Carpenter, Kristen A.

Fletcher, Matthew L.M.

English

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Michigan State University College of Law
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4-1-2012
David Getches: A Tribute to a Leader and a Scholar
Matthew L.M. Fletcher
Michigan State University College of Law, matthew.fletcher@law.msu.edu
Kristen A. Carpenter
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Recommended Citation
Matthew L.M. Fletcher & Kristen A. Carpenter, David Getches: A Tribute to a Leader and a Scholar, Fed. Law., Apr., 2012, at 42.
In Memoriam
MATTHEW L.M. FLETCHER AND KRISTEN A. CARPENTER
David Getches: A Tribute to a Leader and a Scholar
INDIAN COUNTRY LOST a great champion when David
H. Getches walked on to the next world on July
5, 2011. David had been the dean of the Univer-
sity of Colorado Law School for eight years before
stepping down on July 1. He had been looking
forward to researching and writing scholarship
after years of leading the law school.
David's unparalleled
legacy cannot be re-
duced to words, but we
will try. He was a gradu-
ate of the University
of Southern California
School of Law and be-
came the founding ex-
ecutive director of the
Native American Rights
Fund in 1970. In 1979,
he joined the faculty of
the University of Colora-
do Law School and co-
authored the first edition
of Cases and Materials
on Federal Indian Law
with Daniel M. Rosenfelt
and Charles F. Wilkin-
son. David's work in In-
dian law was the tip of
the iceberg in his schol-
ar's and practitioner's curriculum vitae. He served as
the executive director of the Colorado Department of
Natural Resources. In 2003, he began serving as dean
of the Colorado Law School, where he oversaw all the
aspects of the development and construction of the
$46-million Wolf Law Building.
David's legacy is enormous. Charles Wilkinson, Da-
vid's longtime colleague and friend, made the follow-
ing comments upon David's passage: "David Getches
came along at exactly the right time for the American
West, which has undergone such sweeping changes
over the past half century. As a wise advocate and
leading public intellectual, David brought vision, com-
mon sense and passion to pressing issues of water,
land and Indian rights. Now Indian tribes, universi-
ties, government offices, conservationists and the riv-
ers themselves will grieve aloud. We will not see his
kind again."'
Shortly after David passed away, the National Con-
gress of American Indians awarded him the organi-
zation's Lifetime Achievement Award. Jefferson Keel,
president of the organization, took the opportunity to
note the following: "David Getches forged a revolu-
tion in federal Indian law that led to a new respect for
the rights of Indian tribes in courthouses throughout
the nation. He was an exceptional man. Across Indian
Country, Mr. Getches will be remembered as a great
friend and brother to Native people. NCAI extends
our condolences to his family, friends, and colleagues
for this profound loss."2
Senator Mark Udall spoke on the floor of the U.S.
Senate floor about David's legacy as a legal educator:
Getches also built a legacy of equal access to
legal education for all. He worked to expand
scholarships and financial aid awarded by the
law school to worthy students regardless of their
financial background, increasing scholarship
awards from $600,000 in 2004 to $2.1 million in
2007. In 2008 he worked with the Colorado state
legislature to pass a law allowing public univer-
sities to offer Loan Repayment Assistance Grants
to graduates practicing public interest law, and
more recently founded an endowment to award
grants to CU law school graduates in the pub-
lic sector. By reducing the cost of law school,
Getches made public service a viable alternative
to private practice for bright graduates. Those
students, CU Law School, and the state of Colo-
rado will reap the benefits in the future from
Getches' foresight and thoughtful investments.'
Getches as Legal Practitioner and Dean
Contributed by Kristen A. Carpenter
For 32 years, David was a faculty member at the
University of Colorado Law School, where he served
as dean from 2003 to 2011. To say his presence is
deeply missed at the law school would be an under-
statement. David's name comes up every day during
faculty meetings and conversations with students, and
we are sometimes still surprised to realize he is ab-
sent from our midst. My own experiences with Da-
vid as dean stretch back only two years-when I was
a professor and associate dean at the Colorado Law
School-but, even during that short time, I learned
from him inspiring lessons about legal education, ad-
vocacy, and leadership.
