Abstract

Excerpted From: Grant Christensen, The Return to Autochthonous Law, 93 University of Chicago Law Review 753 (May 2026) (132 Footnotes) (Full Document)

On the far end of the Trail of Tears was a promise. Forced to leave their ancestral lands in Georgia and Alabama, the Creek Nation received assurances that their new lands in the West would be secure forever .... Today we are asked whether the land these treaties promised remains an Indian reservation for purposes of federal criminal law. Because Congress has not said otherwise, we hold the government to its word.

Justice Neil Gorsuch’s opening lines in McGirt v. Oklahoma are memorable for their rhetoric. Underlying these bold words is a commitment by the Court to recognize and protect the tribal sovereign, to resist complicity in the erosion of the distinct boundary lines between state and tribe. McGirt was not merely a single isolated expression: The Court has subsequently expanded its recognition of the inherent power of tribal law enforcement, *755 narrowly interpreted congressional language to minimize federal interference in tribal economic development, and required full reimbursement when tribal governments take over the provision of services the federal government is otherwise obligated to furnish. A new era of Indian Law has arrived, and with it arises the need not only to understand the relationship between tribal, federal, and state polities but also to begin the conversation focused on the inherent authority of the tribal sovereign.

The late Professor H. Patrick Glenn suggested that Indigenous legal jurisprudence should be contrasted from the common or civil law because it finds its origins in custom, practice, and tradition. He called these legal principles broadly “autochthonous” or “chthonic” law, from the Greek chthon , meaning earth, because the origin of Indigenous law is tied to this tradition and to the land on which Indigenous peoples have always lived. It is a return to these autochthonous traditions, and from them a reexamination of the obligations and duties that arise among sovereigns, that promises the next change in direction for the entire field.

This Book Review makes the case that we are entering a fourth wave of Indian Law scholarship, which recenters the conversation *756 on the inherent authority of the tribal sovereign. Professor David E. Wilkins’s (Lumbee Nation) newest book, Indigenous Governance , collects both contextual and primary source material that is instrumental to this work. In notable contrast to arguably similar and accomplished texts like Professor Stephen Pevar’s The Rights of Indians and Tribes , now in its fifth edition, or Professor N. Bruce Duthu’s American Indians and the Law , which has been so successful it has been reprinted, Wilkins meticulously documents case studies and examples necessary for a broader range of scholars to access the myriad faces, forms, and functions of the tribal sovereign.

Indigenous Governance does not make one specific point about the role of the tribal sovereign--its thesis does not defend a single understanding of the field--but that is precisely what makes the contribution so important. It is a survey of tribal governments in all of their heterogeneity. Its goal is to demonstrate the wonderful intricacy of tribal nationhood though a “comparative and illustrative analysis of the contents of these political systems.” Originating with Indigenous culture and tradition, Indigenous Governance demonstrates the many and varied ways that tribal governments exercise their inherent power. Wilkins has given all participants in our discipline a potent starting point: “Indigenous governments and the citizens of those polities, are uniquely situated--racially, politically, and culturally.” In documenting the very diversity of tribal nations, Indigenous Governance provides students and scholars of Indigenous law access to a full panoply of examples necessary to build arguments that start with the Indigenous sovereign instead of merely discussing Native nations in the context of their state or federal brethren.

[ . . . ]

Indigenous Governance is to the fourth wave of Indian Law scholarship what The American Indian in Western Legal Thought was to the third. It provides some new language through which to talk about the nature of tribal sovereignty, but even more importantly, it collects and presents primary source material that, taken together, make some definitive statements about the very nature of the tribal sovereign.

In the preface to Indigenous Governance , Wilkins remarks that he has been “building toward writing this book for just over forty years.” It shows. Indigenous Governance has clearly been honed over decades of writing and teaching about Native governance structures. Wilkins explains that his goal was to “produce a general, yet critical examination of the origins, evolution, and functions of a select number of Native governing and kinship systems from the pre-contact era to the present.” The text that *779 emerged has exceeded his expectations. While Wilkins may have been nominally writing for an interdisciplinary audience, Indian Law scholars will be among his earliest, most consistent, and most enthusiastic citations. Indigenous Governance is the text we did not know we needed until we delved into its pages.

As a fourth wave of Indian Law scholarship emerges with the tribal sovereign at its center, there will be an unimaginable variety of pieces that build their arguments and develop their ideas from the origins of autochthonous legal principles. To avoid criticism that these arguments stem from just one Indigenous tradition, it will be incumbent upon scholars to inform themselves of the diversity of tribal governance systems and of the stories, customs, and traditions that underlie them. Indigenous Governance promises to be a primary text upon which an entire generation of Indian Law scholars will rely. That is a fitting testament to a text that serves as the culmination of Wilkins’s four decades in the field.

Associate Professor of Law at the University of Alabama.