Imagine the following case is playing out in front of the U.S. Supreme Court:
The owner of an art gallery located on tribal land sues a woman who unlawfully sold him sacred items protected by tribal law. The gallery owner is a non-Indian. The woman, a member of a different tribe, contests that the court has no jurisdiction over two non-members.
When the woman resells the items to an art dealer out of state, the tribe sues her, seeking damages for the violation of tribal law. Still arguing that the tribe has no jurisdiction over her, the woman files suit in federal district court.
Both the federal district court and the appeals court rule that the tribe lacks jurisdiction. When the gallery owner and the tribe petition the Supreme Court, it agrees to hear the case.
This was the problem faced by law students across the U.S. who participated this month in the 23rd annual moot court competition sponsored by the National Native American Law Students Association. Though fictional, the problem mirrors real cases about tribal jurisdiction that are appearing in courts at all levels.
“Jurisdiction is kind of a hot topic right now,” said Josh Peterson, a third-year law student at William Mitchell College of Law. “It’s complicated, but there are a lot of these cases making their way through the courts.”
Peterson, 25, and partner Scott Jurchisin, 24, won first place at the competition, which took place March 6-7 at the University of Arizona Rogers College of Law. The duo beat more than 70 teams from law schools across the country and argued the case in front of a board of leading tribal judges, attorneys and academic experts.
Courtesy University of Arizona
Law students join for a photo at the annual moot court competition at James E. Rogers College of Law at the University of Arizona.
“It’s kind of intimidating,” said Peterson, who was also on the winning team last year. “The fact that you have the chief justice of the Navajo Nation asking you questions, and you know what he wants to hear, that’s intimidating.”
The competition begins in the fall when participants are given the legal problem. Working in teams of two, they must draft a brief without help from professors, attorneys or other professionals. Once the briefs are submitted, contestants have about six weeks to prepare their oral arguments, which must cover both sides of the case.
Judges’ scores are based on both the written brief and students’ performance during oral arguments, which last two days and include five rounds before a winning team is selected.
The stakes are high for all participants, said James Anaya, the James J. Lenoir Professor of Human Rights at the Rogers College of Law. The moot court, which is growing in prestige, pits the best Indian law students against each other – but it is also a venue to showcase skill in one of the most complex areas of American law.
“There’s a remarkable likeness to the real thing in terms of the complexity of issues, the setting, the time allotted and the style of questioning,” Anaya said. “It’s a really good tool for preparation.”
Anaya was one of five professionals chosen to act as Supreme Court justices during the competition. He was joined by Diane Humetewa, federal district court judge for the District of Arizona; Herb Yazzie, chief justice of the Navajo Nation Supreme Court; William Rice, professor at the University of Tulsa College of Law; and Rebecca Tsosie, professor at Arizona State University’s Sandra Day O’Connor College of Law.
Arguing Indian law in a setting with some of the leading experts gives students access to an education way beyond what they find in textbooks, Anaya said. The educational setting also allows for discussion that wouldn’t happen in real courts.
“I like to think this offers the opportunity to explore new arguments and new approaches,” he said. “There’s also a sense of wanting to advance justice for Native peoples. That underlies this moot court, and has throughout its existence. It’s a positive way to see Indian law not in terms of what it already says, but as an evolving tool.”
The competition is also a way to prepare the next generation of attorneys, said Sarah Deer, a professor of law at William Mitchell. Deer, who is an enrolled member of the Muscogee Creek Nation of Oklahoma, competed in the moot court 20 years ago and she sent five William Mitchell teams this year.
“So much of Indian law is difficult,” she said. “We lose in courts a lot. What we like to see is a new generation of attorneys with the passion to be advocates, to have that level of sophistication and persuasion where they are as polished as any other attorneys.”
Even students who don’t ultimately practice Indian law benefit from studying it and participating in events like the moot court, Deer said.
“The question of jurisdiction, or where a subject matter should be heard, that is one of the most complicated areas of all American law,” she said. “If students can master that level of complication and ambiguity in the Indian law context, then they will be well prepared to handle other kinds of American law.”