Law Wise • February 2021 by Kansas Bar Association

LAW WISE

PUBLISHED BY

FEBRUARY 2021 • ISSUE 4

Coordinators:

ethany J. Roberts, Chair, LRE Committee; B Lisa Leroux-Smith, Public Services Director; Nicolas Shump, Law Wise Editor; & Abbey Gilliland-King, Layout & Graphics

Greetings from the Kansas Bar Association (KBA). Welcome to the fourth edition of Law Wise for the 2020-2021 school year.

IN THIS ISSUE Native Americans and American History........... 1 Tribal Law and Order Act (TLOA)..................... 2 The Study of Tribal Law..................................... 4 Significant Native American Supreme Court Cases............................................................. 5 Indian Pride: Treaties and Sovereignty Lesson Plan................................................................. 6 Tribal Sovereignty and Power Lesson Plan.. 8 Terrific Technology for Teachers....................... 9 Editor Bio & Contact Info................................ 11

Native Americans and American History

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Though Christopher Columbus remains most associated with “Indians” or Native Americans based on his colonial encounter with indigenous peoples in the Caribbean, he never interacted with Native Americans in the present-day United States. Instead, the Spanish explorer Juan Ponce de Leon first made contact with Native Americans in Florida in April of 1513. Other Spanish explorers such as Hernando de Soto continued to explore the American South.

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The British battled the Powhatan Confederacy in the early decades of the seventeenth century—famous for the role of Pocahontas. The Massachusetts colony had its own interaction with the native tribes encountered. However, it was nearly a century and a half later, the Native American tribes fought with the French against the British from 1754 to 1763 in the French and Indian War. These events all took place in colonial times before the establishment of the United States as a sovereign nation. The Treaty of Hopewell in 1785, signed with the Cherokee Nation, established boundaries for the Cherokee people under the protection of this new country. Unfortunately, encroachment required the parties to sign another treaty, the Treaty of Holston, in 1791. In this treaty, the www.ksbar.org/lawwise

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Cherokee renounced all claim to lands outside their established borders. The Louisiana Purchase not only doubled the size of the United States, it also led to more conflicts between American settlers and indigenous people in these territories. The Creek Tribe fought unsuccessfully against Andrew Jackson, culminating in the Battle of Horseshoe Bend. The Creek lost 20 million acres of land to the United States government as a result. When the hero of Horseshoe Bend assumed the presidency in 1828, he continued to seize formerly sovereign Native lands. The Cherokee continued to lose their holdings, ultimately resulting in the Indian Removal act of 1830. To compensate for the displacement of these indigenous people and the loss of their land, the Act allowed the government to allocate land west of the Mississippi for those tribes. In addition to the Cherokee, the Act forced the removal of Chicasaw, Choctaw, Creek and even tribes in the North. President Van Buren continued this policy of removal which has collectively come to be known as the “Trail of Tears.” As the United States continued to pursue its unofficial policy of Manifest Destiny, Congress passed the Indian Appropriation Act of 1851, which established the reservation system that still exists today. The Dawes Act passed in 1887 and allowed for the dividing of reservations into smaller individual plots for

the people on these reservations. This led to a 50% decrease in land on these reservations, and much of this land proved difficult to farm. The plight of Native Americans improved with the 1924 passage of the Indian Citizenship Act granting full citizenship to Native Americans born in the United States. The Merriam Survey reviewed the results of the Dawes Act. As a result, Congress passed the Indian Reorganization Act of 1934, which encouraged Native American peoples to re-embrace their traditional culture and way of life, as well as providing opportunity for self-governance. In 1946, in the aftermath of World War II, Congress passed the Indian Claims Commission Act to allow Native American tribes to file claims against the United States government regarding land and compensation. However, while compensation was occasionally granted, no tribal lands have been restored. Currently, the Bureau of Indian Affairs (BIA) helps regulate the recognized Native American tribes who have their own laws and sovereignty. According to the BIA, there are 574 Native American tribes in the United States. The relationship between these indigenous people and the United States government has often been marked by conflict; however, recent efforts to improve these relations offer hope that the twenty-first century will mark a new phase in this relationship.

