The Indigenous Peoples’ Journal of Law, Culture & Resistance

This paper looks briefly at the complex history of Native people in the United States to show how First Amendment rights do not apply to them.Then reviews how tribes have used their unique political status to self-govern federal reservation lands and tribal members, how tribal members face challenges when using what they believe to be First Amendment rights, and the responses by tribal councils and leaders.Because First Amendment rights are not applicable, “many free speech claims heard in tribal courts” are settled applying “federal law as persuasive authority to decide” cases.3 If tribes do not want U.S.courts’ precedent infringing upon tribal sovereignty, especially when constitutional protections are not inherent for tribal members on a reservation, tribes may want to review and possibly amend their tribal constitutions to reflect their customs and values unique to their tribe, not the United States; considering there are valid reasons tribes would want to limit or restrict speech on the reservation.Finally, rather than allowing the First Amendment to fill constitutional gaps in tribal courts, this paper argues that tribes should affirmatively define speech protections and limitations through constitutionally grounded provisions rooted in tribal customs and values.This approach preserves sovereignty, reduces reliance on federal precedent, and equips tribal communities to address modern challenges on their own terms.