Legal systems are never easy to navigate, as the U.S. vertical hierarchy of courts, jury options and appeals processes attest. In dealing with Indians and the United States' judicial system, with its purported goal of integrating the principles of 567 nations (counting the U.S.), tribal law, state law, federal law, the inherent and reserved rights of Indigenous Peoples and treaty obligations, establishing and defending the rights of Natives is a job that requires the best minds of the times. The field requires the ability to understand complex relations and theory, the strength to stand by their principles and the maturity to respect other people’s points of view. The nine women profiled here have taken up the task.
Angelique Townsend EagleWoman
EagleWoman, Sisseton-Wahpeton Oyate of the Lake Traverse Reservation, is associate professor of law and James E. Rogers Fellow in American Indian Law at the University of Idaho College of Law. She says she hopes her just-released book, Mastering American Indian Law, (with co-author Stacy Leeds) will bring American Indian law to a wider audience, a goal in keeping with her mission to “educate future lawyers on the relationship between tribal entities and the U.S., which is not taught correctly.”
One highlight of her career, she explains, was going to D.C. with her tribe to see the background documents in DeCoteau v. District Court, argued before the Supreme Court in 1975. The tribe lost the pre-ICWA case when the Supreme Court ruled that the tribe’s reservation had been disestablished by allotment and the county could therefore take children from a mother who had left them with a relative on the grounds of abandonment.
EagleWoman says diversity has been decreasing in law schools, making this the perfect time for American Indians to apply. “Native law professors across the country are ready to teach and mentor. They are waiting for you to reach out to us.”
Carole E. Goldberg
Goldberg says one of her most important contributions to American Indian law is her work on Felix S. Cohen’s Handbook of Federal Indian Law. She is the only person to have served on the board for the 1982, 2005 and 2012 editions of that treatise. “The handbook has been the most widely used reference source for judges, for practitioners and for scholars looking to understand federal Indian law. It is known since its first edition in the 1940s for offering an interpretation of federal Indian law that places inherent tribal powers at the center of understanding the field.”
Goldberg is Jonathan D. Varat Distinguished Professor of Law at the UCLA School of Law. In 2007, she was appointed to serve as a Justice of the Hualapai Court of Appeals and in 2010 President Obama appointed her to the Indian Law and Order Commission. She co-authored Defying the Odds: The Tule River Tribe’s Struggle for Sovereignty in Three Centuries and co-edited with Kevin Washburn and Philip Frickey Indian Law Stories. She is working on a book that will showcase the results of her research on the administration of criminal justice in Indian country.
Gomez, Tule River, has served as chief justice for the Shingle Springs Band of Miwok Indians Tribal Court and assistant secretary of environmental justice and tribal governmental policy for the California EPA. She is now tribal advisor to California Gov. Edmund G. Brown and executive secretary of the state’s Native American Heritage Commission. She says that as the governor’s advisor, she is able to support “recognition of our tribes as unique sovereign nations and their ability to govern and enforce their tribal laws.” Her most important contributions have been “helping the tribes I worked with move toward enforcement of tribal policies.”
Gomez says of current legal challenges, “Tribes are and have always been fighting for tribal sovereignty and tribal jurisdiction. In California, we’re dealing with the implications of Public Law-280, which has created some difficult challenges for us, including lack of funding for tribal courts. PL-280 was devastating, to California at least. But what will be important in the future is water rights, balancing state needs and the reserved water rights of some tribes. That is very complex.”
Kendall-Miller, Denaina Athabaskan and a tribal member of the Native Village of Curyung, is a staff attorney for the Native American Rights Fund specializing in tribal rights and subsistence. She serves on the boards for Harvard University’s Honoring Nations Program and The Wilderness Society. Kendall-Miller was lead counsel for both appeals (to the U.S. Circuit Court and to the U.S. Supreme Court) of the landmark cases State of Alaska v. Native Village of Venetie and Katie John v. Norton.
Asked what the most important current challenges and issues faced by Native lawyers, she said, “Climate change presents a daunting challenge to Native Americans whose customary and traditional way of life is intimately connected to the land. We also face challenges preserving our rights in the courts in part because the current Supreme Court has little regard for tribal sovereignty, Indian canons of construction, or treaty rights.
“The Supreme Court’s recent cases like Baby Veronica and the Voting Rights Act case show little understanding of Indian issues and caution against having cases litigated there if at all possible.”
