Teaching Indian Law and Creating Agents of Change

Volume 27, No. 2 - Winter 2015
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“There is no greater act of tribal sovereignty than taking charge of your own education.” —Verna Fowler, 2013

As students become more Confident in the subject matter, they become more confident in their ability to make change in their community. Photo courtesy of Jason Ordaz/ IAIA

As students become more Confident in the subject matter, they become more confident in their ability to make change in their community. Photo courtesy of Jason Ordaz/ IAIA

TEACHING FEDERAL INDIAN LAW CAN BE AN IMPORTANT component in fulfilling the mission and learning outcomes of many tribal colleges and universities (TCUs), but it also can be a vehicle to engage and empower Native students with the unique and sometimes tragic and depressing history of federal Indian law policies. When Native students have the opportunity to learn from Native faculty in an engaged manner, as seen from the perspective of those most affected by these policies, they will be able to fully appreciate the history of their tribes and their relationships to the federal government in a healing and holistic manner.

As a Native American lawyer teaching Indian law courses at a tribal college, I have discovered that such courses fill a unique role in American Indian higher education. They not only support tribal sovereignty, Native nation building, and tribal college missions, but they also provide a meaningful engagement with students in a safe and culturally communal setting. Also, as an instructor, I can empathize with the demoralized feelings that students sometimes experience when looking at the jaded history of the federal/tribal governmental relationship. This bonding of experience with my students exemplifies the importance of Native faculty supporting their Native students in the study of Indian law. It also underscores how such support at tribal colleges helps to provide students with a unique vehicle to empower themselves for legal careers or to be agents of change in their own tribal communities.

Teaching federal Indian law can be an emotional “land mine” for both the students and the instructor.

Since the founding of the first tribal college in 1968, tribal colleges have strived to provide culturally based curriculum in order to protect their cultural separateness and sovereignty. Most TCUs have a “cultural legacy” or other culturally based learning outcomes as part of their mission. For example, the core competencies at Southwestern Indian Polytechnic Institute (SIPI), where I teach, require students to be able to show a “knowledge of Native American history, cultures and traditions while recognizing the cultures and traditions of others on a national and global level.” Such outcomes fit well into the teaching of Indian law courses. The idea of inherent sovereignty of tribes and the power of self-governance is the lens through which tribal colleges should be teaching Indian law. I have found that the commitment tribal colleges have for transmitting culturally introspective material adds to the Native students’ higher-education experience.

At most TCUs, Native students are generally presented with curriculum that is culturally relevant and supportive of tribal sovereignty and self-determination. This goes hand-in-hand with federal Indian law courses. Having a foundation of culturally relevant knowledge regarding tribal government to federal government relations is one of the most important tools for Native students in a tribal college. By supporting a student’s comprehension of federal Indian law polices, TCUs support the ideology of Native nation building and tribal sovereignty. Supporting the teaching of Indian law at TCUs therefore supports tribal sovereignty.

Only at TCUs and using federal Indian law classes taught at TCUs can a Native student receive the kind of education that supports not only the preservation of tribal sovereignty, but also supports students emotionally as they learn the subject matter. Due to the somewhat one-sided nature of case law (mostly unfavorable to tribal sovereignty), the teaching of federal Indian law can be an emotional “land mine” for both the students and the instructor.

The idea of inherent sovereignty of tribes and the power of self-governance is the lens through which tribal colleges should be teaching Indian law.

This idea—that students may have strong emotional ties and reactions to Indian law curriculum—is explored by professor James Grijalva of the Northwestern School of Law of Lewis & Clark College in his article, “Compare When? Teaching Indian Law in the Standard Curriculum.” Although Grijalva asserts that Indian law should be part of an integrated pedagogical model in American law schools, he looks at problems students encounter when studying Indian law. Grijalva states, “Because law students seem obsessed with divining the “right” answers from class materials, they may express frustration and anxiety over issues lacking clear conclusions or coherence. That result is particularly likely in the face of modern Indian law’s continuing incoherence.”

In reality, all higher education students are looking for the “right” answer when taking courses, and that is especially true with Native students taking Indian law courses. They are part of the subject matter. However, in the case of Indian law, usually the “right” answer is one where the courts limit tribal sovereignty for the benefit of non-Indians, which elicits a very strong negative reaction to the coursework.

I have found that students taking my classes and especially students in my Indian law course often have such responses, but what better environment for Native students to deal with their litany of emotions than at a tribal college? While teaching some of the U.S. Supreme Court case holdings, I sometimes feel that classroom discussions become group therapy sessions, as students work through the sometimes depressing legal history of tribal/federal government relations. As a Native lawyer, having the same feelings of anger and depression when I studied Indian law, I think I am the best teacher to be able to understand their emotional conflicts.