Tribal Law and Order Act (TLOA)

A longstanding concern for Native American nations and tribes is the ability to administer criminal justice on tribal lands. When President Barack Obama signed the Tribal Law and Order Act of 2010 into effect, this legislation provided additional powers for tribal courts to administer punitive justice and increased jail sentence for Native American offenders.

eral, state, tribal, and local law enforcement agencies. • empower tribal governments with the authority, resources, and information necessary to safely and effectively provide public safety in Indian Country. •

reduce the prevalence of violent crime in Indian Country and to combat sexual and domestic violence against Alaska Native and Native American women; prevent drug trafficking and reduce rates of alcohol and drug addiction in Indian Country; and

•

increase and standardize the collection of criminal data and the sharing of criminal history information among federal, state, tribal, and local officials responsible for

According to the National Council of American Indians, the purposes of this Act were to: •

clarify the responsibilities of the federal, state, tribal, and local governments with respect to crimes in Indian Country.

•

increase coordination and communication among fed-

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responding to and investigating crimes in Indian Country. In November of 2013, the Indian Law and Order Commission issued a report titled A Roadmap for Making Native America Safer as required by the TLOA. The full report can be found at https://www.aisc.ucla.edu/iloc/report/files/Front_ Material.pdf. The commission made the following recommendations: 1. Congress should clarify that any Tribe that so chooses can opt out immediately, fully or partially, of Federal Indian country criminal jurisdiction and/or congressionally authorized State jurisdiction, except for Federal laws of general application. 2. To implement Tribes’ opt-out authority, Congress should establish a new Federal circuit court, the United States Court of Indian Appeals. This would be a full Federal appellate court as authorized by Article III of the U.S. Constitution, on par with any of the existing circuits, to hear all appeals relating to alleged violations of the 4th, 5th, 6th, and 8th Amendments of the U.S. Constitution by Tribal courts; to interpret Federal law related to criminal cases arising in Indian country throughout the United States; to hear and resolve Federal questions involving the jurisdiction of Tribal courts; and to address Federal habeas corpus petitions. 3. The Commission stressed that an Indian nation’s sovereign choice to opt out of current jurisdictional arrangements should not and must not preclude a later choice to return to partial or full Federal or State criminal jurisdiction. The legislation implementing the opt-out provisions must, therefore, contain a reciprocal right to opt back in if a Tribe so chooses. 4. Finally, as an element of Federal Indian Country jurisdiction, the opt-out would necessarily include opting out from the sentencing restrictions of the Indian Civil Rights

Act (IRCA). Critically, the rights protections in the recommendation more appropriately circumscribe Tribal sentencing authority. As with Federal and State Governments, Tribal governments can devise sentences appropriate to the crimes they define. In this process of Tribal code development, Tribes may find guidance in the well-developed sentencing schemes at the state and federal levels. The following tribes exercise enhanced sentencing provisions of the TLOA: • Cherokee Nation (Oklahoma) • Confederated Tribes of the Umatilla Indian Reservation (Oregon) • Eastern Band of Cherokee Indians (North Carolina) • Assiniboine & Sioux Tribes of the Fort Peck Indian Reservation (Montana) • Hopi Tribe (Arizona) • Muscogee (Creek) Nation (Oklahoma) • Salt River Pima-Maricopa Indian Community (Arizona) • Tulalip Tribes (Washington) Though there is much work to be done to continue to improve relations between the U.S. government and Native American tribes—not to mention improving Native sovereignty—this roadmap recommends 2024 as an important benchmark. “Now is the time to eliminate the public safety gap that threatens so much of Native America. The United States should set a goal of closing the gap within the next decade. By 2024, coinciding with the centennial of the Indian Citizenship Act of 1924, Native Americans and Alaska Natives should no longer be treated as secondclass citizens when it comes to protecting their lives, liberty, and pursuit of happiness.”