Leeds, Cherokee, is the first American Indian woman to serve as dean of a law school (University of Arkansas). She has served on seven tribal courts, including as chief justice on the Cherokee Nation Supreme Court, as a director of the Tribal Law and Government Center at Kansas Law School, a director of the Northern Plains Indian Law Center at the University of North Dakota School of Law and a commissioner of the Secretarial Commission on Indian Trust Administration and Reform. Leeds co-authored Mastering American Indian Law, published at the end of August.
One major legal issue facing Indian Country, Leeds says, “that we’re fighting the battle of external legitimacy when it comes to both the federal government, the state and international forums recognizing the powers of our governments.” She views her work on the trust reform commission as having “the potential to be the most impactful [she has done] because of the recommendations we [will] set forward to overhaul and reform the way our property system and the trust responsibility of the federal government play out.”
Locklear, Lumbee, was the first Native American woman to argue before the U.S. Supreme Court. In Solem v. Bartlett, 1984, “the court clarified the law with regard to the standard for disestablishment of Indian reservations in such a way that hopefully will be protective for reservations.” Oneida Indian Nation v. County of Oneida, the second Supreme Court case she argued, was also important. “The frustration of that was it didn’t result in an actual benefit to the Oneidas at all, [although] it was a legal principle victory.”
An expert in the area of federal recognition, Locklear says the Supreme Court’s Carcieri ruling “has delayed by years any ability of the Interior Department to actually place land into trust. Tribes must demonstrate the department has authority to place land into trust for them,” essentially requiring them to repeat the arguments they made to get federal recognition. “That’s been one of the worst things that happened in a long time.” She is hopeful that the BIA’s proposed new rules for recognition will lead to meaningful reform. “The process that we’ve been using since 1978 is an abomination, insulting to tribes and causing the government not to recognize legitimate Indian tribes,” she says.
Riley, Citizen Potawatomi Nation of Oklahoma, is director of the UCLA American Indian Studies Center and co-director of the Native Nations Law and Policy Center. Riley says of her work, “Being on my tribe’s Supreme Court, working as an evidentiary hearing officer for Morongo, and serving as a member of the United Nations Indigenous Peoples’ Policy Board have been incredibly rewarding and deeply valuable experiences. They provide an opportunity to put my education and training to use to advance Native governance and facilitate Indigenous Peoples’ rights around the globe.”
Riley wishes she could be more optimistic about Indian rights in the U.S. “America is struggling… with how to reconcile the role of Indian nations within a liberal democracy. Indian nations’ status within the United States is a political one. Tribes’ sovereignty predates the formation of the U.S. Constitution. I have found that many people don’t understand the historical or legal complexities of the field. Without that understanding, there is a tendency to diminish Indian sovereignty.”
Sharp is Quinault Nation president; “The warrior lawyers of our generation are working to reverse the 400-year trend of steady encroachment and diminishment of our powers and authority,” she says.
Among today’s most important challenges, she says, are employment issues. And, “domestically on the tribal front we see many of our tribes looking at amending their constitutions to include civil and human rights. I think that’s critically important. I also see international laws, the publication of the UN Declaration on the Rights of Indigenous Peoples, as important…. We’re witnessing a new era where we’re starting to have direct relationships with our tribal nations and other nations as we figure out how we can advance what we know culturally, morally, politically to that universal stage where it’s accepted as a universal principle that transcends national borders.”
Sharp was formerly managing attorney and lead counsel and staff attorney for the Quinault Indian Nation, an administrative law judge for the Washington state Department of Revenue, a Quinault Tribal Court Associate Judge and counsel for Phillips, Krause & Brown.
Williams, Yurok, is chief judge of the Northern California Intertribal Court System and of the Shingle Springs Band of Miwok Indians as well as vice president of the California Indian Law Association. The Intertribal Court was founded by four tribes to “try to leverage each tribes resources… for the benefit of all four tribes while maintaining each tribe’s sovereignty and their sovereign right to develop their own justice system,” she says.
Williams identifies jurisdiction as a major concern in the field. “Jurisdiction is a huge issue that we face every day, especially being in a PL-280 state. We share a lot of jurisdiction with our county partners and that takes a lot of relationship building.
“There was a time … that I wanted to retrocede. [But] that is much murkier for me now.” After working successfully with the California state legal system and seeing the report on domestic violence in Indian Country, she says, “Those tribes in non-PL-280 states weren’t really in a position to better address that than we were in PL-280 states …. I’m not sure that tribes in non-PL-280 states are any better off.”