Becoming A Tribal Law Attorney: Education And Experience

Becoming a tribal attorney involves specialising in the law and governance within Native American and Indian tribes, which is distinct from federal, state, and local government law. To become a tribal attorney, you need a law degree, a state license to practice law, work experience, and knowledge of tribal laws and their unique aspects.

Tribal attorneys may represent entire tribes or individual members within a tribe's legal system or within the US legal system. These roles are more common near tribal lands, and many tribes prefer Native American attorneys, ideally from their own tribe.

To effectively represent Native American tribes, attorneys must understand the complex interplay of federal, state, and tribal laws that affect Indigenous life. This includes familiarity with jurisdictional issues and the ability to navigate the tribe's unique legal system.

The University of Kansas offers a Tribal Lawyer Certificate program designed to equip law students with the skills to represent Indian nations and strengthen Indigenous tribal legal systems. The program includes courses such as Federal Indian Law, Tribal Judicial Support Clinic, economic development, taxation, and natural resources.

Pursuing a career as a tribal attorney requires dedication, a strong understanding of tribal legal systems, and a commitment to promoting and protecting the rights and interests of Native American communities.

Understand the unique aspects of tribal laws and legal systems

To become a tribal law attorney, it is essential to understand the unique aspects of tribal laws and legal systems. Tribal laws are distinct from federal Indian law and encompass the rules and regulations developed and enforced by Native American tribes themselves. These laws govern the relationships between tribal members, as well as the tribe's interaction with its territories.

Tribal sovereignty is a crucial aspect of understanding tribal laws. Native American tribes are considered nations by the US Congress and possess a quasi-sovereign status. This status grants them the authority to create their own legal systems, including laws, constitutions, courts, and self-governance. This sovereignty allows tribes to have control over their internal affairs and make decisions about their lands and communities.

Tribal laws can vary significantly from tribe to tribe, and it is important for attorneys to familiarize themselves with the specific legal system of the tribe they are working with. This includes understanding the tribe's jurisdictional issues, as many legal disputes in tribal law revolve around jurisdiction. For example, the Indian Child Welfare Act of 1978 removed federal and state jurisdiction over custody and adoption cases for Native American children or children living on reservations, giving tribes sole authority in these matters.

Additionally, tribal attorneys should be aware of the interplay between tribal laws and federal laws. While tribes have their own legal systems, certain federal laws and policies can impact tribal communities. For instance, the Tribal Law and Order Act of 2010 enhanced tribes' authority to prosecute and punish criminals, addressed violence against Native American women, and expanded law enforcement access to criminal databases. Understanding how federal laws interact with tribal sovereignty is crucial for tribal attorneys.

Furthermore, tribal laws often have unique cultural and historical contexts. Tribal legal systems may incorporate traditional dispute resolution methods and customs that are specific to the tribe's heritage. Attorneys working in this field should be respectful of these cultural aspects and strive to protect and promote the rights and interests of Indigenous communities.

Overall, tribal law attorneys need to possess a strong understanding of the distinct nature of tribal laws, including their sovereignty, jurisdictional issues, cultural context, and relationship with federal laws. By comprehending these unique aspects, attorneys can effectively represent Native American tribes and their members within tribal and US legal systems.

Develop expertise in federal Indian law

Federal Indian law is a distinct body of law that governs the legal relationships between the federal government and Native American tribes. It is a complex and dynamic area of law that has evolved over several hundred years of federal policies and interactions with tribes. As a tribal law attorney, developing expertise in federal Indian law is crucial to effectively represent Native American tribes and individuals within the tribe's legal system and the legal system of the United States. Here are some key aspects to consider when developing expertise in federal Indian law:

Understanding the Sources of Federal Indian Law

The sources of federal Indian law include principles of international law, the United States Constitution, treaties with Native American tribes, federal statutes and regulations, executive orders, and judicial opinions. It is important to familiarize yourself with these sources and understand how they shape the legal landscape of federal Indian law.

Recognizing the Complexity of Federal Indian Law

Federal Indian law is often described as complex due to its vast scope, including thousands of statutes, regulations, treaties, and court decisions. Additionally, the federal policy towards Native American tribes has swung back and forth over time, resulting in contradictory laws and policies. Furthermore, the wide variety of tribal sovereign powers and the tribal-specific nature of some laws add to the complexity.