This leads me to my second point about how TCUs are better able to support Native students—the faculty. Most of the teachers of Indian law courses at TCUs are Native themselves and therefore bring an internalized perspective that Native students could not obtain at a mainstream institution. Students can relate to the instructor, but I also believe that he or she becomes an unintentional role model and mentor.

As the only Native American student attending the University of Utah College of Law in 1991, I was grateful to be mentored by my Indian law professor, Alex Tallchief Skibine (Osage). Having been a student in higher education for many years, I was taken aback by Professor Skibine’s very passionate and very analytical delivery of his federal Indian law courses. I remember how angry he would get at many of the unfair and downright discriminatory decisions of the U.S. Supreme Court. Skibine thought it was perfectly valid for us as students to get angry and at times be disheartened, but he reiterated that we needed to use these emotions as a motivator to make changes in the legal world. I try to express those same ideas to my students as we take our classroom journey through federal Indian law.

Taking Skibine’s methods, I start talking with students about their emotions and reactions as they read some of the more questionable U.S. Supreme Court decisions. I try to move the conversation to “Where do we go from here?” or “What can we do about it so it doesn’t happen again?” Although most of my students are not particularly looking to go into a legal career, I think the cathartic discussions lead all the students to feel more empowered. I have observed that as students become more confident in the subject matter, they become more confident in their ability to make change in their community.

As for those students who are looking to go on to law school, most of them express their desire to make change not only in their tribal communities, but for the Native population as a whole. Other students are just plain angry and want to go to law school to right the wrongs in the long history of Indian law. I support that as well. Hopefully, all the support from the tribal college faculty will allow all these students to realize their potential, and will influence many of them to become those important change agents in the future of federal Indian law.

Only with that kind of passion can you truly teach and connect with your students on federal Indian law’s saddening and traumatic subject matter. And only at a tribal college can students and teachers work through all of this in a supportive and communal environment. At its best, it’s an empowering process.

However, the passion and commitment that comes with teaching Indian law from the Native perspective is not without its pitfalls. As Professor Skibine knew, and as I would later find out when I began teaching at SIPI, there are some unforeseen and problematic scenarios in teaching federal Indian law with such passion. One such scenario that I dealt with was a group of students who believed they were “superior” to the other Native students based on their “full blood” blood quantum. Using this as a major teaching moment, I explained to the class the history of blood quantum laws. It was almost comical seeing the “full blooded” students’ panicked looks and how this one pivotal discussion made me realize the importance of offering Indian law courses at TCUs. Having these types of volatile discussions concerning enrollment, discrimination, and the basic concept of what is an “Indian” forms the foundation of what an education at a TCU should look like. Being able to give the students examples from my experiences and having them be able to relate and make it relevant to them as part of our communal experience, I believe gives the students a better understanding of how they relate to themselves, their families, their own tribes, and their communities.

Another memorable exchange in my Indian law class dealt with tribal members living on- and off-reservation. One student spoke up and said that he thought that any tribal members who lived off-reservation should be considered “traitors” and that they should be kicked out of the tribe. Without missing a beat, another student spoke up and said, “You do know that Indian Country is places where we Indians were told to live by the federal government.” That pretty much ended the discussion. Only at a TCU could these kinds of exchanges take place. The openness and the shared frame of reference are unique to the Native student/Native instructor colloquial relationship.

So as I have pointed out, Native students who take courses in Indian law at TCUs generally gain insight and knowledge of the subject matter not available at mainstream institutions. The unique relationship between the Native students and the Native instructor allows for a better understanding of the emotional and sometimes traumatic study of federal Indian law. And, because of this unique relationship, Native students will feel more empowered in their abilities to make changes in their communities as future lawyers or change agents.

Christopher M. Harrington, J.D., is chair of the Liberal Arts and Business Education Department at Southwestern Indian Polytechnic Institute.

REFERENCES

Grijalva, J.M. (2006). Compare When? Teaching Indian Law in the Standard Curriculum. North Dakota Law Review, 82, pp. 697, 709.

Grob, A. (2010). Educational Empowerment of Native American Students: A Tribally Controlled College Leads the Way. In M.B. Spencer (Ed.), Images, Imaginations, and Beyond – Proceedings of the Eighth Native American Symposium, November 4–6, 2009. Southeastern Oklahoma State University, Durant, Oklahoma.

Meza, N. (2015). Indian Education: Maintaining Tribal Sovereignty Through Native American Culture and Language Preservation. Brigham Young University Education and Law Journal, 353, p. 361.


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