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The Study of Tribal Law As the University of Wisconsin Law Library notes, “Tribal law is notably is distinct from federal Indian law. Whereas federal Indian law concerns the relationship between federal, state, and tribal governments, tribal law is the law tribes develop and apply to their members and territories.” It further notes, “Tribal constitutions and codes are the heart of self-government for over 500 federally recognized tribes, and are the lifeblood of Indian sovereignty. Each tribal government operates according to its own constitutional rules. Most tribes have written constitutions. Many of the constitutions are modeled on form constitutions provided by the United States Department of the Interior pursuant to the Indian Reorganization Act of 1934.” Given the breadth and diversity of tribal law, universities and other organizations have recognized the need to provide resources and education on tribal law. These efforts range from offering classes for undergraduates at colleges, universities and law schools, to more directed programs for native communities. One of the most directly focused organizations is the Tribal Legal Studies Project. The project originated in 1998 as a collaborative effort between the University of California, Los Angeles (UCLA) Native Nations Law and Policy Center, the Tribal Law and Policy Institute, and four tribal colleges (Turtle Mountain Community College, Salish Kootenai College, Diné College, and Northwest Indian College) to develop, pilot and implement Tribal Legal Studies curricula at tribal com-

munity colleges. The work of this project has not only developed curriculum, but it has also produced textbooks covering topics ranging from an introduction to Tribal Legal Studies, to Tribal Criminal Law and Procedure, Native Sovereignty, and combating violence against Native American Women. According to the American Indian Law Center (AILC), 26 law schools in 18 states have offerings ranging from Indian Law Classes, Certificates, and Indian Law Programs. According to the AILC, these Indian Law Programs often include an Indian Law Clinic too. Within the state of Kansas, both of its law schools at the University of Kansas and Washburn University have offerings in Indian law. The Tribal Law and Government Center at the University of Kansas School of Law provides courses and the opportunity to earn a Tribal Lawyer Certificate. Additionally, there is a joint JD/MA in Indigenous Studies. Second- and third-year law students can work in the Tribal Judicial Support Clinic offering services for regional and national tribes. The Washburn School of Law offers a core curriculum on Tribal Law. Additionally, the externship program offers students interested in Tribal Law with an opportunity to work in practice opportunities such as the Potawatomi Court System. As the relationship between the United States government and the various tribes continues to evolve, the opportunities to work in tribal law will only continue to grow.

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Significant Native American Supreme Court Cases This is only a brief list of some of the significant Supreme Court cases involving Native Americans and the United States government. In addition to the outcome of these cases, this list spanning nearly 200 years shows how the courts and the law remain one of the primary means through which Native American people have attempted to seek equity and justice through the years. Preston v. Browder (1816) - This decision involved North Carolina and affirmed an agreement between the North Carolina legislature and lands reserved for Native American tribes and the borders of the land established through its agreement with North Carolina. Johnson v. M’Intosh (1823) - This decision from the Marshall Court argued that tribes, regardless of what agreements had been made with the various states, did not have full sovereignty on their lands. The United States could restrict tribal rights through the discovery doctrine. Cherokee Nation v. Georgia (1831) - The Cherokee Nation had objected to the Indian Removal Act established the year before this decision. The Court ruled while the tribes had distinctive political and social rights, they remained under the authority of the Federal government as “domestic dependent nations”. Worcester v. Georgia (1832) - This decision known as the third of the Marshall Trilogy decisions, this case claimed tribes did not fall under state jurisdiction, and therefore states could not enforce state laws on tribal lands. Tee-Hit-Ton Indians v. United States (1955) - The Court ruled that Fifth Amendment compensation claims were not valid for Native lands unless there had been previous recognition from treaties or other formal measures. County of Oneida v. Oneida Indian Nation (1985) - The Court ruled a 1795 agreement between the tribe and the State of New York was not valid since it did not have federal approval. Maine Indian Claims Settlement Act of 1986 - In 1972, a group of tribes filed suit to attempt to recover 7.5 million acres and compensation in the amount of $150 million. In this act, they received $81.5 million, part of which resulted in a purchase of 300,000 acres of land.