Inherent Sovereignty and Domestic Dependent Nations

A fundamental principle of federal Indian law is the recognition of the inherent sovereignty of Native American tribes. This means that tribes possess self-governing powers that existed before the arrival of settlers in America and are retained by the tribes. At the same time, Native American tribes are also considered "domestic dependent nations." They are "domestic" as they are within the boundaries of the United States, "dependent" as they are subject to the power and responsibility of the federal government, and "nations" as they exercise sovereign powers over their people, property, and activities.

Plenary Power of Congress

Congress has broad power over Native American tribes, including the ability to limit or enhance tribal powers and even terminate tribal status. This power is derived from the Indian Commerce Clause of the United States Constitution, which grants Congress the authority to "regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes." However, the power of Congress is not unlimited, as the U.S. Supreme Court has the right to review Congressional actions regarding tribes.

Government-to-Government Relationship

Federally recognized Native American tribes have a government-to-government relationship with the federal government. This relationship is based on the retained inherent sovereignty of the tribes rather than race. It acknowledges the unique political relationship between the federal government and sovereign tribes.

Federal Trust Responsibility

The federal government has a trust responsibility to protect Native American tribes, their way of life, and ensure their survival and welfare. This obligation arises from treaty promises and the aboriginal claims of Native Americans to all land in America. The federal government has a duty to protect tribes and provide services such as education, housing, and healthcare.

Indian Country and Jurisdiction

"Indian country" refers to the territorial area over which Native American tribes have jurisdiction. It includes reservations, dependent Indian communities, and allotments. Tribes generally have more jurisdiction within Indian country than outside of it. However, it is important to note that the jurisdiction of tribes is complex and can vary depending on specific treaties, statutes, and court decisions.

Understanding Key Legislation and Policies

Several key pieces of legislation and policies have shaped federal Indian law and the relationship between the federal government and Native American tribes. These include the Indian Commerce Clause, the Indian Civil Rights Act, the Indian Self-Determination and Education Assistance Act, the Indian Gaming Regulatory Act, and the Tribal Self-Governance Act. Each of these has had a significant impact on the rights and sovereignty of Native American tribes.

Developing expertise in federal Indian law requires a deep understanding of the unique legal relationships between the federal government and Native American tribes. It involves studying the historical context, interpreting complex legal sources, and staying abreast of evolving policies and court decisions. By gaining a comprehensive understanding of federal Indian law, tribal law attorneys can effectively advocate for the rights and interests of Native American tribes and individuals.

Gain experience in Native American government

To gain experience in Native American government, aspiring tribal law attorneys should familiarise themselves with the unique legal systems and jurisdictions of individual tribes. Native American tribes are considered nations by the US Congress, with quasi-sovereign status and authority over their own laws, constitutions, courts, and affairs. This means that tribal attorneys must have an in-depth understanding of the specific laws and jurisdictions of the tribe they wish to work with.

One way to gain this experience is to pursue a law degree with a focus on Indigenous rights and Native American law. Courses such as the Sustainable Development LL.M. at the University of Washington School of Law offer an Indigenous rights concentration track, which covers topics such as the rule of law, human rights, environmental law, and economic development in Indigenous communities. Additionally, the University of Washington School of Law also offers a Tribal Court Clinic, where students can gain practical experience in tribal legal systems.

Another way to gain experience is to seek out internships or clerkships with organisations that specialise in Native American law, such as the Native American Rights Fund or the Native American Law Team at Holland & Knight. These organisations provide legal services to Native American tribes and organisations and can offer valuable insights into the unique legal challenges facing these communities.

Aspiring tribal attorneys can also gain experience by working with Indian Law Clinics, which are often associated with university law schools. These clinics provide law students with experience in Native American law while offering legal services to tribes and low-income Native clients. For example, the Indigenous Peoples Law and Policy Program at Arizona State University and the Indian Law Clinic at the University of New Mexico offer students the opportunity to work with tribal governments, courts, and organisations.

Additionally, gaining work experience with tribal governments directly can be a valuable way to learn about Native American government and legal systems. Working with tribal governments can provide firsthand experience in the unique challenges and issues faced by these communities and can help aspiring tribal attorneys develop the skills and knowledge needed to effectively represent Native American tribes and individuals.

