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Broadening the Legal Landscape

For Brenda Christie, the study of Native American law has proven to be not just a way to better understand her Cherokee heritage, but a necessary prerequisite to her current position as a legal services senior staff attorney for the Muscogee (Creek) Nation of Oklahoma. “Naturally I needed the training that you can get from just about any law school,” says Christie, “but the particular program I took also gave me a chance to understand the legal procedures of both the Cherokee and Creek nations.” At the conclusion of that program, Christie received a Native American law certificate.

Offered by the University of Tulsa College of Law, the Native American Law Certificate program, launched in 1990, reflects the school’s mission of trying to better serve American Indians and Alaska Natives in Oklahoma who, according to the 2006 U.S. Census estimates, make up 6.8 percent of the state’s population. This number is significantly larger than the 1 percent they represent nationally.

“We are geographically located within the area of the Muscogee (Creek) Nation,” notes Melissa Tatum, associate professor of law and co-director of the Native American Law Center at the University of Tulsa. The law center opened in 2000 and is designed to build on the success of the school’s Native American Law Certificate program.

“There are also almost 40 federally recognized tribes in Oklahoma, and we are within an easy drive of at least half of them,” Tatum adds.

The University of Tulsa’s program also reflects a larger movement among law schools across the country to both establish as well as expand Native American law course offerings that are increasingly being regarded as a fundamental component of a well-rounded law education. “

There is a greater awareness today in general of the importance of studying both Indian law as well as tribal law,” says Heather Dawn Thompson, president of the National Native American Bar Association and a member of the Cheyenne River Sioux Tribe. “And law schools across the country are gradually but surely responding to that with a variety of different programs.”

Those programs are mostly designed to study how tribal governments, of which there are more than 560 in the United States that are officially recognized by the federal government, interact with both federal and state governments. Much less common has been the study of the internal legal system of the individual tribes.

“But this should be an important area of study because every individual tribe also has its own court system, constitution and ordinances,” says Robert Anderson, associate professor of law and the director of the Native American Law Center at the University of Washington School of Law.

“Some tribes even have their own bar exams just like the states do, and in some cases there may also be differing federal laws that apply to different tribes and states,” continues Anderson, who is also a member of the Bois Forte Band of Chippewa in Minnesota.

“In New Mexico, for example, there are Pueblos with origins in some of the Spanish laws,” adds Anderson, “which means that laws concerning something like water rights may be a little bit different there than they would be for tribes in the state of Washington.”

For students who have studied and taken part in the inner legal workings of a given tribe, the experience is usually invaluable. Christie, for example, as part of her externship at the University of Tulsa, worked on a codification project for the Muscogee (Creek) Nation. She has also served as a court liaison for the Cherokee Nation. Viewing the practices of such tribal courts up close, Christie came to the conclusion that “the tribal courts are better organized than the state courts. They also embrace a more holistic application when it comes to creating better families.”

Christie continues: “I have worked in many juvenile court settings and have seen many instances in the non-tribal court setting of parents being separated from their children for one reason or another. But in the tribal court, there is an emphasis on really trying to keep the families together, even to the point of getting help for the parents if it means the children will get to stay with them.”

Anderson hopes that similar insights are gained for law students at the University of Washington who perform externships with just a single tribe. “Almost all tribes have inhouse attorney general’s and general counsel’s offices,” he notes. “So we place our students out at reservations where they can work with the tribal attorney’s office. They end up getting involved in all sorts of matters that come in the door. It could be business, contracts, asserting treaty rights, dealing with trespassers on tribal land, and hunting and fishing rights.”

Such externships, Thompson says, increase the likely effectiveness of a non-tribal law student or attorney through the building up of personal relationships. “If you are not aware of the individual culture, language, heritage and history of the community that you are supposed to serve, you will be ineffective as an individual. People won’t trust you, and they certainly won’t share information with you.”

A Strategic Advantage

A working knowledge of any given individual tribal government also greatly enhances employment prospects, says Tina Farrenkopf, associate director of the National Tribal Justice Resource Center in Boulder, Colo., which provides training for tribal judges as well as court clerks, bailiffs, prosecutors and probation officers.

“There really isn’t a very large number of people who completely know their way around a tribal court, compared to those who might with a federal or state court,” says Farrenkopf, who predicts that the demand for tribal court-able attorneys and other court officers is only going to increase.