42 | The Federal Lawyer I April 2012
HeinOnline  -- 59 Fed. Law. 42 2012
Because of David's position, I learned that it is
transformative to teach at a school where one of the
nation's leading Indian law scholars is the dean. With
his colleagues-Charles Wilkinson, Rick Collins, Sarah
Krakoff, and Jill Tompkins-David created a culture
of education in which knowledge of Indian law is
a baseline for the study of the U.S. legal system. At
Colorado Law School, the students expect to learn
how Indian nations figure into their study of property,
civil procedure, natural resources, constitutional law,
and other subjects. And while the faculty considers
Indian law to be an aspect of legal education with
which all students should be familiar, Colorado Law
School also offers special opportunities for those who
intend to specialize in the field, including our Ameri-
can Indian Law Certificate Program and the American
Indian Law Clinic. David's own research and teaching
are, of course, the models for these endeavors and,
more generally, for intellectual inquiry and effective
pedagogies in Indian law. He wrote the book, quite
literally, and we are all still reading it.
Thanks to David, I also learned that foundational
principles go hand in hand with community and rela-
tionships. David is famous for insisting on the vitality
of the 19th-century founding principles of Indian law:
the federal trust responsibility, reserved tribal rights,
and the exclusivity of federal power in Indian affairs.
David did not honor these principles merely in the
abstract; rather, he experienced them firsthand as a
lawyer for tribal people. Going all the way back to the
1970s, tribal leaders entrusted David with their most
valuable resources-treaty rights, subsistence fish-
ing, and water rights-and he used the rule of law to
safeguard them for the tribes. David was supportive
of innovative practice and contemporary adaptation
grounded in the bedrock principles that protected the
tribal people and communities he knew.
Finally, David showed me that the most effective
leadership is humble and inclusive. David's profes-
sional collaborations with Charles Wilkinson were
legendary and inspiring, as were the jokes they told
at each other's expense, reminding us that they didn't
take themselves too seriously. Over the years, David
was behind the scenes mentoring many of the indi-
viduals who are now national leaders, scholars, and
lawyers specializing in Indian law, and he always let
them bask in the glory of their own achievements. In-
deed, David was famous for acknowledging the mile-
stones and contributions of colleagues, students, law
school staff, graduates, and, most of all, his beloved
family. In these ways, David's incredible abilities were
shared, accessible, and motivating, and he left a shin-
ing legacy for all of us.
Getches as Scholar
Contributed by Matthew L.M. Fletcher
David Getches as a scholar was one of the leading
lights in the development and modernization of Amer-
ican Indian law as well as the law related to water and
natural resources. Along with Charles Wilkinson, Da-
vid forged what would become the leading casebook
in the field, Cases and Materials on Federal Indian
Law. Now in its sixth edition, Federal Indian Law has
been cited in more than 700 law review articles, cas-
es, and briefs-more than twice as many as any other
Indian law casebook. David's law review articles-
more than two dozen-have been cited more than
500 times. David's Water Law in a Nutshell has been
cited more than 150 times, including references in all
of the major briefs and in the majority opinion in the
U.S. Supreme Court's water law decision in Montana
v. Wyoming, 131 S. Ct. 1765 (2011), handed down last
term.
David's commitment to scholarship comes from
the unique perspective of being a key player in the
major events that shaped the doctrines about which
he wrote. David served as the lead trial attorney in
United States v. Washington, 384 F. Supp. 312 (W.D.
Wash. 1974), the famed Boldt decision of 1974 that
sparked the massive resurgence of successful tribal
treaty rights claims. His work in founding the Na-
tive American Rights Fund placed him in the position
of working on important cases such as Joint Tribal
Council of Passamaquoddy Tibe v. Morton, 528 F.2d
370 (1st Cir. 1975), and others.
