Examining Indigenous Homelessness via Indigenous and non-Indigenous American Legal Cases

Introduction

Within the United States, the experience of homelessness has been consistently recognized as a growing issue that needs more attention. According to a report done by the United States Department of Housing and Urban Development, homelessness nationwide has increased in the past year by 12 percent, or roughly 70,650 more people, and continues to be a problem that devastates whole communities and disproportionately impacts people of color. More specifically, those who are Indigenous American are overrepresented amongst the homeless population and even experienced the largest increase in homelessness between 2022 and 2023 at 18%. In comparison, African-American populations were the second largest group to have an increase of 14%. This increase is significant when considering states such as New Mexico, who had the highest percentage increases in homelessness at 50% in the past year, are also home to indigenous groups like the Navajo Nation and Hopi Tribes [1].

Despite the prevalence of Indigenous homelessness within the United States, there has been a severe lack of attention given to the unique experience of these individuals and the paradox of being homeless on land that had once belonged to your ancestors but that colonization has taken away. Besides the physical loss of land that colonization has caused, there are also serious cultural and social consequences from colonization for Indigenous populations experiencing homelessness. Many Indigenous understandings of home emphasize cultural and spiritual meanings of home and the people one is amongst. When Indigenous homelessness specifically occurs, there is also a spiritual and cultural loss where individuals are not just separated from traditional lands, but also family networks and their own personal identities [2].

In contrast, non-Indigenous American conceptions of home do give attention to the sanctity of the home and its role in community life, but this view is often overshadowed by economic notions of home and the idea of it as a good that is to be produced and distributed on the private market. The perspective of “Housing as an economic good” is deeply embedded in American housing laws and policies. Though these laws attempt to regulate and balance the various needs of residents, lenders, and government, there is a trend in these laws, and court cases, to prioritize the needs of the markets and economies [3]. 

For many Indigenous people, homelessness as a result of colonization and the forced assimilation that follows it creates rifts within communities. For those who stay on ancestral homelands, they may still have their land but the loss of community creates a sense of isolation and the feeling that “there weren’t many people like us anymore.” [4] Conversely, those who assimilate into the majority culture face similar challenges regarding their identity and feelings of connectedness to their culture and heritage. Both instances display the important spiritual and cultural losses related to Indigenous homelessness. This also creates a strange paradox for Indigenous people since some may view themselves as homeless within a country that was once theirs, and has since been stolen and transformed into something entirely different.

Much of the legal and political response toward homelessness lacks a more comprehensive and holistic vision of what constitutes a home for Indigenous and non-Indigenous populations. By comparing and analyzing legal cases about homelessness from Indigenous American tribal lands and nations with cases from non-Indigenous American law, this paper will hope to illustrate the unique experience of Indigenous homelessness and allow readers to discern important cultural and moral differences in the ways society responds to the homelessness crisis.

Indigenous American Cases

This next section of the paper will describe three legal cases from Indigenous American law that feature homelessness as a key issue of the case. Background information on the cases will be provided as well as the rationale for the decisions made by the respective courts in each case. Then, the cases will end with a connection to Indigenous homelessness.

Dean Haungooah v. Delores Greyes, Supreme Court of Navajo Nation [5]

Coming from the Supreme Court of the Navajo Nation, Dean Haungooah v. Delores Greyes (2013) explores restorative justice and rehabilitation. In this case, Dean Haungooah, the Petitioner, had his probation revoked by the Kayenta District Court because he had violated its conditions. Specifically, Haungooah violated his probation by leaving the jurisdiction of the Navajo Nation without prior approval. Unfortunately, this violation occurred because Haungooah’s family, who used to reside in Kayenta, a town within the Navajo Nation, decided to leave the reservation, rendering him homeless. Despite alerting Probation and Parole Services (PPS) about his situation and needing to leave the jurisdiction in an attempt to find shelter and housing, his probation was still revoked. Additionally, PPS failed to properly serve Haungooah about revocation proceedings being brought against him and inform him of his right to counsel.

Within their opinion, the Supreme Court of the Navajo Nation emphasizes the concept of Diné bi beenahaz'áanii, an idea rooted in restorative justice that imposes a duty upon the government to provide avenues for restoration and rehabilitation. Diné “throws no one away” and enshrines a fundamental right of the people to expect that their government agencies will pursue restorative measures and forms of justice, rather than doling out punishments that increase the burden faced by community members in already precarious situations. This belief implies that the prosecution and PPS had the responsibility of trying to offer Haungooah solutions to his issues instead of revoking probation and reinstating his original jail sentence.