Lastly, networking and building relationships within the Native American legal community can be a valuable way to gain experience and insight into the field. Joining organisations such as the National Native American Bar Association or state-specific associations, such as the Native American Bar Association of Arizona or the Northwest Indian Bar Association, can provide opportunities to connect with other attorneys and stay up-to-date with developments in Native American law.

Familiarize yourself with individual tribes' legal systems

To become a tribal law attorney, it is essential to familiarize yourself with the legal systems of individual tribes. Native American tribes are recognized as nations by the U.S. Congress, granting them quasi-sovereign status and the authority to govern their laws, constitutions, courts, and affairs. As a tribal attorney, you will need to navigate this unique legal landscape, which is distinct from local, state, and federal laws.

• Jurisdictional Issues: Native American law involves understanding jurisdictional issues, as many legal disputes arise from overlapping claims of authority between tribes, states, and the federal government. The concept of tribal sovereignty recognizes the inherent authority of tribes to govern themselves within the U.S. borders.
• Tribal Courts: Tribal courts play a crucial role in tribal legal systems. While they were initially established by the federal government, they have evolved to become recognized arms of tribal governments. Tribal courts have criminal jurisdiction over their members and, in some cases, over non-member Indians for crimes committed on tribal land.
• Tribal Laws and Regulations: Each tribe has its own set of laws and regulations that govern its community. Familiarize yourself with the specific laws of the tribe(s) you intend to work with, including their constitutional documents, bylaws, codes, and policies.
• Understanding Treaties: Historically, the U.S. government recognized Native American tribes as independent nations and entered into treaties with them. While the practice of treaty-making ended in 1871, understanding historical treaties is crucial for interpreting the rights and relationships between tribes and the federal government.
• Federal Recognition and Policies: The U.S. currently recognizes 574 tribal nations, and its policies stress government-to-government relations with these tribes. Stay informed about federal policies and legislation that impact tribal sovereignty, such as the Indian Reorganization Act, the Indian Child Welfare Act, and the Tribal Law and Order Act.
• Tribal-State Relations: There is often tension between the sovereignty of tribes and state governments. Familiarize yourself with the legal precedents and ongoing debates surrounding tribal-state relations, particularly in areas such as gaming, fishing, and hunting rights.
• Natural Resources and Land Management: Tribal governments have jurisdiction over their lands and natural resources. Understand the unique challenges and issues surrounding tribal land management, including historical land loss, environmental protection, and economic development initiatives.
• Cultural Sensitivity: As a tribal attorney, it is essential to approach your work with cultural sensitivity and respect for tribal traditions and values. Recognize the impact of historical trauma and strive to protect the rights and interests of the tribe(s) you serve.

Remember, each tribe is unique, and there is no one-size-fits-all approach to tribal law. By familiarizing yourself with the legal system of the specific tribe(s) you aim to work with, you will be better equipped to navigate the complexities of tribal law and effectively serve your clients or community.

Obtain a law degree and state license

To become a tribal attorney, you will need to obtain a law degree and a state license to practice law. This is in addition to other requirements, such as having a few years of experience and knowledge of the unique aspects of tribal laws.

To obtain a law degree, you will need to attend and graduate from law school. This typically involves completing a Juris Doctor (J.D.) program, which usually takes three years to complete. During your studies, it is important to focus on courses that will provide you with a strong foundation in federal Indian law and tribal legal systems. These may include courses such as Federal Indian Law, Tribal Judicial Support Clinic, economic development, taxation, federal courts, and natural resources. Additionally, consider participating in internships or clinical programs that can provide hands-on experience in tribal law.

Some universities offer specific programs or certificates in tribal law, such as the Tribal Lawyer Certificate program at the University of Kansas. These programs can provide specialized knowledge and skills for aspiring tribal attorneys.

After obtaining your law degree, you will need to pass your state's bar exam to obtain a license to practice law. The requirements for the bar exam vary by state, but typically involve a written examination that tests your knowledge of legal principles and practical skills. You may also need to meet character and fitness requirements, which may include a background check and an assessment of your moral character.

Once you have obtained your law degree and state license, you can begin to build your career as a tribal attorney. This may involve gaining experience through entry-level positions or further developing your expertise in tribal law through continued education and training.

Frequently asked questions