Note: Protecting Native Americans: The Tribe as Parens Patriae

Abstract

In his treatise, Federal Jurisdiction, Erwin Chemerinsky advocates protection for citizens through litigation on their behalf by sovereign entities under parens patriae standing. 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.. 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. Third, this Part asserts that although the framework of tribal sovereignty as a retained right is problematic, modern parens patriae standing exists within this paradigm. This would make it difficult for Tribal governments to assert parens patriae standing, as the parens patriae doctrine was not conceived of, let alone exercised, prior to litigation in United States Courts. If the District Court had applied the parens patriae doctrine correctly, the Kickapoo Traditional Tribe of Texas would have had parens patriae standing. In the future, Courts looking at Tribal parens patriae standing should examine how the Supreme Court has laid out the parens patriae doctrine. 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.