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Indian Pride: Treaties and Sovereignty Lesson Plan Prairie Public Education Services Grades 9-12 Overview: Create understanding among students of the significance of treaties as a part of the foundation of Indian sovereignty and the rights of American Indians as having a political identity. Lesson Summary: Create understanding among students of the significance of treaties as a part of the foundation of Indian sovereignty and the rights of American Indians as having a political identity. Dispel myths about benefits owed to American Indians. Lesson Duration: Four class periods Learning Objectives: •Understand the origin of Indian treaties and their importance to contemporary Indian people and governments. •Be active questioners and critical readers while analyzing primary documents. •Compare and contrast the similarities and differences of treaties between foreign nations and the United States and Indian Nations and the United States. •Identify and explain the major concepts of the foundation of treaties between the federal government and Indian Nations. •Be able to identify the types of provisions that were common in many Indian treaties. •Explain in various forms the primary the reasons why treaties are living documents and importation today to Indian tribes to protect and preserve the rights contained within treaties. Additional Resources: •Videos from Episode on “Treaties and Sovereignty” PBS Indian Pride series •Monitor, Computers with Internet Access •Library access to published reference sources •Optional materials for visual presentation aids •Books, references, and handouts: •What is a Treaty?: https://kcpt.pbslearningmedia.org/resource/0a35b09d-06f1-4ec7-8194- 87831eab20e9/indianpride-treaties-and-sovereignty-lesson-plan/ •Lesson Plan Vocabulary: https://kcpt.pbslearningmedia.org/resource/0a35b09d-06f1-4ec7-8194-87831eab20e9/indian-pride-treaties-and-sovereignty-lesson-plan/ •Understanding Indian Treaties: https://kcpt.pbslearningmedia.org/resource/0a35b09d-06f1-4ec7-8194-87831eab20e9/indian-pride-treaties-and-sovereignty-lesson-plan/ •Importance of Indian Treaties Today: https://kcpt.pbslearningmedia.org/resource/0a35b09d-06f1-4ec7-819487831eab20e9/indian-pride-treaties-and-sovereignty-lesson-plan/ •Copy of Part III, A Summary History of United States Indian Policy, American Indians: Answers to Today’s Questions by Jack Utter, 1993, pp. 44 - 46. National Woodlands Publishing Company. •American Indian Tribal Governments by Sharon O’Brien. Indian Tribes as Sovereign Governments, (2004). •Wilkinson, Charles and the American Indian Resources Institute. Pp. 5 – 7. American Indian Lawyer Training Program, Inc., Oakland, CA. Lesson Activities: Class Period 1:

1. Students will view episode #102 “Treaties and Sovereignty” of the PBS Indian Pride series. Following a discussion of the video, questions will be charted for later discussion. 2. Students will be asked to identify any unfamiliar words from the video. These will be added to the key vocabulary terms list. Assignment will be given to students to: Read Handout #1: What is a Treaty? 3. Students will read the handout and add to the vocabulary list and terms\words which are unfamiliar. Out of class assign-

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ments: students will be asked to research the list of key vocabulary words, and additional words added to the list. 4. Students will answer the following questions: •What are some of the common reasons why treaties are entered into? •What are the five (5) primary elements of most Indian-U.S. Treaties? Class Period 2:

1. Students will be given Handout #2. Understanding Treaties. 2. Working in teams, students will be asked to assign members of the team to take one concept. Each concept from the reading will be identified and explained. Students will be asked to give an example (if applicable) within their state of a treaty, or nationally, which involved an Indian tribe; and which involved a foreign nation. Students will identify the provisions of each treaty and identify its importance to the nations who entered into the treaty. Summary of students’ work will be charted and retained for Class Period 4. 3. After reviewing Handout #2: teams will discuss and answer the following questions: •What were some of the major challenges when negotiating treaties between the United States government and Indian nations? •Would leaders of countries today agree to sign a treaty written in a language they could not understand? •Would leaders today sign a treaty containing ideas or concepts vastly different from their way of thinking, containing provisions that are vastly different from practices and customs that sustained their country and communities? Class Period 3:

