Producing a Tribal Citizenry Literate in Law and Jurisprudence

Volume 27, No. 2 - Winter 2015
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IAIA DEPARTMENT CHAIR STEPHEN WALL

At IAIA, department chair Stephen Wall (right), orients the Indigenous Liberal Studies Program to give students a foundation in problem-solving, writing, and communication—tools which law schools value. Photo courtesy of Jason Ordaz/IAIA

The relationship between American Indians and the U.S. federal government and state governments is complicated. It is a relationship that controls almost all aspects of tribal life and has resulted in American Indians being the most legislated people in the United States. For many years tribal people relied on non-Native attorneys to help navigate their communities through the maze of laws, court decisions, and administrative rules. But beginning in the late 1960s, an experimental program at the University of New Mexico School of Law trained Indian lawyers to serve as tribal attorneys, judges, prosecutors, and in other law-related positions. Since that time there have been thousands of Natives who have attained their law degree and have now assumed the responsibility of leading their communities through the legal challenges they face.

The increasing number of Indian lawyers, together with a variety of other factors, has led to a great deal of progress since the late 1960s. Our time is an era characterized by self-determination and community development in American Indian policy. A wide range of factors has influenced these changes, including the worldwide decolonization movement, a growing focus on minority and women’s rights, the renewed pride in Native identity, and increased resistance to assimilation.

Prior to the self-determination era, the United States imposed the policy of “Termination” with the goal of eliminating the federal/ tribal relationship and relocating Native people away from their tribal communities. Through the 1950s, tribal leaders and activists cut their political teeth fighting the various Termination-era schemes. They became sophisticated in the federal legislative and executive processes. They established organizations such as the National Congress of American Indians and other lobbying and political groups to advocate and work toward greater self determination for Indian people.

The development of the experimental Indian law program at the University of New Mexico was the first attempt to provide a way for Natives to enter law school and the legal profession. This helped create a large number of legally trained leaders who would go on to fight to improve their communities and to work for American Indians at large. As the tenor of Congress changed and the disastrous Termination policy was repudiated, a number of far-ranging and important U.S. Supreme Court decisions began to define the relationship between tribal governments and their federal and state neighbors. For example, Williams v. Lee was the first case to recognize the authority of tribal courts to decide civil cases that involved non-Indians on reservations.

TCUs may be the only place in America where Indian law can be taught from a perspective that is both critical and culturally specific.

Congress also passed a number of laws, including the Indian Self-Determination and Education Assistance Act of 1974. Although the act was lauded as a major step towards greater self determination, its exercise has been one of progress and frustration: progress in the sense that tribal priorities and visions are supported and funded, but frustration in that those priorities are subject to funding limitations and cultural restrictions with program rules and processes based on American, not tribal, standards. It should also be noted that Congress restored a number of tribes that had been terminated during the 1950s. And it was also this turn toward greater self-determination that brought about the tribal college movement. But with all of the progress, there is still much to be done, and Native people must continually work to protect the gains that have been made. Today, the importance of Native lawyers and the understanding of Indian law are paramount.

By and large, legal education is something that is not a part of reservation life, even in its most basic form. Generally, tribal communities have not had access to paralegal and other educational programs that increase awareness of the law and the legal system. Legal education, at both the undergraduate and graduate levels, has been the purview of colleges and universities far from tribal communities. Those who want a professional or paraprofessional degree must leave the tribal community and attend an institution that serves the general population and, for many, has little or no connection to Indian law or reservation life. While there are a few law schools that do have Indian law programs, the majority do not. But tribal people find themselves continually touched by the law, especially because of the unique tribal/state/federal relationship. In view of its importance, how can legal education become part of the basic educational framework in tribal communities? Tribal colleges and universities (TCUs) are in the best position to remedy that problem.

TCUs may be the only place in America where Indian law can be taught from a perspective that is both critical and culturally specific. Critical in the sense that one can recognize the word of law, but also understand that justice and the application of the law have specific impacts in particular communities; culturally specific in the sense that a TCU can explore the relationship between Indian law and the tribal culture, and study the impact of Indian law on the integrity of the community.

Teaching Indian law in a tribal college becomes more than simply teaching the principles of law—it is an exercise in self-determination through critical and culturally specific legal analysis. Thus there is a political aspect to teaching Indian law at a tribal college, as it requires that the program or course acknowledge the realities of the American legal system while advancing tribal notions of jurisprudence, law, and legal process. In some ways, teaching Indian law at a TCU provides a counter-narrative to mainstream legal education.

Many people assume that Indian law is based on tribal legal concepts and jurisprudence. But that is not the case. Indian law is a specialization of American law that focuses on the relationship between Indian tribes and the federal and state governments. Moreover, the American legal system is rooted in English jurisprudence and therefore reflects culturally specific social, political, and economic values. For example, in Anglo-American jurisprudence, the basic assumption is that amassing and protecting private property is of the highest value, often being elevated above human life. Many laws reflect that assumption.

The traditional Anglo-American legal education is not a process that teaches the law, but one that teaches students how to think about the law. Legal principles are taught through a process of analyzing cases—sometimes through the Socratic method and other times through different methods. Either way, the legal education process is designed to change how a person sees and thinks about problems. In some ways, legal education can be seen as a form of assimilation. This is particularly true for law schools, since they are creating professionals who must be a members of the Bar Association to practice law.

