Here is “Teaching Indian Law in the 21st Century,” (hopefully) forthcoming in an edited collection of papers on teaching law in the 21st century.
Since the first Indian law classes were offered in the late 1960s and early 1970s, law teachers mostly have considered the field a niche specialty, even a backwater, unnecessary to anyone not likely to go into law practice in Indian country. In those days, law teachers focused on treaty rights fights. Treaty rights are a critical but small part of Indian country practice. Lawyers in modern day Indian country handle virtually every kind of matter taught in law schools in addition to the Indian law-specific subject matters. Beginning in the 1990s, American Indian tribal nations started to become critical factors in governmental and economic activity throughout much of the United States.
In the 21st century, many law schools offer Indian law — and occasionally offer additional, specialized courses — but generally are still far behind the curve. Worse, when it is offered, the Indian law canon tends to be taught in ways that ignore contemporary tribal agency by emphasizing historical events over modern issues. Modern tribal nations make their own laws. Here I give examples of tribal court cases and tribal statutes law teachers can use to incorporate Indian law into virtually any common law course.
There has been a small spate of Uniform Child Custody Jurisdiction Enforcement Act cases this year involving family law cases and tribal courts. In most states, tribes are considered “states” for the purposes of determining a child’s “home state” jurisdiction. These are generally (but not always) non-ICWA cases like parental custody and child support. These kind of cases seem rare to practitioners, but nationally there’s a fair number of them (and will continue to be the kind of reasoning tribal and state judges will need to engage in to as more and more cases arise in this subject area).
McGrathBressette (Michigan, child custody v. child protection)
MontanaLDC (Montana, child custody)
NevadaBlount (Nevada, third party custody)
(And yes, I have a pile of ICWA cases to share with you that have built up in the last month or so.)
Judith M. Stinson, Tara Mospan, and Marnie Hodahkwen have posted “Trusting Tribal Courts: More Lawyers is Not Always the Answer” on SSRN. The paper is forthcoming in the Law Journal for Social Justice at ASU.
Many outsiders distrust tribal courts because they assume they will be treated unfairly. This distrust creates a number of problems, including decreasing the effectiveness of tribal judicial systems, inhibiting tribal economic development, and ultimately undermining tribal sovereignty. Critics of tribal courts assert three main justifications for their structural skepticism: first, that tribal courts are “different” from other court systems in the United States; second, that tribal laws and traditions seem foreign and may be difficult to access; and third, that because the qualifications for judges and practitioners in tribal courts sometimes differ from those in other courts, tribal judges and advocates are inferior. Drawing on other scholarship, this article briefly responds to the first two criticisms. This paper then argues that non-lawyer judges and lay advocates can be as effective as law-trained judges and advocates in other court systems. Although it is impossible to eliminate all outsider bias, refuting the claimed justifications should demonstrate that tribal courts are as fair and as competent as non-tribal courts. Therefore, greater confidence in tribal courts is warranted.
Judge Bradley Letts has published “The Cherokee Tribal Court: Its Origins and Its Place in the
American Judicial System” in the Campbell Law Review.
From the inimitable Judge Voluck:
The recent St. Paul Island project – Tanaam Awaa: ‘Our Community’s Work’ Trauma-Informed Benchbook for Tribal Justice Systems is better in hand … with that said the Tribe has produced a digital version for free download on their Aleut Community of St. Paul Island Tribal Government website.
Now he says “Free” but go ahead and donate some dollars if you can to keep up this good work.