David's scholarship is best known for his commit-
ment to the foundational principles of federal Indian
law, as espoused in his articles: Conquering the Cul-
tural Frontier: The New Subjectivism of the Supreme
Court in Indian Law, 84 CAL. L. REV. 1573 (1996), and
Beyond Indian Law: The Rehnquist Court's Pursuit of
States' Rights, Color-Blind Justice and Mainstream Val-
ues, 86 MINN. L. REV. 267 (2001)-two of the most fre-
quently cited Indian law articles of all time. His great-
est contribution to Indian law, water law, and natural
resources law may be his articulation of a "philosophy
of permanence," which he defined as a "philosophy
that commits [Indian] people to a permanent existence
in harmony with everything around them. ... " David
wrote these words more than 20 years ago, and they
have informed generations of lawyers, scholars, and
policy-makers about the timelessness of American In-
dian people and Indian tribes.
I can say that David's work on the most recent
edition of Cases and Materials on Federal Indian Law
was overwhelming. The casebook, like federal Indian
law, looks a great deal different than it did when the
first edition was published back in 1979, but David's
dedication to the foundational principles of federal In-
dian law never wavered. That first casebook (which is
not the first Indian law casebook) laid the foundation
of how federal Indian law is now analyzed by ground-
ing Indian law and policy in American history. For the
first time, the Federal Indian Law casebook identi-
fied the eras of American Indian law and policy-
pre-Revolutionary precedents, the formative years,
GETCHES continued on page 49
April 2012 1 The Federal Lawyer | 43
HeinOnline  -- 59 Fed. Law. 43 2012
MOBILE continued from page 41
Endnotes
'For purposes of this article, "tribal identity" refers to the
identity of tribes that are organized with a governing structure
and recognized by the federal government or by a state.
'Venus Sharee McGhee, "The Construction and Evolu-
tion of Identity Among the Poarch Band of Creek Indians"
(March 24, 1995) (unpublished B.A. thesis, Harvard Univer-
sity, Department of Sociology) (on file with author).
"BBC Measuring the Information Society 2010,"
BBC News Quly 9, 2010), available at www.bbc.co.uk/
news/10569081 (accessed Dec. 28, 2011).
4www.ctia.org/advocacy/research/index.cfm/aid/10323
(accessed Dec. 28, 2011).
5Lisa Bernard-Kuhn, Rising Cost of Relocation Hampers
job Market, USA TODAY (July 30, 2011).
6National Urban Indian Family Coalition, Report to the
Annie E. Casey Foundation, Urban Indian America: The
Status ofAmerican Indian and Alaska Native Children and
Families Today, 6-7 (2008).
'The U.S. Census actually used the term "American In-
dian Areas," which included federal American Indian res-
ervations and/or off-reservation trust lands, Oklahoma trib-
al statistical areas, tribal designated statistical areas, state
American Indian reservations, and state-designated tribal
statistical areas. Although there are legal distinctions be-
tween these areas, I use the term "reservation" to refer
broadly to all these areas for purposes of this discussion.
'Padraic I. McCoy, The Land Must Hold the People: Na-
tive Modes of Territoriality and Contemporary Tribaljustifi-
cations for Placing Land Into Trust Through 25 C.F.R. Part
151, 27, AsM. INDIAN L. REV. 421, 422 (2002/2003).
1825 U.S.C. 5 479.
10925 U.S.C. § 2703(4), 2710.
"1025 U.S.C. § 1902, § 1911.
121125 U.S.C. 5 1602, amended by H.R. 536 (2011-12).
'
3Erin J. Klahn, "Debating Identity: Urban Indians in the
Healthcare System" (Spring 2008) (unpublished M.A. the-
sis) (on file with the Anthropology Department, University
of Montana).
14McCoy, supra note 8, at 444-45.
15National Urban Indian Family Coalition, supra note 6,
at 7 n.12.
