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Dakota Access Pipeline, Part 1: Legal Encounters of the First Kind

Briefcase warriors who start out meaning to defend their people quickly discover the practical meaning of a lawyer Latin phrase, sui generis. It’s a fancy way to describe a class of one, and it’s the only way to make sense of federal Indian law.

U.S. law everywhere but Louisiana is rooted in the English common law. Historians pretend that the modern nation-state came to be in the Treaty of Westphalia in 1648. If that pretense were true, the elevation of secular law over canon law would date from that time. Some other fake dates for the common law are 1066, when William the Bastard became William the Conqueror by completing the Norman conquest of England and reshuffling the feudal land titles at the base of the law, and 1215, when King John was forced to sign the Magna Carta and admit that the power of kings is not absolute.

These dates derive their power from the view of the common law as a coherent whole and, by and large, it is. The common law starts with trespass in the classic sense (on land) and branches out to “trespass on the case,” from which we get tort law. The earliest contracts involve land titles; the principal concern in the laws of descent and distribution involves title to real estate.

All of the law fits together in a coherent manner and at the base of it all is “livery of seisin,” the ceremony that vests an interest in real estate from the king to his vassal, the basis for feudal land title.

The criminal law also grows out of the feudal relation. The earliest criminal writs would allege an act contra pacem Domini Regis, against the peace of our lord the king. It originally meant whatever annoyed the king, and even today a criminal indictment usually reads “against the peace and dignity of the state,” in our times understood to be against a law passed by the legislature.

All of the common law is a big consistent structure with title to land arising from the sovereign as the basis.

In the U.S., allegedly a common law country, the Supreme Court has made us a gift called federal Indian law. It appears in the early 19th century from the fertile imagination of Chief Justice John Marshall and attaches itself to the smooth symmetry of the common law like some ugly cancerous growth

The only things federal Indian law has in common with the common law are that title to land is at the base of it, and that title is conferred by a European king. It is in this land of John Marshall’s imagination that the Standing Rock Sioux and their allies are having a legal encounter of the third kind.

Many people, particularly those not prosperous enough to keep a lawyer on speed dial, live out their whole lives without any direct contact with the legal system. They never enter the courthouse except maybe to serve jury duty or deliver a pizza.

Most people are restricted to legal encounters of the first kind, straightforward applications of valid law by persons with proper authority. The Congress, the state legislature, the board of supervisors, the city council---somebody with authority makes a law and when a person is accused of violating the law he or she comes to the courthouse for a procedure to decide if the law was violated and, if so, what the consequences ought to be, if any.

Some people who are prosperous enough to have a lawyer on speed dial have legal encounters of the first kind so regularly that at any given time, they have several lawsuits going. Donald Trump, for example, routinely does not pay contractors and makes people who have done work for him sue for their money,

While a legal encounter of the first kind may seem cut and dry—did he follow the law or not?----cases have a nuisance value (sum offered in settlement less than the cost of going to trial) and a settlement value (what is owed discounted by the chances of losing at trial) and most cases stop at one of those two figures rather than go through a trial and potentially an appeal to determine the “real” value.

I was often reminded when paying attention to my conduct in the courtroom that the most common legal encounter of the first kind is a traffic ticket. So the conduct of a dinky-ass municipal court judge—that would be me---could shape an accused citizen’s opinion of the entire legal system.

To some judges, a fair trial of a traffic ticket was nothing to obsess over because the worst that could happen was a small fine. To me, it was something to obsess over because I was representing the entire legal system.

When I involved myself in the Civil Rights Movement, I spent time where ordinary citizens seldom go, in legal encounters of the second kind. This would be when there is a law and there is no serious question that the law was violated but the issue in the courthouse is whether the law was valid in the first place.

In part II of this three part series, I will describe my own and the nation’s experience with legal encounters of the second kind.

Steve Russell, Cherokee Nation of Oklahoma, is a Texas trial court judge by assignment and associate professor emeritus of criminal justice at Indiana University-Bloomington. He lives in Georgetown, Texas.