Designing and Teaching an Introduction to Federal Indian Law

Volume 27, No. 2 - Winter 2015
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Recently, the question has arisen as to whether or not federal Indian law should be taught at tribal colleges and universities (TCUs). To answer this, we must ask other questions: Why should such a subject be taught and who would teach it? Which department should be responsible for Indian law courses? Should they be offered through the Native American studies department, or should such courses be taught within the business administration department? Depending upon whether or not Indian law would be taught at all, every TCU will need to determine the answers to these questions based on the institution’s particular needs, circumstances, and staff expertise.

At Nebraska Indian Community College (NICC), during the spring 2015 semester, we taught a course entitled Federal Indian Law within the Native American Studies Department. The fit was excellent. After some initial indecision as to who could best teach the course, we decided that the tribal history professor was the best choice. While it could be argued that a tribal attorney should design and teach the course, this is often more pipe dream than reality. Tribal attorneys possess important knowledge and skills, but most simply do not have the time to teach a three- or four-hour course on a routine basis. Even if they did, they would likely require or expect compensation in line with standard attorneys’ fees, which is more than most tribal faculty budgets can afford. Such issues are largely absent with tribal history professors. Further, they can provide better historical and cultural context for the numerous legal actions and policies affecting their respective tribes. Since many tribal colleges teach their own tribal histories, all probably teach some aspects of historical federal legislation and policy anyway. For example, one issue that we at NICC deal with is the General Allotment Act—how and why was this such an important, yet devastating law? And, what does the phrase “federally recognized tribes” mean—where does it come from and why? How does it affect tribal sovereignty in the present? To be sure, most students bandy about these phrases and words without truly comprehending their meanings or implications.

So, why even consider teaching federal Indian law to students who may or may not, in most instances, pursue a legal career? Because knowledge is power. Providing our students with the basic answers to what law is, how it functions in today’s tribal world, how it impacts the future, and by showing them how ignorance of the past limits a tribe’s ability to deal with present and future issues, is a valuable and powerful tool. For instance, with the introduction of the Doctrine of Discovery and how it changed after Chief Justice John Marshall’s ruling in the Johnson v. McIntosh case, students learned that they, as tribal members, had a right to continue to occupy and use their own lands, but that also they were no longer the owners of their own lands. What a surprise! Through his decision, Marshall simply appropriated new lands for the burgeoning United States. American Indian tribes are only “occupiers” of the land—the “true” owner was the United States federal government, thanks to the U.S. Supreme Court under Chief Justice John Marshall! Imagine the astonished expressions on the faces of the students. One student asked, “You mean the land we have always lived on and died on was no longer ours?” The question was followed by a few unpublishable expletives.

It’s important to teach who makes law, how it’s implemented, and who interprets it.

Not that this reaction is necessary to know that certain facts are indeed grasped and understood, but it is gratifying to see complacent attitudes about “reservations” and “tribal sovereignty” being replaced with knowledge of what is now the law. By the time the course addressed the Cherokee cases of the 1830s, students fully comprehended the ramifications of the Johnson v. McIntosh ruling and how it cast a long shadow on almost all Indian lawsuits regarding tribal sovereignty that followed. This provided a great place to teach the legal meaning of “precedent” and how it works in law, thereby arming the next generation and, perhaps to some extent, current tribal leaders with an important understanding of tribal sovereignty and what remains of it. Knowing how to protect tribal sovereignty for the future, based upon knowledge of the past, can only strengthen future tribal governments.

In addition, a federal Indian law class shouldn’t begin and end with learning the wins and losses of tribal sovereignty. It must also contain knowledge regarding the major landmark cases and legislation that impact all federally recognized tribes. It is of great value for students to learn the sources of law (i.e., common, case, and legislation) in order to more fully understand the important role it plays in society. All affect tribal citizens in some manner, particularly as numerous tribes have developed their own law and tribal courts within the parameters of federal legislation and case law.

