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Experts Urge Pragmatic Approach to Resolving Indian Law Issues

Judge William Fletcher
U.S. Ninth Circuit Court Judge William Fletcher

By Andrew Cohen

Before his untimely death in 2010, Berkeley Law Professor Philip Frickey—a leading expert on Indian law and policy—urged academics to veer away from abstract scholarship and seek pragmatic solutions to the problems facing tribal communities. At a Thelton E. Henderson Center for Social Justice symposium on Sept. 27-28, Indian Law experts discussed strategies for achieving that very goal.

Heeding Frickey’s Call: Doing Justice in Indian Country examined pressing criminal, environmental, and human rights concerns facing Native Americans. Participants at the law school event also discussed ways to help educate the federal judiciary about tribal issues, and to seek remedies beyond the courts.

“Professor Frickey urged us to make legal scholarship effective on the ground,” said Alexander Pearl ’07, a Florida International University law professor and former research assistant of Frickey’s. “Scholars can help produce case studies that accumulate and analyze data to help Indians learn about problem areas in their communities and promote well-informed recommendations for solutions.”

U.S. Ninth Circuit Court of Appeals Judge William Fletcher delivered the keynote address, on Indian religious practice and the First Amendment, for the symposium’s annual Maria G. Olmos Law & Cultural Diversity Memorial Lecture. During a series of panel discussions, participants identified the main obstacles to legal progress within Indian communities, including a lack of resources, conflicting and competing interests, and jurisdictional hurdles.

Attorneys Curtis Berkey and Scott Williams of the law firm Berkey Williams LLP, which serves Native American tribes and tribal organizations, discussed ways Berkeley Law could remain a leader in Indian Law, following Frickey’s lead. The two co-teach the law school’s Advanced Indian Law seminar.

“This school has an obligation to the people of California and the Native American community to train students to work in Indian country,” Williams said. “We’re committed to expanding Indian Law opportunities for students; it’s a valuable experience for them because it combines so many areas of law such as land use rights, water rights, and jurisdiction.” Berkey emphasized the importance of recruiting Native American students and “providing meaningful curricular and externship opportunities.”

Rethinking criminal procedures

A criminal justice panel detailed some sobering challenges facing tribal communities. Studies show that 80 percent of Indian women have endured domestic violence and over 30 percent have been sexually assaulted. But those numbers may not convey the whole story. “Those in the field will tell you the sexual assault figures are higher than that,” said Sarah Deer, an assistant professor at William Mitchell College of Law.

Deer’s proposed solutions included strengthening the capacity of tribal courts to handle more serious crimes, and reforming federal law to put those crimes within Indian court jurisdiction. She also urged law clinics to help tribes update their statutes to better protect Native women, in part by eliminating outdated clauses such as spousal rape exception.

“There are almost 100 federally-recognized tribes in California and only about a dozen have courts and police stations,” Pearl said. “We face a real problem with protecting our Native American women and culture through robust tribal court systems.”

Deer and her fellow panelist, Judge Ronald Whitener, described how “one size fits all” prescriptions from national data fail to address variations among tribes, or to distinguish between on- and off-reservation crime. Whitener, executive director of the Native American Law Center and director of the Tribal Court Public Defense Clinic at the University of Washington’s law school, serves as an appellate tribal court judge.

“Tribes have gotten hooked on incarceration because it’s easy,” Whitener said. “But the values of Indian justice aren’t jail-based, and there’s a lot of money to be saved if tribes take jail off the table with certain crimes. Tribes should put more in the rehabilitation pot than in the retribution pot.” Whitener also lamented a scarcity of resources and growing competition among tribes for grants. Indian tribes that can afford to pay the best grant writer often receive the most funding, he said.

Participants also urged greater collaboration between scholars and Native American leaders to strengthen Indian legal systems, level the playing field between tribes, and honor Professor Frickey’s enduring legacy.

Berkeley Law graduate Katherine Florey ’04, a UC Davis law professor who studied under Frickey, said “Indian Law is appallingly under-taught in schools that produce a lot of clerks, which results in judges being largely uninformed about the issues.” Florey, who received the Thelen Marrin Award for graduating first in her class, added “I wouldn’t have an Indian Law specialty if not for Professor Frickey, and I want as many students as possible to have that same opportunity.”