An Introduction to Indian law

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I grew up in La Crosse in the 1970s, a pretty homogenous place at the time, and as a Caucasian, I was part of that homogeneity. I grew up knowing nothing about Native American culture.

Today, despite earning a law degree, I still know very little about Indian culture, and especially about Indian law. This article is an attempt to remedy that. I expect that I am not the only one who can benefit from an introduction to Indian law.

• For starters, “Indian law” is an acceptable label (for now).

  When Kris M. Goodwill, a member of the Menominee tribe and one of six in-house counsel for the Ho-Chunk Nation in Black River Falls, attended law school at the University of Wisconsin, she was a member of the Indian Law Students Association. It has since been renamed the Indigenous Law Students Association.

  John S. Swimmer, an attorney with Godfrey & Kahn S.C. in Milwaukee, explains that there is some debate within the Native American community as to the propriety of the term “Indian,” with only about 10 percent rejecting it. He is not among their number.

• Opportunities abound in Indian law these days.Washington D.C. is an especially busy area for those who concentrate in Indian law, either with federal agencies, non-profits or in one of the many law firms that have recently added Indian law departments to their complement of legal services, says Goodwill. In addition, tribes are increasingly creating or expanding their in-house legal counsel offices.

  Large law firms outside of D.C. are also moving into Indian law. Swimmer says, “It’s really a growing trend — a lot of law firms are starting to add Indian law practice groups, or are hiring someone with expertise in the area, because some tribes have been incredibly economically successful lately. Although that’s slowing down a bit, like everything else.”

• There’s huge variation among tribes.Swimmer explains, “The general public, and even Congress, tends to suffer from this. They don’t understand that Indian tribes tend to fall in a continuum; some have more written codes, policies and procedures, while some have far fewer. Ho-Chunk, for example, has been through at least two big constitutional revisions,” says Swimmer, who used to work in-house for that tribe.

  Many tribes do not have written languages and rely heavily on oral history, even within their justice systems, while some at the other end of the spectrum have numerous written laws, typically referred to as “ordinances,” and case law, he adds. Again, the Ho-Chunk tribe is an example of the latter; see its Web site for the tribe’s extensive jurisprudence.

  And, there’s huge variation among tribes when it comes to their size, according to Swimmer. The Navajo Nation is the largest American tribe, with land in three states covering some 27,000 square miles, and a population of over 250,000 members. The second largest is the Cherokee, of which Swimmer is a member. That’s in a stark contrast to a tribe that Swimmer represents, the Bridgeport Indian Colony, which has about 100 members.

• There’s no “typical” Indian law practice.Some tribes have legal departments, such as the Ho-Chunk, and therefore Goodwill is able to concentrate her practice somewhat.

  For other tribes, one or possibly two lawyers might be on staff, and in that case, she explains that the tribal attorney is somewhat like a general practitioner, serving as a litigator in tribal court as well as state and federal court, and a transactional attorney, in addition to myriad research and possibly drafting laws for the tribe.

  In law school, taking the course on federal Indian law is a must. Unfortunately, not all law schools offer such courses, but both the University of Wisconsin and Marquette Law Schools do.

  As for overlap with other practice areas, Indian lawyers usually must be familiar with administrative, tax, property, business, health, family and children’s law, to name a few.

  That’s in addition to the tribe’s own body of laws and customs. On that note, Swimmer says that many tribes take a much different view of the employment-at-will doctrine, and are generally more employee-friendly than most U.S. state and federal courts, while Goodwill says that child placement preferences within tribes might be different than in most state courts.

  Goodwill adds that jurisdiction is frequently an issue — who has the power to do what, involving whom, and where?

  As an in-house tribal attorney, the client might be a governing board. Or, at the Ho-Chunk tribe, its attorney general meets with the tribal legislature regularly. The Ho-Chuck has a strong separation of powers; some tribes do not.

• Attorneys appearing before tribal courts need to do their homework.You’ll likely need to be admitted to practice before the court, says Goodwill, and you should be mindful of the ethics code governing tribal practitioners.

  In addition, it’s always a good idea to know your judge, whatever the forum may be.

  While there might be several tribal court judges who do not hold J.D.s, some do, as do both of the Ho-Chunk’s trial judges. Meanwhile, the Lac Courte Oreilles tribe uses a retired circuit court judge who is not Native American.

  As for the very basics, jury trials are available for most matters in most tribes. The courts will likely follow rules of civil and appellate procedure, as well as evidence rules.

Just the Beginning

Obviously, this article just scratched the surface. To learn more about Indian Law, Goodwill and Swimmer strongly recommend joining the State Bar’s Indian Law Section. The section puts on CLEs at the State Bar’s convention. In addition, Swimmer says there are a number of firms, his included, that publish Indian law updates on the Web.