In addition, it’s important to teach who makes law, how it’s implemented, and who interprets it. Students are often surprised to learn that both Federal District Court and Supreme Court rulings in a tribal lawsuit impact all federally recognized tribes. They find that the individual justices themselves, whether conservative or liberal, affect rulings and the interpretation of federal Indian policy. Upon learning this, one student remarked, “So it matters as to not only the kind of ruling you get, but it also matters who sits on the Supreme Court!” Ahhh. Future Indian attorney in the making! Students learn the importance of knowing when to bring lawsuits and how the composition of the court, at that place in time, will affect outcomes.

Knowing the law is central to empowering tribal citizens.

The course also examines treaty-making and the various policy eras. At NICC, the course begins with the tribal independence era (1492–1787), moves through the treaty era (1787–1828), relocation (1828–1887), allotment and assimilation (1887–1934), reorganization (1934–1953), termination (1953–1968), and tribal self-determination (1968–present). Most tribal history professors are familiar with these eras and can organize classes to show how federal legislation and case law from these eras impacted tribal histories. The concentration is on the policy eras and the specific legislation enacted to reflect those policies. Students begin to understand that tribal sovereign governments operate within the framework of a political relationship with the United States—known as the trust responsibility—on a government-to-government basis. It is crucial for students to understand this, since far too many people believe that Indians get special treatment just because they are Indian. The instructor stresses that this government-to-government relationship is based on law, not on race. The dawning of knowledge on the faces of the students is a sight to behold.

Much of the class is also rooted in grasping a few of the fundamentals that a first-year law student must know. Students learn to read for content and how to interpret legal language and symbols. Students learn who the plaintiffs and the defendants are in a lawsuit, how to read legal opinions, and about the numbering system which the federal government devised for codifying law, legislation, and rules and regulations. They discover how lawsuits work their way through the system from trial court levels, through the appellate courts, to the Supreme Court, where final decisions reflect both content and skill.

Students gain a basic understanding of the General Crimes Act and the Major Crimes Act, enabling them to reflect on how federal jurisdiction supplanted traditional tribal methods of meting out justice. Students learn how these acts have been mechanisms for further curtailing tribal sovereignty. They study how Public Law 280 transferred civil and criminal jurisdiction on Indian lands in Nebraska from the federal government to the state government. Specifically, they discover how the Omaha Tribe was able to press the State of Nebraska to cede criminal jurisdiction back to the federal government.

Students also download and study the landmark cases and laws that reflect how Congress and the courts worked toward diminishing the sovereign powers of Indian tribes. Lone Wolf v. Hitchcock (1903), for example, reveals the plenary power of the legislative branch and its ability to make any law over Indian Country—a very sobering lesson. And of course, there’s the more recent Indian Gaming Regulatory Act of 1988 (IGRA), which curtails tribal economic development by requiring tribes to negotiate with the states to develop compact agreements. At the time of its passage, very few tribes attempted to stop the law, as they saw it as a green light for gaming—perhaps not fully understanding that IGRA is an erosion of tribal sovereign economic development, even on their own reservations. But students also learn about the Indian Child Welfare Act of 1978 and the Indian Civil Rights Act of 1968, which provide protections to tribal citizens from their own and the U.S. governments.

NICC’s Indian law course provides students with a good understanding of how law, and particularly federal Indian law, affects all federally recognized tribes and their citizens. In addition, students gain the skills necessary to read federal legislation and understand its meaning. They become familiar with the policies that laws reflect and how the federal government makes law. Such knowledge is central to empowering tribal citizens in determining their own futures. Not all students want to become attorneys, but they will nevertheless learn and understand how law originates and works, and how it sometimes strengthens tribes and other times weakens them. As future leaders within their tribes, being aware, alert, and knowledgeable is power.

Wynema Morris, M.A., teaches in the Native American Studies Department at Nebraska Indian Community College.

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