Law School Training of American Indians as Legal-Warriors

This article explores four areas involved in training lawyers appropriate to the needs of tribal nations. First, the American Indian tribes, as the indigenous sovereigns, present legal needs and opportunities unique from other minority groups. Development of Indian law depends on the exercise of sovereign power by the Indian nations, not constitutional equal protection of an ethnic minority. The architectural work of developing the governments, i.e., creating tribal law and operating tribal courts, calls for the legal-warrior\u27s critical ability to meld customary perspectives with knowledge and skills acquired in legal professional training. Second, the specialty of American Indian law as jurisprudence is affected by the training opportunities for American Indians in law schools. Specialists in American Indian law are important, regardless of their ethnic identity. Only American Indian individuals, however, can have the dual identity of indigenous community members and of practicing attorneys. Legal-warriors are cultural as well as legal advocates. Legal-warriors are necessary if Indian law, especially the federal law, is to be decolonized. Decolonization requires the challenging of doctrines with disabling effects upon native peoples, such as the plenary power doctrine. Decolonization also requires that American Indians speak for themselves, reversing the history of outside advocates speaking for Indians instead of acting as collaborators with American Indian attorneys. The third area explored in this article is the limited pool of potential legal-warriors. The population of American Indian students who enter and complete undergraduate education is small. The negative impact on the admission to law schools, other professions, and graduate studies handicaps the tribal nations. Fourth, the small body of American Indians who enter and complete law school reveal the emerging pool of legal-warriors. One cannot assume or prescribe that all or most American Indian attorneys will specialize in Indian law; specialization is an individual\u27s career choice. However, the law school experience, the financial and curricular resources devoted to American Indian needs, and the outcomes for American Indians who graduate from law school greatly determine whether an American Indian can become a legal-warrior. If law schools are to produce legal-warriors, then the institutions must affirmatively embrace major changes in their curriculum and environment for legal training. This legal-warrior (instead of yet another generic lawyer) is a necessary contemporary response to the increasing needs of the tribal sovereigns

Shrinking Indian Country: A State Offensive to Divest Tribal Sovereignty

In Sac and Fox, the Oklahoma Tax Commission (OTC) argued that the Sac and Fox reservation was disestablished in the 1891 Allotment Agreement, and therefore the tribe was deprived of a cognizable land base on which it could exercise governmental power immune from the reach of the state. Based on this characterization of the land base, the OTC then argued that it could reach into Sac and Fox land and impose income and vehicle taxes. The tribe, of course, rejected any such characterization of its land base and resisted any attempt by the state to interfere with its sovereign control over that land base. To illustrate the states\u27 offensive, this paper analyzes the legal dialogue involved in Oklahoma\u27s suit to shrink the Indian country. The article will summarize first the background and procedural history of the challenge to the Sac and Fox. Then, the article analyzes the three elements used to construct the OTC attack on tribal lands - land characteristics, governance and activities on the land, and the people who use the land. Other actors entered the case, namely other states, other tribes, and the federal government, and so their viewpoints will be related to the bright-line argument between Oklahoma and the Sac and Fox Tribe. Like a Greek chorus in the classical dramas, these other actors voice viewpoints that illuminate the contemporary picture of states\u27 campaigns to diminish tribal lands and sovereignty. Finally, this article discusses the significance of these land-based attacks on tribal sovereignty concluding that when the three federal branches refuse to define, maintain, and implement the federal roles to protect the interests of contemporary tribes, the federal government, in effect, invites states to invade tribal lands and displace tribal governments. In fact, the legal discourse in Sac and Fox arose from more than the particular facts of the case. Rather, the case shows that similar actions by other states and the federal branches will promote the recurring state challenges to tribal sovereignty that require a vigilant response from tribal nations

American Indian Law and History: Instructional Mirrors

This article is an expanison of a presentation delivered on January 8, 1993 at the Association of American Law Schools annual meeting. The author presents her interdisciplinary approach to teaching a course on Native American Rights

Law School Training of American Indians as Legal-Warriors

This article explores four areas involved in training lawyers appropriate to the needs of tribal nations. First, the American Indian tribes, as the indigenous sovereigns, present legal needs and opportunities unique from other minority groups. Development of Indian law depends on the exercise of sovereign power by the Indian nations, not constitutional equal protection of an ethnic minority. The architectural work of developing the governments, i.e., creating tribal law and operating tribal courts, calls for the legal-warrior's critical ability to meld customary perspectives with knowledge and skills acquired in legal professional training. Second, the specialty of American Indian law as jurisprudence is affected by the training opportunities for American Indians in law schools. Specialists in American Indian law are important, regardless of their ethnic identity. Only American Indian individuals, however, can have the dual identity of indigenous community members and of practicing attorneys. Legal-warriors are cultural as well as legal advocates. Legal-warriors are necessary if Indian law, especially the federal law, is to be "decolonized." Decolonization requires the challenging of doctrines with disabling effects upon native peoples, such as the plenary power doctrine. Decolonization also requires that American Indians speak for themselves, reversing the history of outside advocates speaking for Indians instead of acting as collaborators with American Indian attorneys. The third area explored in this article is the limited pool of potential legal-warriors. The population of American Indian students who enter and complete undergraduate education is small. The negative impact on the admission to law schools, other professions, and graduate studies handicaps the tribal nations. Fourth, the small body of American Indians who enter and complete law school reveal the emerging pool of legal-warriors. One cannot assume or prescribe that all or most American Indian attorneys will specialize in Indian law; specialization is an individual's career choice. However, the law school experience, the financial and curricular resources devoted to American Indian needs, and the outcomes for American Indians who graduate from law school greatly determine whether an American Indian can become a legal-warrior. If law schools are to produce legal-warriors, then the institutions must affirmatively embrace major changes in their curriculum and environment for legal training. This legal-warrior (instead of yet another generic lawyer) is a necessary contemporary response to the increasing needs of the tribal sovereigns