1. Instruct students that they will work in the library for the third class period. Students in the team will research Kapplers Treaties and identify an Indian treaty between and Indian tribe within their state or region. 2. Teams will research and respond to the following questions: •Provide the name of the treaty. •Name the parties to the treaty. •What are the primary provisions of the treaty (by section)? Class Period 4:

1. Students will read Handout #3: Importance of Indian Treaties Today. 2. Based upon their research and review of the handouts, teams will present to the full class. 3. Based upon what your team researched about the treaty you selected, draw conclusions, and communicate to the full class your findings about a particular treaty that responds to the following questions: •What provisions did the tribe reserve for itself? •Are the tribal nations occupying their aboriginal territory (original homelands) as identified in the treaty? Culminating Activity:

1. Student recognizes and demonstrates: •An understanding of the role of treaties related to the American Indian livelihood. •An understanding of the interactions between American Indians nations and the United States government in their state or region. •Demonstrates an ability to use a variety of written, virtual resources as research. •Critical analysis to make informed judgments about current issues.

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Tribal Sovereignty and Power Lesson Plan Indian Education Division, Montana Office of Public Instruction Grades 9-12 Lesson Duration: One or two class sessions Learning Outcomes: Students will... 1. Understand sovereignty as defined in Essential Understanding 7 and give examples of sovereign powers possessed by two or more Montana Indian tribes. 2. Discuss or write about contemporary and past sovereignty issues, with regard to specific Montana Indian tribes and the state of Montana. 3. Learn how tribal sovereignty is what makes American Indian Nations unique and separate from other minority groups in the U.S. 4. Understand the Tribal Nations of Montana have a unique legal and political relationship with the Federal Government that stems from constitutional law, Federal Indian policy, treaties, and Executive Orders. Guiding Questions: 1. What is sovereignty? 2. What are some ways in which tribes exercise their sovereignty? 3. What are some examples of how Montana Tribal Nations interact with local, state and federal government? Additional Resources: 1. Montana Indian Education Association Website: http://www.mtiea.org/ 2. Tribal Sovereignty Primer: http://www.indian-ed.org/resources/learn-tribal-sovereignty/ http://www.americanindianpolicycenter.org/pubs/indinsov.html Student Performance: 1. Students will analyze historical and contemporary quotes from noteworthy American leaders (Native American and NonIndian) regarding tribal sovereignty. 2. Students will be assigned a quote from the list provided at (https://opi.mt.gov/Portals/182/Page%20Files/Indian%20 Education/Social%20Studies/9-12/HS%20tribal%20sovereignty%20and%20power.pdf) and be asked to explain some of the surrounding circumstances in which the quote was made and offer supporting evidence to reaffirm or disagree with some or all of the statement. 3. Students may present supporting evidence including but not limited to the following: the U.S. Constitution, Treaties, Executive Orders, court cases, Government-to-Government Proclamations, legal briefs, and relevant news articles. Lesson Activities: 1. Display the term “sovereignty” on screen for the whole class to see. 2. Have students brainstorm definitions of the term and discuss. Provide them with a sample quote regarding sovereignty from the list provided at:https://opi.mt.gov/Portals/182/Page%20Files/Indian%20Education/Social%20Studies/9-12/ HS%20tribal%20sovereignty%20and%20power.pdf. You might also want to do an Internet search on tribal sovereignty to access more quotes). 3. Discuss the quote sample in class, provide a historical context in which the quote was made and offer up insights into what aspects of sovereignty the person was describing. 4. Distribute the quotes to the students and ask them to address the following questions: •What is this particular quote addressing? •Who said it? What is their credibility on this issue? •What context was this quote made? i.e., court case, speech, proclamation, etc… •Do you agree/disagree with the statement? Explain your supporting evidence/justification for your answer. •What are some specific examples of how your particular quote might apply to Montana tribal nations?