Circling back to the idea of Indigenous homelessness, this case demonstrates an explicit obligation that the government has to not just protect the rights of its people but to care for them and ensure that they flourish, regardless of their housing status. By following a model based on restorative justice, the Navajo Nation acknowledges the complex factors that can lead to an individual’s homelessness and chooses to offer assistance rather than automatically assigning blame. This helps shift views of homelessness from one that paints it as the individual’s fault to one where the government and larger systems of power are also responsible. A mindset like this is helpful when trying to address the actual issue because it focuses on the missing parts of society’s social safety net that too many people fall through in life, and allows privileged community members to develop more compassionate and understanding views of those going through homelessness.

Alphonso Mahkewa v. Constance Mahkewa, Appellate Court of the Hopi Tribe [6]

Moving on to the Appellate Court of the Hopi Tribe, Alphonso Mahkewa v. Constance Mahkewa (2004) illustrates the idea of fairness and the significance of home. In this case, Alphonso and Constance Mahkewa are a divorced couple. As part of the divorce decree, Alphonso was ordered by the Hopi Trial Court to pay spousal support and regular mortgage payments on a mobile home belonging to his former wife, Constance. However, Alphonso never made the mortgage payments, the mobile home was repossessed, and Constance was only given two days to move out. By violating the Order, the Trial Court found Alphonso in contempt and eventually ordered him to pay $39,000 to his ex-wife or build her a new home equal in value. However, Alphonso filed for bankruptcy and had the $39,000 discharged which greatly improved his financial situation while his ex became homeless and unemployed.

Though the Appellate Court argued that this particular remedy of providing a new home is in line with Hopi Customary Law, they also found that it is a difficult remedy to enforce. Additionally, the Court found that this remedy fails to capture the significance of the home within Hopi culture by emphasizing more of the monetary value and proprietary aspects of a home. Through this, money and the home are seen to have the same level of cultural significance which adheres more to a non-Indigenous American conception of the home. As previously stated, these understandings can have familial and cultural notions but usually take on more economic ones. Conversely, Hopi culture sees the home as a sacred place where children can learn, take in Hopi teachings, and where the wife fulfills duties and obligations. By simply requesting for a new home to be built and emphasizing the numeric value of the home, the Trial Court did not pay proper attention to a home’s cultural significance. In their conclusion, the Appellate Court remanded the case to the Trial Court and ordered a new divorce decree that reflects the Hopi sense of fairness, the cultural importance of home, and the current financial statuses of both parties. The Appellate Court also permitted the Trial Court to enforce alternative methods for the ex-husband to provide shelter.

Relating this to Indigenous understandings of homelessness, Mahkewa v. Mahkewa clearly shows the greater importance of home beyond its practical uses as a form of shelter. For many Indigenous groups, the home is tied to one’s sense of identity and is essential to learning about yourself. When such an important aspect of one’s life journey is taken away, it makes it harder to nurture that sense of identity and have it be rooted in the culture of those closest to you.

Additionally, this case raises concerns about fairness and homelessness, which is important to understanding the response of Indigenous courts and leaders. Rather than simply letting Constance be homeless, the Court pushed for a remedy that was fair for both sides so that Alphonso was not given a task disproportionate to his available resources and that Constance would nevertheless have adequate shelter. This shows how some may view not having a home to develop oneself culturally and personally as unfair because the home is a crucial part of fostering one’s sense of identity, which is something all people should have the opportunity and ability to do. Prioritizing fairness, even when it requires extra effort, shows the value of all people regardless of whatever special privileges or statuses they may or may not hold. This case also illustrates fairness occurring at the individual and community level wherein giving individuals what is fair to them, also allows for the communities to maintain a harmonious state where all have their due.

Fort Defiance Housing Corporation v. Michael and Erin Lowe, Supreme Court of the Navajo Nation [7]

Returning to the Supreme Court of the Navajo Nation, Fort Defiance Housing Corporation v. Michael and Erin Lowe (2004) is a case that also explores the idea of fairness and the cultural significance of home, but this time it is within the context of Navajo culture. In this case, the Fort Defiance Housing Authority filed complaints in the Shiprock District Court for forcible entry and eviction against tenants Michael and Erin Lowe for failure to make payments. The Lowes did not respond to the complaint so an Order was filed asking them to vacate and remove their property from the premises, in addition to paying $5,329 in past due payments. Eventually, an appeal was submitted. Under normal circumstances, the appeal would be dismissed but the Court was compelled to consider it due to concerns about whether dismissal would violate the fundamental right to fairness of the Appellants.

In its opinion, the Court takes notice of the fact that home, or hooghan, within Navajo culture, is more than just the place where one resides. It has high spiritual centrality, is the place where families are established, and provides children with a space to learn about themselves and their place in the greater world. In general, Navajo tradition regards the home as the center of all relationships. This means that in cases where one can be separated from their home, there is an absolute right to due process. Specifically, the Navajo Nation's form of due process is informed by the principle of K’e, an idea that pushes for those who live in disharmony to be brought back into the community as a way to reestablish order. Naturally, legal procedures and protocols that result in homelessness for individuals create disharmony and can be even harder to remedy if the Appellate procedures are burdensome and hard to navigate.

