The world of Indian law and justice may not be perfect, but Native values remain largely intact and in fact may lead the way into the future, prominent attorneys indicated April 27 as they paid tribute to a late mentor, teacher and friend.
They spoke at a two-day symposium at the University of Colorado-Boulder (CU) Law School, held in honor of the late David H. Getches, a noted tribal litigator, founding director of the Native American Rights Fund, and former dean of the CU Law School.
Prof. Matthew L.M. Fletcher, Grand Traverse Band of Ottawa and Chippewa Indians, Michigan State University College of Law; Prof. Carole E. Goldberg, UCLA Law School, and Prof. Rebecca Tsosie, of Yaqui descent, Arizona State University College of Law, were on a panel on American Indians, one of Getches’ primary areas of interest. Other sessions targeted water and land issues.
“How easy it is for my generation to whine about how bad things have gotten,” Fletcher said, but he added that for 175 years federal Indian policy had centered on termination.
Today, tribes are cutting-edge in determining what happens to humans as a species, he said, noting that Indian attorneys are already working to preserve tribal rights in such areas as air and water quality.
There is an increasing trend toward sustainability and a sense of responsibility to the land, which represents “a spiritual value—we all share it as human beings,” Tsosie said.
The sacred landscape “endures generation after generation” and we will never fully understand it and its complexity, even though knowledge is embedded in places, she said.
Goldberg traced the positive aspects of Indian water law as she pointed out that “tribes were afforded valuable rights disadvantaging more powerful interests in the West.”
Under the theory of “interest convergence,” it was asserted that Indian water law was enacted because non-Indian interests would benefit, but Getches said the water decisions relied on rights derived from Indian treaties and agreements, she said.
Fletcher observed that several issues remain in Indian country, including only a small reduction—from 80 percent down to 75 percent—in recent years in the rate at which U.S. attorneys decline to prosecute major crimes committed on-reservation.
The Indian Civil Rights Act is “heading toward oblivion” and, among other problems in the Indian justice system in small communities, the tribal court judge and the defendant may know each other.