined with spontaneous opportunities, to move the Federal Indian Law needle forward. Advances have required that a variety of lawyering skills and strategies be deployed across tribal, state and federal judiciaries. Where litigation is ineffective, or where the calculus of risks suggests other strategies, parties rely on non-litigation strategies such as intergovernmental agreements and diplomacy, political and administrative advocacy and increasingly, public education and media engagement.
The 2025 Kansas Law Review Symposium focused on the theme “Strategic Litigation in Pursuit of Indigenous Justice,” and addressed a wide range of advocacy approaches. As we envisioned and designed this symposium, we invited tribal leaders, scholars, and practitioners in order to represent the breadth of strategic litigation and non-litigation strategies. Symposium panelists included all the directors of the Tribal Law and Government Center since its inception more than twenty-five years ago. Systemic change sometimes comes from successful complex federal class action claims with carefully curated claimants. At other times, major victories with far-reaching implications for the field of Federal Indian Law flow from seemingly low-stakes challenges to governmental authority brought by otherwise powerless individuals. And yet other major shifts in power dynamics can come from the deliberate choice to avoid judicial adjudication of untested rights altogether, in favor of other strategies.
The following three papers address several of the themes explored throughout the symposium panels, including tribal, state, and federal litigation and alternative non-litigation strategies. In Rosalind's Refund: The Woman, the Lawyers, and the Time that Created McClanahan v. Arizona, Professor Bethany Berger shares the story of how a small-scale income tax protest became a pivotal reset of Federal Indian Law to its foundational roots. In McClanahan, the U.S. Supreme Court unanimously rejected state regulatory authority over Indians inside of Indian country. The case's impact reached far beyond the subject matter of income taxation and highlights the important work of legal service attorneys.
Professor Sarah Deer explores tribal jurisprudence in Sexual Assault in Tribal Appellate Courts. Strategic litigation in Indian law involves the judiciaries of three distinct sovereigns, and at times, jurisdiction overlaps in a web of concurrent jurisdiction. Tribal nations have inherent sovereignty and jurisdiction over local sexual violence cases, but that jurisdiction has been limited by colonial interventions in ways that disrupt tribal responses to violence. Centering the work going on in tribal courts is a critical part of the strategic litigation dialogue, as tribal courts are often the front-line forum for seeking redress, either through sovereign or private causes of action.
In Advancing Tribal Co-Management: Lessons Learned from International Comparisons, Matthew J. McGrath and Dean Elizabeth Kronk Warner highlight how tribes may address power imbalances with the federal government through avenues outside the courts. Co-management arrangements for stewardship of lands and natural resources are a common practical approach as a first step toward regaining tribal autonomy and self-determination. In these scenarios, tribal decision-making authority is strengthened, particularly in situations where lands are otherwise under the exclusive jurisdiction of the United States with federal administrative agencies otherwise in control. For instance, in the protection of sacred sites and in situations where tribes seek more meaningful consultation from federal agencies, strategic non-litigation often includes practical approaches to shared governmental authority arrangements and other government-to-government approaches.
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