Daniel F. Cracchiolo Law Library Blog: Blog

Why should you take Federal Indian Law or Tribal Law?

November is Native American Heritage Month. While November is the official month that the Federal Government recognizes the contributions of Indigenous people in the United States, it is something that is and should be done everyday and always. 

The University of Arizona College of Law (Arizona Law) “explor[es] new paths for the sake of advancing legal education and the legal profession.” To begin to truly advance legal education and the legal profession, I believe it begins with educating legal professionals about the legal history and doctrines that concern Indigenous Peoples. With that being said, I encourage the College to seriously contemplate establishing Federal Indian Law and Tribal Courts and Tribal Law as required courses to graduate. The College has a great opportunity to elevate the quality of its legal education for its students, alumni, and the whole profession. 

Why? Many Arizona Law students stay and practice within Arizona.  With Arizona having 22 Native Nations within its boundaries as well as other states, it is imperative that as legal professionals, we learn more about the third sovereign in this country, Native Nations. In law school, a place to start is by taking Federal Indian Law. 

Here at Arizona Law, Federal Indian Law is taught by renowned scholars with extensive knowledge and experience within the field such as Rebecca Tsosie and Melissa Tatum. This Fall, Professor Tatum is teaching Federal Indian Law (LAW 631A) on Tuesdays and Thursdays in the afternoon. Federal Indian Law is usually taught every Fall.

What even is Federal Indian Law or Tribal Law?

Federal Indian Law is the area of law that covers the legal subjugation of the Indigenous Peoples in the United States rooted in treaties, cases, congressional policies, and other legal mechanisms. Federal Indian Law “integrates legal history and contemporary doctrine across fields of law and other branches of academic inquiry.” Cases and Materials on Federal Indian Law 5 (David H. Getches, Charles F. Wilkinson, Robert A. Williams, Jr., Matthew L.M. Fletcher, & Kristen A. Carpenter eds., 7th ed. 2017).

American Law pervades the lives of many Native people so completely that Federal Indian Law touches on concepts covered in Constitutional Law, Property, Criminal Law, Contracts, Civil Procedure, Business Law, Family Law, Environmental Law, Intellectual Property, and much more. 

Federal Indian Law is not Tribal Law. Tribal Law is a specific tribe’s own body of law. Tribal Law covers the traditional governance structures of tribes and how assimilation and reorganization policies have shaped modern tribal governments. While many modern tribal governments had their beginnings due to federal government intervention for resource extraction, many tribal governments are looking to incorporate more traditional governance structures into their governments now, especially alternative dispute resolution mechanisms like peacemaking courts.  

While Tribal Law is informed by Federal Indian Law, the “authority” behind Tribal Law originates from the Native Nation’s own inherent values and not the U.S. Constitution. “Indians” at the creation of the United States were considered extraneous to the Constitution; mentioned only in passing to show that only Congress had the power to regulate trade with us and that we were not to be taxed. We were viewed as “foreign” and “savage.” It is through Federal Indian Law that the Court and Congress have inconsistently interpreted the Constitution of the United States and applied it to Native people. The United States is built on the assumption that the land belonged to no one and that the colonists and founders were the first to discover the land. However, we know that to be untrue, especially once you have read Johnson v. McIntosh, 21 U.S. 543 (1823). There was no land to discover because Indigenous People already occupied those lands. Federal Indian Law is not Indigenous to a Native Nation, while Tribal Law is in the process of being indigenized. 

Why should these areas of law matter to you?

Simply put, you are on Indigenous (Native) land.                                                                                         

In addition, if you took Professional Responsibility, you might recall ABA Model Rule 1.1, which states: “A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation,” which “must include Tribal law.” Lauren van Schilfgaarde,  Indigenizing Professional Responsibility, 59 Judges’ J. 6, 7 (2020). 

“It is lawyer’s job to learn the law on behalf of their client, not to demand legal research from opposing counsel, or misrepresent precedent, or fail to research basic tribal jurisdiction and sovereign immunity questions.” Matthew L.M. Fletcher, Professionalism in Tribal Jurisdictions, 101 Michigan Bar J. 24, 26 (2022).

Regardless of where you might work in future, whether that be at a firm, a public interest organization, or as a judicial clerk, I have no doubt that you will have to utilize the principles of Federal Indian Law or Tribal Law in your work. Therefore, in order to provide competent, culturally-aware representation to your clients, it is your responsibility to take Federal Indian Law and Tribal Law as it will be “reasonably necessary” in your legal career, no matter what you do. I would also consider taking Continuing Learning Education (CLE) courses on these topics in the future. Also, if you specialize in an area of law, you should also be well-versed in how Native Nations are affected within that body of law.

Don’t just take it from me, Cheryl Redhorse Bennett, 2L Navajo Law Fellow and former Assistant Professor at Montana State University shared her views:

We have three sovereigns in the United States, the Federal government, State government and American Indian tribes. Oftentimes, we learn little to nothing of American Indian Nations and the complex relationship they have with the Federal government. Federal Indian Law is important because it plays an essential role in shaping the lives and rights of Native people and Native Nations in the United States. There are 22 Native Nations in the state of Arizona and 562 federally recognized tribes across the country. Students should take Federal Indian Law to develop a basic understanding of how the federal government deals with Native Nations, because they are likely to encounter these issues while they are in practice. (emphasis added). 

Happy November!

Check out the Indigenous Peoples Law and Policy  Resource Guide: American Indian Law.