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TERRIFIC TECHNOLOGY FOR TEACHERS

Indian Law Reviews

Office of Tribal Justice

Public Safety and Justice

Tribal Access Program

Tribal Justice and Safety

Tribal Law and Government Center

Tribal Law and Order Act

Tribal Law and Policy Institute

Tribal Legal Studies

https://www.tribal-institute.org/lists/reviews.htm An excellent resource providing legal articles on various aspects of tribal law as well as a list of law journals and other publications with a focus on Indian and tribal law. https://www.justice.gov/otj The website for the Office of Tribal Justice created in 1995 at the request of Native American tribal leaders to have a centralized office to address issues of legal and policy issues for Native peoples. https://www.ncai.org/policy-issues/tribal-governance/public-safety-and-justice A good resource for information on public safety and criminal justice on tribal lands including applicable federal laws. https://www.justice.gov/tribal/tribal-access-program-tap This program launched in 2015 to provide access to national crime information to help the tribes protect their citizens. Over 90 tribes and 330 tribal government agencies participate in the program. https://www.justice.gov/tribal A website maintained by the Department of Justice devoted to issues regarding safety and law enforcement on tribal lands. http://law.ku.edu/tribal Part of the KU School of Law, this center provides information for student and attorneys with specific information about tribal law. It offers a certificate program and a joint JD/MA program too. https://www.justice.gov/tribal/tribal-law-and-order-act This Department of Justice website provides access not only to the Tribal Law and Order Act, but additional related information to the Act as well. https://www.ncai.org/tribal-vawa/resources/tribal-law-order-act A helpful overview from the National Congress of American Indians regarding the Tribal Law and Order Act signed into law by President Barack Obama in 2010. https://www.home.tlpi.org/ A Native American nonprofit organization with a wealth of free information about nearly every aspect of Native American tribal justice and culture. http://triballegalstudies.org/ A collaborative project started in 1998 between the University of California, Los Angeles (UCLA) Native Nations Law and Policy Center, the Tribal Law and Policy Institute, and four tribal colleges (Turtle Mountain Community College, Salish Kootenai College, Diné College, and Northwest Indian College) to develop, pilot, and implement Tribal Legal Studies curricula at tribal community colleges. The project has produced four textbooks related to tribal law since its inception.

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10 LAW WISE | FEBRUARY 2021 iCivics Resources for Getting Involved & Taking Action

www.icivics.org

This site provides teachers with free resources that improve students’ civic knowledge, civic attitudes, and core literacy skills.

Fun Learning Opportunities

provides wonderful tools for educators and students. Take advantage of this great resource! The KBA also has resources for teachers. Visit: https://www.ksbar.org/page/educator_resources. About the Law Wise Editor: Nicolas Toledo Shump Nic teaches courses in American Electoral Politics, Design Thinking and Creativity, Film Studies, AP Comparative Government and Politics, AP European History, AP Psychology, AP US Government and Politics, AP US History, and AP World History for Constellation Learning. He also teaches English 110: Introduction to Academic Writing at the University of Missouri-Kansas City (UMKC) where he is a MFA student in Creative Nonfiction. He is a columnist for the Topeka Capital-Journal and other Gannett Kansas publications. He has served since 2012 as a Discussion Leader for the Talk About Literature in Kansas (TALK) program for Humanities Kansas.

Is Law Wise Helpful to You? We are always open to receiving comments, ideas and suggestions. Please reply to llerouxsmith@ksbar.org. Please let us know:

• Topics you would like to explore; • Projects and lessons you have developed that you would like us to feature; • Questions you would like to ask an attorney or judge.

We look forward to hearing from you.

He can be reached at nicshump@gmail.com

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The Kansas Bar Foundation, with Interest on Lawyers’ Trust Accounts (IOLTA) funding, provides support for this publication. Law Wise provides general information about law-related matters of interest to teachers, students, and the public in Kansas, but does not provide any legal advice, so readers should consult their own lawyers for legal advice. For further information about any projects or articles, contact Lisa Leroux-Smith, public services director, llerouxsmith@ksbar.org or 785-234-5696. Law Wise is published by the Kansas Bar Association, 1200 SW Harrison St., Topeka, KS 66612-1806, during the school year.