UM law asked me to write something for an internal newsletter, so I did. Hope you like it.
Indigenous Peoples’ Day, a holiday I celebrate instead of Columbus Day (both are federal holidays), offers an opportunity to reflect on legal education, professionalism, and the future of American Indian law.
I grew up in a mixed Anishinaabe family where Christopher Columbus was considered no hero. Learning about Columbus as the discoverer of America in Kentwood and Wayland public schools in southwest Michigan was confusing to me. Michigan was a long way from the Caribbean. I never understood how someone who never set foot in what is now the United States could be called its “discoverer.” My parents, Richard and June, taught me that Columbus was an incompetent adventurer who got lost on his way to India and that he died destitute and a failure.
As a U-M student in 1992, the 500th year anniversary of Columbus’ first voyage, I learned more about this man. Notably, I learned his name was not Columbus. He was known as Cristoforo Columbo when he lived in Italy and then Cristóbal Colón when he lived in Spain. Changing his name in the public arena to Columbus, a more English-sounding name, was apparently a prerequisite to building broad support for celebrations of American patriotism that culminated in the establishment of a national holiday in 1971. I also learned Columbus was a slaver and a murderer, which by that moment in my education was unsurprising to me. (U-M history professor Greg Dowd’s recent op-ed on this subject is required reading. It always surprised me that so many people I knew didn’t seem to care—or believe—Columbus was no hero.)
In law school, my introduction to American Indian law started with the Doctrine of Discovery. So instead of my being able to leave Columbus the discoverer behind, his nasty ghost crept into my property class. The discovery doctrine is a legal fiction presuming that Indigenous people did not possess full ownership of their lands at the time of contact with European nations because Indigenous people were subhuman. This doctrine made as much sense as claiming that Columbus discovered America. What’s worse (and makes even less sense) about the narrative of the discovery doctrine is that it forms the basis of all American property titles. So not true.
I wrote about my initial impressions of the discovery doctrine in my first law review article, “Listen.” Moreover, the discovery doctrine didn’t harmonize with what I would come to know about why Anishinaabe people lost their lands. My ancestors didn’t lose their land because of some far-off discoverer; they lost the land because of pure political and economic power. Law didn’t matter much at all. I wrote about this in a narrative law review article, “Stick Houses in Peshawbestown.”
I practiced law for nearly seven years before I became a law teacher, working in-house for tribal governments. I used to get teased as the “baby attorney” by the other lawyers. And sometimes I got teased for being the Native lawyer who never took a class in Indian law. I found out quickly that my training in general law courses like contracts, tax, secured transactions, and legal writing mattered more than my knowledge (or lack thereof) in Indian law. There was a part of me that wanted to be a sovereignty warrior who pounded on the tables in Congress and the Supreme Court, but what my clients needed more than that was practical advice on how to develop legal infrastructure and negotiate business deals.
What I was most surprised by as a practicing attorney were the fictions perpetuated by lawyers and judges. The courts often wrote about my clients (tribal governments) as if they were foreign, exotic, unknowable, and dangerous. Reading these opinions was surreal, given that they described a universe that didn’t exist in my experience. My friends on the other side of the negotiating table or the courtroom representing non-Indian business interests and individuals took the language of the courts and weaponized it against my client, often at the expense of their own clients’ interests. I recently wrote about these experiences in a paper that will be published in the Michigan Bar Journal this fall, “Reflections on Professionalism in Tribal Jurisdictions.”
When I started college in 1990, there were only seven federally recognized tribes in Michigan. Now there are 12.
In 1990, most Michigan tribes had nascent governments and tiny economies. Now, Michigan tribes are hugely influential in state and national government and tend to be their regions’ largest employers.
Also, over those years, fewer and fewer people ask me about Columbus. Despite the name being all over the place, Columbus the man is fading into history— justifiably so. Defenders of Columbus Day mostly focus on the day as a holiday celebrating Italian history and culture. President Biden’s 2021 parallel declarations announcing two federal holidays, Indigenous Peoples’ Day and Columbus Day, appear to be a reflection of the best of both things.
I have been a law teacher for 18 years now. I take my experiences learning about Columbus and managing his legacy into account in my teaching. I want law students to know that in my Indian law classes, they are going to learn a different history—one derived from the lived experiences of Indigenous peoples. Some of that history will conflict with what they have been taught.
But not all of it. History, like law, is a construct. Lawyers take the evidence and put together a persuasive narrative to effectuate their clients’ needs. So I also want the students to realize that good lawyers must be willing to acknowledge that the principles they take for granted can be disrupted. Indian law can be very, very disruptive—in both good and bad ways. I wrote about this, too. Our students are acquiring the training they need to assist their clients in navigating those disrupted waterways. Hopefully better than Columbus did.
Turtle Talk 