Indians 78, Washington State 0: Stories about Indians and the Law

• Published date: 01 July 2005
• Date: 01 July 2005
• DOI: http://doi.org/10.1111/j.1540-6210.2005.00471.x

450 Public Administration Review •July/August 2005, Vol. 65, No. 4

Steven E. Aufrecht

University of Alaska Anchorage

David S. Case

Landye Bennett Blumstein LLP

Indians 78, Washington State 0:

Stories about Indians and the Law

In the 1970s Washington State lost a series of legal cases related to Native Americans. These

cases exemplify the need for knowledge of federal Indian law—but such knowledge, out of con-

text, is insufficient. Key aspects of federal Indian law are hard to accept because of conflicting

stories that Americans already believe. The authors discuss the importance of stories and review

commonly believed stories that block acceptance of federal Indian law. They then discuss basic

principles of Indian law and distill four questions to help determine tribal jurisdiction. The authors

review the Marshal trilogy—three Supreme Court cases that set the foundations of modern Native

American law—and show how the legal principles play out in an analysis of three contemporary

court cases.

Our title comes from Deborah Juarez (1998), former

head of the state of Washington Governor’s Office of In-

dian Affairs. According to her story, the office was created

after the state lost 78 Indian-related cases in a row.1 We

originally intended to outline the basics of Native Ameri-

can law for public administrators—law that tells a story

about Native American nations living within a larger na-

tion. It recognizes that, as the original inhabitants of the

land, Native Americans continue to have special rights of

self-governance, and the U.S. federal government has a

trust-like role in protecting Native American interests. Yet

Washington State officials took case after losing case to

court. Why? We believe that non-Natives often have diffi-

culty accepting Native American law. This story is not told

in our history or public administration textbooks. In fact,

the legal story of Native Americans has been repeatedly

ignored throughout history. Other stories—stories about

manifest destiny and bloodthirsty savages, for instance—

have often had more sway on policy as Euro-Americans

looked West in search of land. Even today, conflicting sto-

ries interfere with non-Natives’ ability to accept Native

American law.

There are two components to this article: (1) Federal

“Indian” law. The federal law that applies to Native Ameri-

cans is a vast and complex body. This short article offers

only a glimpse, focusing on four questions that help to

determine whether a tribe has jurisdiction in a particular

situation. But Native American law cannot be understood

out of its factual context. For instance, when one man shoots

another, he may be seen as a murderer or as a hero, or as

both by different people. We review the origins of modern

Native American law to give it legal context.

(2) Stories. Stories are not trivial. Fischer writes, “Poli-

tics in a democratic society … is a struggle for power played

out in significant part through arguments about the ‘best

story’” (2003, ix–x). The stories that people believe pro-

vide the social, economic, and political context for the law.

Lawmakers’ stories affect how they write the law; indi-

vidual administrators’ stories affect how they implement

the law. Cognitive dissonance occurs when people are con-

fronted with situations that do not fit their preconceived

Steven E. Aufrecht is a professor of public administration at the University of

Alaska Anchorage. His current research interests include cross-cultural un-

derstanding for public administrators. He recently spent a sabbatical as a

visiting professor at both Portland State University and Renmin (People’s)

University of China in Beijing. E-mail: afsea@uaa.alaska.edu.

David S. Case is an attorney with more than 25 years of experience repre-

senting Alaska Native interests. He is the author of

Alaska Natives and Ameri-

can Laws

(University of Alaska Press, 2002), which analyzes the historical

application of U.S. federal law to Alaska Natives. He received the 1998

Denali Award from the Alaska Federation of Natives for dedication and

service to the Alaska Native community. E-mail: dcase@lbblawyers.com.