1972, February, Pg. 9. Lawyers and Indians.

• Author: by David H. Getches

1 Colo.Law. 9

Colorado Lawyer

1972.

1972, February, Pg. 9.

Lawyers and Indians

91972, February, Pg. 9Lawyers and Indiansby David H. GetchesDavid H. Getches is Director of the Native American Rights Fund, Inc. Headquartered in Boulder, NARF provides litigation of major significance to Indians throughout the country and is presently involved in numerous environmental, water rights termination and educational suits. NARF is funded by grants from the Ford Foundation, from the Office of Economic Opportunity, and from private foundations, and by individual contributions, and provides legal services to all OEO legal programs for Indian clients. In addition NARF is establishing a national Indian law clearing house library. Mr. Getches, an authority on Indian law and an expert on Indian treaty fishing rights, assumed responsibility for the development of NARF. In this article he describes some of the problems peculiar to Indian law and stresses the need for recognition of the Indian lawyer as an independent specialist. The opinions given are his own and do not necessarily represent those of either the Colorado Bar Association or The Colorado Lawyer.Lawyers representing Indians are faced with some difficult challenges: making sense out of a complex body of "Indian law," becoming associated with an often unpopular cause, and utilizing a legal system based upon the values of a culture which is alien to their clients. The handful of lawyers who have devoted a considerable segment of their practice to representation of Indians know this and generally take seriously the very special nature of the law with which they are dealing and the cultural differences of their clients. Depending upon the degree of their willingness to learn a new specialty, to withstand the burdens of community pressure, and to accept and respect their clients' values, attorneys can be the best friends or worst enemies of Indians. Lawyers who are aware of Indian law and sensitive to the Indians' needs and motivations can solve many Indian problems.

Special Laws for IndiansIndian law---though not a discrete body of law in the same sense as contract

10law---has distinctive origins. It springs from a vast collection of acts, laws, treaties, and regulations as well as a substantial body of common law. There have been some 389 Indian treaties concluded, in most cases with the United States, although during colonial days several tribes treatied with some of the states before the Constitution was adopted. A volume of the United States Code is devoted exclusively to Indians and there are over 2000 federal regulations relating to them. About 500 opinions of the Attorney General have been written to interpret various aspects of the law affecting Indians. The Bureau of Indian Affairs is administered according to an Indian Affairs Manual consisting of a whopping 33 volumes, filling nearly seven feet of shelf space. Lawyers searching for judicial interpretations of Indian law from among the thousands of reported decisions concerning Indians are impeded by the indexing systems of publishers unfamiliar with Indian legal issues and unaware of their importance.

Those who have tackled the chore of trying to make sense out of what the late Justice Felix Frankfurter called "the vast hodgepodge of treaties, statutes, judicial and administrative rulings, and unrecorded practice in which the intricacies and perplexities, confusions and injustices of the law governing Indians lay concealed" know the frustrations of the Indian lawyer. They know also how intellectually exciting the complex field can be. Some of the most challenging issues found in conflict of laws, international law, constitutional law, the law of trusts, and real property law are involved in Indian legal problems. A growing number of law schools---nearly a dozen nationally---are offering courses or seminars in Indian law. The University of Colorado has just instituted a course and, depending upon student interest and availability of resources, may develop its curriculum to include a seminar in the field as well as clinical work by students under the tutelege of Indian lawyers.

A first principle in Indian law is that the federal government has plenary power over Indian affairs. The Supreme Court has found that this power over Indians is based upon the versatile Commerce Clause which gives Congress the power "to regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes." Federal power in the area of Indian affairs---regulating Indian tribal and individual activities and the use of Indian lands and resources---necessarily excludes state and local governments from the areas. Broadly speaking, Indians while on Indian reservations are not subject to the local law of the state in which they reside, unless Congress so provides.

The Trust RelationshipMany tribes have treaties with the United States. Most treaties were sought by the federal government in order to effect a peaceable resolution of differences between Indians and white settlers, typically over the extent of territory to be occupied by each. In return for pledges of peace, cessions of vast land areas, and submission to the authority of the United States, the government made certain commitments and assumed obligations to them. These include a duty to protect Indians in their possession of the lands they reserved, a duty to deal fairly and responsibly on behalf of the Indians, and, usually, to furnish specified goods, such as farm implements, blankets, or livestock, and services, such...