Alternatively, each tribe has its own jurisprudence based on its unique history, culture, language, and ethics. Tribal laws reflect tribal jurisprudence. This difference in jurisprudence illuminates the real cultural gap between the West and Indigenous communities here in the United States. It also creates a conflict between the American and tribal legal systems. Because of this conflict and the assimilative nature of the relationship between the U.S. and Indian nations, tribal jurisprudence and law are often ignored or relegated to an inferior status.

Still, it is important that tribally specific jurisprudence and law be taught as well, and TCUs can play a vital role in this regard. Each tribal college (with the exception of Southwestern Indian Polytechnic Institute, the Institute of American Indian Arts, and Haskell Indian Nations University) is a tribally specific institution, meaning that it exists as an exercise of the tribe’s educational sovereignty. Cultural values, beliefs, language, and experiences vary from tribe to tribe and are expressed differently from one TCU to the next. The unique history, culture, and language that form the basis for tribal jurisprudence and law make teaching Indian law at tribal colleges different than teaching Indian law at mainstream institutions. Indian law consists of general principles of law that impact all tribal lands and people in the United States. But understanding tribally specific jurisprudence is equally important.

For TCUs the legal education process is not necessarily one of preparing people to become members of the Bar Association. For most TCUs, legal education can be one of providing basic knowledge of one’s tribal and individual legal status, as well as providing a forum for the exploration and deliberation of tribal jurisprudence. These goals remove the need for an assimilative pedagogy to legal education and refocus the process to one of explanation and guidance. This also means that Indian law and other law courses need to be designed to meet the needs of the community and not a professional association. What does the community need in terms of legal knowledge? What is the best way for a TCU to provide that knowledge? Each tribal college and its governing body, administration, faculty, and constituents will need to wrestle with these questions.

When considering whether to develop an Indian law course or program, TCUs will have to determine who will do the teaching. Geographic isolation and lack of funding, along with other factors, have made it difficult for many TCUs to attract qualified faculty for their courses and programs. For Indian law this is a particularly important issue. Tribal legal issues and questions of tribal status are political questions, based on levels of ideology. If the person teaching the Indian law course is not fully attuned to tribal perspectives on issues of self-determination, sovereignty, and the exercise of tribal governmental authority, students will be left with an incomplete, limited, or inaccurate view of their tribe’s legal, economic, and cultural status, as well as its options. Or they may privilege American law to the point of not appreciating tribal jurisprudence. These issues add an additional burden to the TCUs’ usual complications of attracting qualified faculty.

A law program at a TCU can provide the basic tools to work on the community’s governmental and business concerns. An Indian law course can also serve as the foundation for many other legally oriented courses related to tribal life, including courses on tribal government, history, and land tenure. Similarly, the exploration of tribal jurisprudence and law is important in order to ensure that Indigenous values, institutions, and worldviews are protected and strengthened. It is important for students and the community to understand their tribe’s government, court, relationships with neighboring governments, as well as other legal issues. It is also important for students to understand how their lives are impacted by both the American and tribal legal systems.

Teaching Indian law in a tribal college is an exercise in self-determination.

TCUs offering baccalaureate degrees are fully capable of producing graduates who can enter American law schools and compete with mainstream law students. But more importantly, all TCUs can produce a tribal citizenry that is literate in jurisprudence and law. A citizenry with an understanding of law is a great way to develop capacity in the tribal community. Individuals and communities make decisions daily based on Indian law and its application to a specific community. Having a range of people with an understanding of Indian and tribal law, from top leaders to program managers and department heads, can be a great asset to the community. Understanding the law is a significant resource for the community.

A legal education for the community may be the goal for a TCU, but there are also those students who have the dream of becoming attorneys. Having a pre-law program or offering specific law courses can help those students achieve their dreams. Yet for a person who wants to prepare for law school, developing skills in reading, writing, and research is paramount. Some people have gone so far as to state that the best major to have to prepare for law school is an English major, as the law operates strictly in a world of thought and words. The better a person can read and write and express him or herself through the written word, the better chance of his or her success. Pre-law and political science courses help, but since law school is mainly concerned with retraining students’ minds and their approach to problem-solving, reading, writing, and other communication skills are paramount in importance.

At the Institute of American Indian Arts, the three 2015 graduates who received bachelor’s degrees in Indigenous liberal studies have expressed an interest in law school. So far, one has been accepted. The program that produced these students is not based in law or political science. Our Indigenous Liberal Studies Program only has two courses that are legal in content: Contemporary Tribal Government (a requirement) and Federal Indian Law (an elective). The remainder of the degree plan requires courses from a variety of disciplines and about 18 hours of research-related coursework. Thus it is the development of writing, presentation, and research skills that has prepared these students for law school. The best opportunity that a TCU can provide for students with aspirations of a career in law is to have top-notch writing and reading standards in all of the courses offered.

Legal education is an important aspect for the development of tribal communities. Indian law is foundational to the lives of those American Indians and non-Indians living on reservations throughout the United States. Court cases, statutes, and administrative regulations impact American Indian lives more than the lives of most Americans. But there is more to tribal legal education than Indian law. Tribal jurisprudence is an important aspect of protecting tribal institutions. Tribal colleges and universities can be on the front line in providing legal education to reservation and rural communities. TCUs are unique—they can develop legal education programs that address the need for understanding Indian law, as well as provide a forum for the exploration and development of tribal jurisprudence and laws specific to their history and culture.

Stephen Wall, J.D. (Ojibwe), is chair of the Indigenous Liberal Studies Program at the Institute of American Indian Arts.


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