El Salvador: Methods Use to Document Human Rights Violations

This study describes and analyzes the methods used to document human rights abuses in El Salvador, focusing on the methods used by the United States Government through its Embassy in San Salvador, and by Tutela Legal, a nongovernmental monitoring agency in San Salvador. The authors examined Tutela and U.S. records which were relevant and available for 1980 through 1984 and used post-1984 official statements which relate to methods. The focus is on the method used for the documentation of the murder or disappearance of civilians. This paper begins with an examination of the current international human rights standards as they relate to documentation in EI Salvador and the U.S. perspective on the issues. Then the history and methods of data collection on human rights violations, as practiced by Tutela and the U.S. State Department, are discussed. A section follows on factors of reliability and accuracy for data on violations of human rights, data that are often collected under conditions of great hardship and risk. Next, a general picture is drawn of how well the Tutela and U.S. methods take into account reliability and accuracy criteria. Finally, in an Appendix, several possible quantitative indices of human rights violations are discussed

Three Stories in One: The Story of Santa Clara Pueblo v. Martinez

Santa Clara Pueblo v. Martinez\u27 is an especially rich case that intermingles three stories: one is about Julia Martinez and her family; a second features Santa Clara Pueblo itself; and a third highlights dynamics within the United States Supreme Court. Decided in 1978, the Martinez case denied Julia Martinez access to federal court to challenge a Pueblo membership ordinance treating female members who marry outside the Pueblo differently from male members who marry outside. The case has long attracted attention from feminists and human rights advocates, because they see a woman\u27s claim of gender discrimination pitted against a Pueblo\u27s claim of tribal sovereignty. What has been missing in all of this commentary, however, is an internal Santa Clara Pueblo viewpoint on the case. What follows is an account of these three stories in their cultural context.https://digitalrepository.unm.edu/law_facbookdisplay/1028/thumbnail.jp

Santa Clara Pueblo V. Martinez: Twenty-Five Years of Disparate Cultural Visions an Essay Introducing the Case for Re-Argument Before the American Indian Nations Supreme Court

Santa Clara Pueblo v. Martinez nakedly presents a conflict between the individual rights norm of equality and the communal or collective political right of the first sovereigns within U.S. borders. The conflict underlies the discourse in law scholarship and reflects disparate cultural visions between mainstream society and American Indians. In Indian law the decision has saliency with positive and negative force injected into different arenas besides equal protection, gender, and membership qualifications. It is a major fortification for the federally recognized tribal sovereigns to exclude external law and forums, the federal law and courts, in how tribes exercise self-government. The case continues to provoke criticism for the Santa Clara Pueblo people who have not changed the ordinance that discriminates against female members who outmarry. Numerous people want a world of law with constitutional equality as the norm. Yet some of these people are also sympathetic to the need to correct the unfair historical treatment suffered by tribes and support efforts to protect the indigenous culturally and politically distinct way of life. The desire to reconcile the two perspectives is frustrated by reality, what Justice John Marshall called the actual state of things. Understanding Pueblo life then, when Martinez was decided, and now does not make the dissonance disappear, but it can inform a wider perception of the issues at stake

Racial Equality: Old and New Strains and American Indians

First, I will set the colonial context for equality that was anchored in a narrow white male model as the principal civic actor. Second, the discussion proceeds to the political status of American Indians, the basis for the nation-to-nation relations that secured in treaties the lands and resources that benefited non-Indians. Third, this Article explores the cultural difference between indigenous and constitutional visions of individual rights and community. Fourth, is a description of the efforts to remake Indians into a race and assimilate their governments into federalism. Fifth, this Article discusses the Santa Clara Pueblo v. Martinez case, which demonstrates the cultural disparity between the individual rights model of the ICRA and the political right of the tribe to self-determination. The conclusion affirms that the retained power of tribal sovereigns for self-governance and self-determination is the most important right for American Indians. Though American Indians are now citizens entitled to equal protection and due process, this individualistic theory is limited in force to protect culturally distinct governments built on values of consensual relations