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

Published date01 July 2005
Date01 July 2005
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 lawbut 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 trilogythree Supreme Court cases that set the foundations of modern Native
American lawand 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 Governors 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 administratorslaw 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 storiesstories 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, ixx). 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 (Peoples)
University of China in Beijing. E-mail:
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:

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