'"Robert Clinton, Carole Goldberg, and Rebecca Tsosie,
AMERICAN INDIAN LAW: NATIVE NATIONS AND THE FEDERAL SYSTEM
171-182 (2005).
7Kristy Gover, Genealogy as Continuity: Explaining the
Growing Tribal Preference for Descent Rules in Membership
Governance in the United States, 33 Am. INDIAN L. REV. 243,
251-52, 298-99 (2008/2009).
'
8Poarch Band of Creek Indians, Tribal Constitution, Ar-
ticle I, Sec. 1 (adopted June 1, 1985, amended June 5, 2010)
(emphasis added).
'
9David Treuer, How Do You Prove You're an Indian?
N.Y. TIMES (Dec. 20, 2011), available at www.nytimes.
com/2011/12/21/opinion/for-indian-tribes-bloocl-shouldnt-
be-everything.html.
2National Urban Indian Family Coalition, supra note 6, at 6.
GETCHES continued from page 43
the era of allotments and assimilation, the period of
Indian reorganization, the termination era, and the
era of self-determination6-that form the basis of liter-
ally all casebooks and treatises that followed.7 David's
work (along with that of Daniel Rosenfelt and Charles
Wilkinson) in organizing the historical eras of Indian
law and policy effectively framed how practitioners,
courts, and scholars now discuss federal Indian law.
TFL
Matthew L.M. Fletcher is a professor of law at Michigan
State University College of Law. Some of the material
in this paper appeared first in the Fall 2011 edition
of Federal Indian Law Newsletter published by the
Federal Bar Association's Indian Law Section. Kristen
A. Carpenter is the associate dean for faculty develop-
ment and an associate professor of law at the Univer-
sity of Colorado School ofLaw. Memorial contributions
may be sent to the David H. Getches Scholarship Fund.
Additional information is available at www.cufund.
org/GetchesScholarship. @ 2012 Matthew L.M. Fletcher
and Kristen A. Carpenter. All rights reserved.
Endnotes
'University of Colorado Law School, Press Release
(July 5, 2011).
2National Congress of American Indian, Press Re-
lease (July 7, 2011).
'Mark Udall, In Memory ofDavid Getches, 157 CONG.
REc. S4478 (July 11, 2011).
4David H. Getches, A Philosophy of Permanence:
The Indians' Legacy For the West, JOURNAL OF THE WEST
54 Quly 1990).
'See Monroe Price, LAW AND THE AMERICAN INDIAN:
READINGS NOTES AND CASES (1973); see also Monroe E.
Price, NATIVE AMERICAN LAW MANUAL (1970) (listing David
H. Getches as a contributor).
'See David H. Getches, Daniel M. Rosenfelt, and
Charles F. Wilkinson, FEDERAL INDIAN LAW CASES AND MA-
TERIALS 29-119 (1979).
'See Felix S. Cohen, COHEN'S HANDBOOK OF FEDERAL
INDIAN LAW 47-206 (1982 ed.); Monroe E. Price and
Robert N. Clinton, LAW AND AMERICAN INDIAN 68-92 (2d
ed., 1983); William C. Canby Jr., AMERICAN INDIAN LAW
IN A NUTSHELL 9-31 (1983); Conference of Western At-
torneys General, AMERICAN INDIAN LAw DESKBOOK 9-27
(1993); Felix S. Cohen, COHEN'S HANDBOOK OF FEDERAL
INDIAN LAW §5 1.02-1.07, at 10-113 (2005 ed.); Robert T.
Anderson, Bethany Berger, Philip P. Frickey, and Sar-
ah Krakoff, AMERICAN INDIAN LAW: CASES AND COMMENTARY
15-162 (2008). See also Stephen L. Pevar, THE RIGHTS OF
INDIANS AND TRIBES 1-15 (4th ed., 2012).
April 2012 | The Federal Laoer |49
HeinOnline  -- 59 Fed. Law. 44 2012


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