“Any attorney who is practicing law in states like Arizona, New Mexico, Nevada, South Dakota, North Dakota or Oklahoma, in particular, is going to be at a strategic disadvantage if he or she has not studied how tribal governments work,” Thompson says. “Inevitably, there will be clients who will have some sort of business that needs to be settled in a tribal court, and if the attorney doesn’t know anything about that world, he or she will really be ill-serving the client.”

Although law schools in most states offer at the very least a federal Indian law course, which is usually both a survey and introduction to the material, the greatest concentration and variety of course and program offerings are based in the Great Plains and western states, where American Indians make up a larger percentage of the population.

In New Mexico, where American Indians and Alaska Natives make up 9.7 percent of the population, according to 2006 Census estimates, the University of New Mexico is home to the American Indian Law Center, which was founded in the mid-1960s and is the oldest law and public policy group of its kind in the country.

Although the American Indian Law Center is physically housed in UNM’s school of law building, it is an autonomous American Indian- run organization that, among its other services, operates the Southwest Intertribal Court of Appeals, which offers Pueblo and tribal court decision reviews and general support services for both the tribal and Pueblo court systems.

At the University of Arizona, loacted in a state in which American Indians/Native Alaskans make up 4.5 percent of the population, more than 10 courses exploring American Indian policy and law are offered Alaskans make up 4.5 percent of the population, more than 10 courses exploring American Indian policy and law are offered by the university’s James E. Rogers College of Law. Uniquely, UA also offers one of the few joint J.D.-master’s programs in the country, which is coordinated by the law school and American Indian studies program.

UA additionally sponsors an indigenous peoples law program as well as an Indigenous Peoples Law Clinic, with students providing legal assistance to regional tribes and working within the tribal court system.

But one of the largest and most diverse program offerings is at the University of Tulsa’s Native American Law Center, which emphasizes the study of tribal law, federal Indian law and international law as it applies to indigenous people.

“There is a lot going on both within the Organization of American States and the United Nations about the treatment of Indigenous people worldwide,” explains Tatum, “so this is obviously a very important area for us to become involved with.”

Offering anywhere from 25 to 40 credits of Indian law every year, the University of Tulsa also sponsors a four-week summer program on Indigenous Peoples Law, which is a study abroad program at the Geneva Institute in Switzerland.

“Our idea has been to explore as many aspects of Indian Law or Native American law as possible,” say Tatum, who adds: “Indian law is increasingly being recognized as an important part of the world and our legal culture today, which means that it should not be regarded as a niche or side program but as something that is a part of a fundamental basis for any well-rounded legal education.”

In seniority, the Native American Law Center at the University of Washington is nearly as old as New Mexico’s American Indian Law Center, with roots reaching back to the late 1960s. “It started during an era when a lot of American Indians in the Pacific Northwest and elsewhere were just beginning to assert their treaty rights and for the first time had lawyers from the various legal services programs and the federal office of economic opportunity representing them,” Anderson says.

Offering a two-quarter Indian law seminar that explores in-depth issues such as hunting and fishing rights, religious freedom, gaming, water rights and taxation, the UW program also features a unique tribal court criminal defense clinic. “We represent, as their public defenders, indigent Indian defendants in tribal court proceedings with tribal court judges and prosecutors,” Anderson says.

“This year we have 14 students who are in that particular program,” says Anderson, who adds that such tribal court exposure not only helps those students to sharpen their trial skills, but also gives them a hands-on feel for how tribal law works.

The combination of so many different, and in some states, entirely new American Indian law programs and course offerings, has given educators reason for optimism. “We are finally moving in the right direction. It’s been at a snail’s pace and I, for one, would like to see it move more quickly, but at least we are seeing progress,” says Tatum from the University of Tulsa.

“There are not only more law schools today going out of their way to make certain that Native American law is in their curriculum,” adds Tatum, “but some states have even started to include Indian law on their state bar exams, and that is for all students, whether or not you are Indian.”

Anderson agrees: “I think we are doing much better than before. We are producing young lawyers that are equipped to go out and work on a wide variety of issues. Best of all, tribal rights are now recognized as a part of the legal landscape, which is a great advance and a source of encouragement for students who want to be in this field.”

One of those former students is Christie, who says she is thinking about returning to school to expand her scope of practice.

“Right now I am only admitted to the Creek Nation and Cherokee Nation bar associations,” says Christie. “But I want to get admitted to more. This really is an area where you can never, ever learn too much.”

–Gary Boulard

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