'The first 13' brings together Indian law pioneers

By Diane J. Schmidt
Special to the Times

ALBUQUERQUE, April 5, 2012

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(Special to the Times - Diane J. Schmidt)o

Native American attorneys who argued cases before the U.S. Supreme Court include, left to right, Raymond Cross, Susan M. Williams, Rodney B. Lewis, G. William Rice, Jeanne S. Whiteing, Melody L. McCoy, Marilyn B. Miles, Terry L. Pechota, S. James Anaya, Martin E. Seneca Jr., Heather R. Kendall-Miller and Dale T. White.

Y ou could hear the snap, crackle and pop of intellectual athletics when a different kind of all-star team - "The First Thirteen" - assembled at the University of New Mexico Law School on March 16.

These were the first Native American attorneys to argue federal Indian law cases before the U.S. Supreme Court from 1980 through 2001.

The event was sponsored by the American Indian Law Center and others and the attorneys donated their time and travel. Proceeds benefited the Pre-Law Summer Institute for American Indians and Alaska Natives, a two-month program of the law center that replicates the first semester of law school.

In fact, seven of the attorneys attended that summer program before going on to law schools around the country.

To John P. LaVelle, Santee Sioux, a professor at UNM's law school, "The symposium provided a unique opportunity to hear groundbreaking Native attorneys share insights and reminisce about their common experience of having argued Indian law cases before the U.S. Supreme Court.

"The stories they told were fascinating and delightful," he said, "a reminder of how far American Indian professionals have come in advancing Indian rights before the nation's most powerful and prestigious tribunals of justice.

"How fitting that many of the first thirteen themselves are proud graduates of AILC's legendary Pre-Law Summer Institute," he added.

Attorney Dale T. White, Mohawk, the first member of the Iroquois Tribe to argue a case in the high court, conceived of the "First Thirteen," and said he felt the idea to bring them together to talk about their personal experiences and how arguing before the Supreme Court changed their lives and careers would be of great interest to historians of the court as well as those specifically working in Indian law.

As a graduate of the pre-law summer program, he also wanted to give back. Twelve of the 13 attended, flying in from around the country, and the one who did not was presented on video.

Helen Padilla, director of the summer program, videotaped the event and plans to produce DVDs for future study. White hopes to develop the project into a book.

A short window

White successfully argued California v. U.S. in 1988. In that case the Metropolitan Water District of Los Angeles appealed the Ft. Mohave Tribe's lands claim to water otherwise bound for Los Angeles. The tribe won in a split decision.

Federal Indian law has a lengthy history. The first cases argued before the Supreme Court go back to the early 1800s and did not often favor tribes.

In 1980 Rodney Lewis, Gila River Indian Community, became the first Native American attorney to argue a case before the court and successfully argued Central Machinery Co. v. Arizona Tax Commission.

Lewis attended the pre-law summer program as had Jeanne S. Whiteing, Blackfeet, who worked with Lewis on the Central Machinery briefs and would later argue her own case before the court.

Lewis' case, argued before Justice Thurgood Marshall, established that the state of Arizona could not tax the sale of farm machinery to an Indian tribe when the sale took place on an Indian reservation by an off-reservation corporation.

Whiteing argued Blackfeet Tribe v. Montana in 1985, a case where the court decided the state may not tax Indian royalty income from leases.

The court looked favorably on Indian cases only during a short window, beginning in the 1950s up through the mid 70s, but White said that the tide clearly turned with Ronald Reagan's presidency and the appointment of William Rehnquist as chief justice (he was preceded by Warren Burger).

Since then the court has become more conservative, especially in protection of state's rights over tribal sovereignty.

Record: 6-6-2

Lewis said of the cases represented at the symposium, the first six were wins, between 1980 and 1985, followed by six losses and two ties.

The consensus of the attorneys at the symposium was that had federal law been properly applied, they would have won all their cases.

Heather Kendall-Miller, Athabascan, a Native American Rights Fund attorney who flew in from Anchorage, Alaska, unsuccessfully argued for an Alaska tribe's right to tax a contractor in 2001 in Alaska v. Native Village of Venetie Tribal Government.

After the court's decision, she said, "I was so disenchanted with the practice of law. Here I had gone to law school to apply the great principles (of federal Indian law) and some judges will never accept it.

"One of the ways we came to not accept this as a loss is that the reality in Alaska, on the ground, it is the tribes governing themselves," she said. "Nine white justices in long robes 6,000 miles away is not going to change the reality of our tribal communities. We are very self-governing."