Connecting this to Indigenous homelessness, this case, similar to the Hopi Tribe, expands the meaning of what a home is beyond its proprietary sense. In addition to being a place for personal development on an individual level, it lays a foundation for how people should relate to others around them. By focusing on this relational aspect of home, the Navajo Nation displays a desire to build strong and cohesive communities. Part of building these types of communities means respecting the importance of home for people. By engaging in legal and procedural practices that maintain respect for the home, the Navajo Nation holds itself accountable as a society and recognizes that extra work is worth being done to ensure that community members are not homeless and can actively relate to and engage with those around them.

Comparison to non-Indigenous American Cases

This next section of the paper will follow a similar format to the previous one. Here, three cases from non-Indigenous American law that feature homelessness have been selected for comparison to the cases from Indigenous American law. The comparison is meant to illustrate important differences between the ways in which Indigenous and non-Indigenous American society respond to the homelessness crisis.

Kohr v. City of Houston [8]

In Kohr v. City of Houston (2017), a class of homeless individuals filed a lawsuit against the city of Houston alleging that the anti-camping and panhandling ordinances violated their rights to free speech, protection from unreasonable searches and seizures, protection against cruel and unusual punishment, and protection against vagueness. They sought preliminary injunctive relief, which would prevent the city from continued enforcement of the aforementioned policies. However, the Court denied this motion because it believed that the Plaintiffs failed to meet the necessary criteria for relief. Three important criteria that the Court used in this decision include being able to prove that immediate suffering and irreparable harm will be experienced if the injunction does not happen, that the threat of harm to the Plaintiffs outweighs harm the injunction may cause Defendant, and that the injunction does not undermine the public interest.

When comparing this case to Fort Defiance Housing Corporation v. Michael and Erin Lowe and Mahkewa v. Mahkewa, the idea of fairness arises. Specifically, these cases display fairness as it relates to equality and equity. For this comparison, equality can be seen as an attentiveness and intention toward treating all people the same regardless of their statuses. In contrast, equity pays special attention to the differences in these statuses when deciding how to treat people. This case lacks fairness in an equitable sense by imposing a challenging set of criteria that must be met by the Plaintiffs, despite their homeless status. In Kohr v, City of Houston, differences in housing status seem to hold little weight in the case even though this specific status is likely to be indicative of other social disadvantages that would make it harder to successfully navigate a court case. Instead, fairness is approached in a more equal sense that assumes social factors, such as housing, are insignificant factors in imposing obstacles for parties in a case. Additionally, the specific criteria of not undermining public interest can be viewed as unfair because it seems to favor and prioritize the needs of the general population, who are likely to already have shelter and the necessities of life, against those who are homeless and cannot even find a place to designate as their own.

City of Seattle v. Long [9]

Looking at City of Seattle v. Long (2021), this case follows Steven Long who worked as a general tradesman and stored work supplies in his truck, which also doubled as his home since being evicted from his apartment. Long’s truck broke down in a lot that was owned by the city of Seattle and an impoundment notice was put on the truck. This notice only gave Long seventy-two hours to move his truck. Due to the truck being broken and inadequate funds to pay for a tow, Long could not move it and it was impounded, leaving him unsheltered and unable to work since he no longer had access to his work supplies. Long brought a variety of claims to court, one of which referenced Article I, Section 7 of the Washington State Constitution which said that individuals cannot be disturbed in their private matters without the authority of the law. The Court eventually rejected this claim because the city of Seattle had no other alternatives to impoundment, so their action was viewed as reasonable under the circumstances.

Comparing this case to Haungooah v. Greyes, City of Seattle v. Long offers a more punitive form of justice that shifts the responsibility of housing and homelessness off of governments and leaders and onto individuals in society. Unlike the Navajo Nation, whose government has an explicit responsibility to facilitate the flourishing of its people, this case reflects the idea that, even in harsh and difficult circumstances, individuals must be responsible for themselves and find their own solutions. However, this notion dismisses the important connection between responsibility and freedom. For someone to be able to fully carry out their responsibilities, true freedom in life is required [10]. This means they can’t be restricted by harsh conditions such as homelessness which act as an obstacle in fulfilling responsibilities and taking care of oneself. Additionally, while Fort Defiance Housing Corporation v. Michael and Erin Lowe uplifts the idea of K’e, which reflects the idea that government laws and policies should not result in homelessness for community members, this case seems to do the opposite by allowing a city to engage in practices that add to the homelessness crisis and increases the heavy burden faced by people in this situation. Furthermore, this case also demonstrates a clear absence of fairness, a key cultural value for the Hopi Tribe that is expressed in Mahkewa v. Mahkewa. As someone who already lacked a traditional form of shelter, Long was already in a vulnerable position and inequitable procedures unfairly exacerbated his situation and left him worse off than he was before.

