IOWA CITY, Iowa - Overhauling federal Indian law could be in tribes' best interests, but not without extensive review of existing statutes, and not if it's done by the Department of Interior, legal scholars say.
"I think it's a very valuable academic project, but can we trust it to the government? Absolutely not," said Frank Pommersheim, Professor at the University Of South Dakota School Of Law and Associate Justice for the Mississippi Band of Choctaw Supreme Court.
Pommersheim, author of "Braid of Feathers" (American Indian Law and Contemporary Tribal Life), was joined by six other Indian Law scholars presenting at the Indigenous Nations Law Symposium held March 14 at The University of Iowa College of Law.
Professor Robert Odawi Porter, enrolled Seneca Nation of Indians, called the symposium because he was curious what other legal scholars were thinking about proposed changes to United States Code Title 25 - Indian law.
Last summer, Department of Interior's Indian Trust Transition Office Director Ross Swimmer sent a letter to tribes asking for their input on 280 proposed changes to Indian law. Interior later withdrew the proposal, after receiving complaints they did not give tribes enough time to review the proposals and provide input.
But the issue is not dead, Porter said. The Senate Indian affairs committee, led by majority counsel member Jim Hall, has been giving it some attention.
Legal scholars could be invaluable to tribes in this issue, Porter said.
"I just think it's the kind of project academics are well suited for," he said. "In that sense, I think we can make great contributions to Indian nations."
There is no question, Indian law is a mess, scholars agreed.
There are still laws in effect that authorize the United States government to abrogate any treaty with an openly hostile Indian tribe, or allow the federal government to pay tribes to wage war on other non-white citizens. Other laws make reference to "protection of Indians desiring civilized life," "hostile Indians," "heathens" or "inferior races."
The four volumes of Indian law have no overarching philosophy or direction. In fact, no Indian law has ever been repealed, even though the federal government has undergone at least six changes in general policy toward Indians in the last 200 years, the scholars said. The result is a hodge-podge of laws and a code that is difficult to understand.
"It has a set of kaleidoscope dimensions to it," Porter said. "You change it just a little bit, and it changes the picture you're looking at."
Because of this, no one knows what unintended consequences may result from reforming Indian law said Robert Laurence, Robert A. Leflar Distinguished Professor of Law at the University of Arkansas, Fayetteville.
"This may just be the first experiment in dismantling federal law so that the states can have control of Indian affairs," said John Lavelle, Associate Professor at the University of New Mexico School of Law. "We have to be conscientious about repealing massive amounts of federal law just for the sake of repealing it."
Several other scholars questioned the Interior's motives in wanting to review Indian law. The Interior has a vested interest, and has not always seen eye to eye with tribes, said Michigan State University-DCL College of Law Assistant Professor Donald Laverdure. Laverdure is an enrolled citizen of the Crow Tribe and has tribal affiliation with the Little Shell Chippewa.
"When billions and billions of dollars are missing and they want to clean up Title 25 - my sense is that's a little like polishing the brass rails on the Titanic," Laverdure said.
Interior's proposed changes were both too ambitious and not ambitious enough, Laverdure said.
Some laws Interior identified for repeal seem archaic but have modern implications for tribes, scholars said.
The Indian trader statute, makes it a federal responsibility to regulate trade with Indian tribes. Today, it protects tribes from having to pay state tax and is the basis for federal law trumping state law on reservations.
On the other hand, the proposed changes don't address any large issues in Indian country, scholars agreed. Repealing laws marking the end of treaty-making, or the general allotment act would be more important than repealing laws governing wagon transportation.
Perhaps the most effective way to standardize Indian law would be a constitutional amendment recognizing tribal sovereignty, the scholars agreed.
"The only way tribal sovereignty can ultimately be enduring is if it becomes an express part of the United States Constitution," Pommersheim said.