James Anaya, a professor of human rights law at the University of Arizona, spoke frankly about how, when he brought his case before the court in 2001, Justice Anthony Scalia was incredulous over the idea that the state might not have jurisdiction on tribal lands.

The case, Nevada v. Hicks, revolved around state game wardens who entered Indian lands to come after a tribal member who was in possession of two bighorn sheep heads.

Anaya said he happened to spend a few weeks with Scalia in Thessaloniki, Greece, shortly after the case. He said Scalia was excited to visit a Greek Orthodox monastery where the monks had sovereignty over their territory. But he could not see how that had anything to do with his ruling against Anaya's case.

Anaya got a huge laugh from the audience when he said that his mother had called him after the court ruling and said, "So, did you win that important case?"

"No, we didn't," he said.

Then his mother said, "Well, at least you lost a really important case."

Court not friendly to tribes

The consensus that emerged from the symposium is that tribes do not take cases before the Supreme Court today if they can help it.

White said that the danger of taking a case to the high court is that losing may hurt the interests of Indian Country overall. The possibility must be weighed with the interests of a particular tribe's desire to appeal an unfavorable ruling in a lower court.

A decision last year in a case that had been moving through the courts for years, U.S. v. Jicarilla Apache Nation, went against the tribe on an 8-1 vote.

Justice Sonia Sotomayor, appointed by President Barack Obama, was the lone dissenter.

Notably, this was Sotomayor's first solo dissent and she wrote that the court's decision "rests on false factual and legal premises and deprives the Nation and other Indian tribes evidence in scores of pending cases seeking relief for the Government's alleged mismanagement of their trust funds."

Attorney Marilyn Miles, Kickapoo ancestry, whose loss in Lyng v. Northwest Indian Cemetery Protection Association (1987) was a blow to the protection of religious practices, pointed out that it is not just tribes that are suffering under this court but also gays, women, poor people, environmentalists, and other minorities.

White said later the group discussed which justice would be the next to retire.

There are always nine judges on the Supreme Court. They are appointed by the president of the United States and hold their positions for life unless they retire.

If one of the most conservative of the five judges retired, Obama could appoint a judge who could seismically shift the court in a more liberal direction.

A new approach

But the judges are not so clearly divided on Indian cases either, as was seen in the Jicarilla case, which resulted in protection of privileged communications between trust administrators and the government.

So it could be a long wait. And long-time Indian policy analyst Sam Deloria, Standing Rock Sioux, is not content to wait and argues for a new approach.

Deloria, who currently heads the American Indian Graduate Center and served as director of the American Indian Law Center since the 1970s, declared, "It's not going to do us any good to keep constantly complaining that they're not accepting our arguments.

"And, I think it would make much better sense to think very deeply about what it is that seems to be troubling them," he said, "and I think what troubles them is what we want.

"It's not that they don't understand Indian law, it's that the version of Indian law that we keep urging on them unsuccessfully - they don't buy it," he said. "And one of the reasons they don't buy it is they don't see clearly what the outlines are of tribal powers that we're talking about and because they're afraid of what lawyers call 'the slippery slope,' that if they let these guys do this, then what's next?

"They're very skeptical about going along with tribal claims because they just don't understand what it is we're talking about," he said. "I'd think we'd be much better off trying to depict to the court a workable set of governmental relationships that include tribal, state and federal and how that actually would work in practice.

"They don't know the situation of tribal governments on the ground and so they have misgivings," he said. "Well, let's find out what their misgivings are and address those, instead of just coming back every time quoting cases from the 1830s, or cases from the 1950s and early 60s. Let's go back and see what their problem is and try to address their problem."

Deloria said that in 10 years the first crop of law school graduates who'd attended the Pre-Law Summer Institute produced U.S. attorneys, an associate solicitor for Indian affairs, an assistant secretary of Indian affairs, and attorneys who argued before the Supreme Court.

He feels the summer program is one of the great success stories in Indian education, and should be held up to Congress as a model program.

When asked what makes the students who attend the summer program so successful, since they go on to have a 95 percent graduation rate in law school, Deloria said, "When we get done with them, they understand that getting through law school is a lot of hard work.

"They come to us with a lot of rhetoric about colonialism and a lot of undergraduate fancies," he said. "But the idea that they have to work really hard hasn't been explained to them so we spend eight weeks explaining it to them and not making excuses."

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