Martin v. Boise [11]

Turning toward Martin v. Boise (2019), this case focuses on a group of homeless individuals who alleged that the City of Boise’s ordinances about camping and disorderly conduct violated their Eighth Amendment rights. After intense litigation, the ordinances were amended so that they could not be enforced against homeless individuals on nights where there were no available shelter spaces. Unfortunately, there were still other reasons as to why individuals could not access shelters besides a lack of space. These included exceeding limits on how long one can stay at a shelter or failure to comply with religious requirements. Specifically looking at the Eighth Amendment, the Court found that as long as there are no indoor options, governments cannot criminalize homeless people for sleeping outside on public property under the false premise that they actively chose to be in that situation.

Though this case seems to display more fairness than the previous non-Indigenous American cases by not criminalizing individuals for their homeless status, it is also a very conditional form of fairness that is dependent on a complete lack of resources for homeless individuals. So, in this case, fairness is only achieved due to the fact that higher systems of power cannot criminalize homeless individuals unless these systems have no other option. When the resources actually become available, this conditionality is also present since there are sometimes specific requirements or limits that must be adhered to. Additionally, this case displays a lack of care for the homeless. In comparison to Haungooah v. Greyes, the government does not go the extra mile to ensure that homelessness as an issue is remedied. Instead, it allows it to persist under certain circumstances rather than finding alternatives that tribal law persuasively argues freely support the flourishing of individuals

Conclusion

Through the comparison of legal cases about homelessness from Indigenous American tribal lands and nations with cases from non-Indigenous American law, this paper has attempted to portray the unique experience of Indigenous homelessness and make clear distinctions in the ways different societies respond to the homelessness crisis. When looking at cases from Indigenous American tribes and nations, a clear regard for the person as a valid and important part of the community is expressed. Indigenous responses take the time to acknowledge the inherent dignity of individuals regardless of their position in society. This is seen most prominently through active governments that consistently seek restorative forms of justice, strive for fairness, build community, and consider the special circumstances of situations. Conversely, cases from the non-Indigenous American legal system reflect the individualistic ideals that are emphasized in its society. In these cases, people are expected to take care of themselves even when they lack the capacity and freedom to do so. Also, in these cases from American law, the government’s role is more limited in the services they are willing to provide and responsibility is pushed off to others. Additionally, more punitive measures are taken that can readily increase the burden faced by homeless individuals. Besides the fact that homelessness is a growing issue in America, an examination of Indigenous approaches to the issue is needed because of their collective view of society. Within Indigenous and non-Indigenous American society, there is a clear understanding that homelessness and other social issues do not occur in isolation. However, Indigenous approaches apply this understanding to people as well, and acknowledge that nobody truly lives in isolation from others. Though society tries to discard those experiencing homelessness, they are still a part of the community. A continued disregard for their existence only allows the issue to grow and affect more of the country’s most vulnerable groups.

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Footnotes

[1] de Sousa, T., Andrichik, A., Prestera, E., Rush, K., Tano, C., & Wheeler, M. (2023, December). 2023 annual Homelessness assessment report (ahar to congress) part 1: point-in-time estimates of homelessness, december 2023. The 2023 Annual Homelessness Assessment Report (AHAR to Congress) Part 1: Point-In-Time Estimates of Homelessness, December 2023. https://www.huduser.gov/portal/sites/default/files/pdf/2023-AHAR-Part-1.pdf

[2] Christensen, J. (2013). ‘Our home, our way of life’: spiritual homelessness and the sociocultural dimensions of Indigenous homelessness in the Northwest Territories (NWT), Canada. Social & Cultural Geography, 14(7), 804–828. https://doi-org.libproxy.scu.edu/10.1080/14649365.2013.822089.

[3] Iglesias, T. (2007). Our Pluralist Housing Ethics and the Struggle for Affordability. Wake Forest Law Review, 42(2), 511–593.

[4] Thistle, J. (2019). From the Ashes: My Story of Being Indigenous, Homeless, and Finding My Way. Simon & Schuster.

[5] Haungooah v. Greyeyes, 11 Am. Tribal Law 171 (2013)

[6] Mahkewa v. Mahkewa, 5 Am. Tribal Law 207 (2004)

[7] Fort Defiance Housing Corp. v. Lowe, 5 Am. Tribal Law 394 (2004)

[8] Kohr v. City of Houston., CIVIL ACTION NO. 4:17-CV-1473 (S.D. Tex. Dec. 28, 2017)

[9] City of Seattle v. Long, 493 P.3d 94 (Wash. 2021)

[10] Sen, A. (1999). Development as freedom. Knopf.

[11] Martin v. City of Boise is 920 F.3d 584 (9th Cir. 2019)