The late Browning Pipestem (Otoe/Osage) gets credit for coining the phrase "briefcase warriors" to describe Indian lawyers emerging from law schools in the 1970s. As Rennard Strickland (Osage/Cherokee) stated in reviewing the work of those lawyers 20 years later, "they and their growing number of non-Indian colleagues have used law to help shape an economic and political revolution which has drawn tribes into the courts as well as the congress to address the full range of Native issues." [Foreword to 1991-92 Gonzaga Law Symposium: "Law and the Native American"]
Professor Strickland told the story of a Keetoowah Band graduate student defending her dissertation. One of the examiners asked if the Band "had done anything other than go to court over the last ten years." The student thought for a while and asked a question in return, "What else could they have done? They couldn't have successfully waged a war."
In this telling, the notion of an Indian lawyer as a warrior marks a change in Indian tactics in pursuit of an unchanged strategic goal: to defend Native Peoples and lands from invasion. To paraphrase the famous aphorism of Prussian military theorist Carl von Clausewitz, in the context of Indian law, "Lawyering is the continuation of war by other means."
If this connotation of "briefcase warrior" has any validity today—whatever it might have meant in 1970 or 1990—we should see Indian lawyers and their non-Indian colleagues behaving as if they were at war—or at least in a serious struggle for survival. But that seems rarely the case.
The litigation for Standing Rock now being conducted by attorneys from Earthjustice looks more like a skirmish over a side issue than a fight for survival. As I pointed out in a column urging the briefcase warriors to "be bold," Earthjustice barely mentioned Treaty rights and did not challenge the notion that the U.S. Congress can override treaties.
The Earthjustice filing also failed to build a challenge based on international law—such as the United Nations Declaration on the Rights of Indigenous Peoples—and it presented the environmental threat to Standing Rock in terms of U.S. statutes rather than Indigenous Peoples' rights.
One might want to describe Earthjustice lawyers as "briefcase warriors" simply because they are representing a Native Nation. But, as noted above, the lawyers who prompted that description were trying to "shape an economic and political revolution…to address the full range of Native issues."
The "full range of Native issues" may include domestic U.S. law, but never starts there and never ends there. The starting point for any Native litigation that deserves the name "briefcase warrior" starts with the original free and independent existence of Native Nations. And, in 21st century terms, it doesn't end until it has raised global issues—the rights of Indigenous Peoples on the world stage.
Any citation of domestic U.S. law in a Native lawsuit—if the lawyers expect to be called "briefcase warriors"—will be presented in a context of original Native independence and continuing international status.
Bad things happen in litigation supposedly on behalf of Native Nations when the lawyers start out by embracing the "domestic dependent" and "plenary power" doctrines of U.S. federal Indian law. Those doctrines—based on the concept of Christian Discovery—attack Native existence, land ownership, and jurisdiction at the roots.
Cases like Bay Mills v. Michigan—where the Indians relied on the doctrine of U.S. "supremacy" to protect Native sovereignty—may appear to be "wins" for the Indians in the short term, but are losses in the long term, because they support the doctrine that Native jurisdiction may be overturned by a vote of the U.S. Congress.
Every effort to litigate Indigenous rights necessarily exposes them to the jurisdiction of courts. When—as in most cases—the courts are part of the U.S. system of dominating Native Peoples, the Native litigants should be prepared to challenge the system of domination itself, by challenging the system's basic doctrine of Christian Discovery.
Instead, all too often, lawyers arguing for Native litigants cave in to their adversaries at that basic level.
For example, in Dollar General v. Choctaw, lawyers for the Choctaw did not challenge the fundamental corporation argument based on the U.S. Supreme Court decision in Montana v. United States that "Tribal court jurisdiction over nonmembers is fundamentally incompatible with the United States' 'overriding sovereignty.'" Instead, the lawyers limited their argument to a set of "exceptions" in the decision. Unfortunately, in order to claim the "exceptions," the Choctaw had to embrace the basic premise in Montana, which was: "Indian tribes cannot exercise power inconsistent with their diminished status as sovereigns."
U.S. law, and federal Indian law in particular, may—in certain cases—provide leverage to a Native Nation in a given situation, but must be deployed carefully, lest they concede Native sovereignty in the long run. Dangerous enough to take your case to what the U.S. Supreme Court called "the courts of the conqueror"; wholly foolish to simply acquiesce in that claim of conquering.
In any lawsuit—no matter what the field—a strong approach will include multiple lines of argument to provide a court with multiple ways to reach a decision. A weak legal argument has only one line of argument—like a single chain that fails when a single link breaks. In no circumstance should a Native litigant put all their case on a single line of reasoning, especially when that line leads straight back to the doctrine of Christian Discovery.
To return to Professor Strickland's comments in 1992, "After almost 500 years of exposure to a European dominated system of laws, many pre-Columbian concepts of Native justice rooted in traditional aboriginal or indigenous values continue to guide tribal systems. Indian people have shaped law into a weapon for survival. … Indian law is in flux. …Dramatic shifts in the federal courts are forcing all parties to reevaluate strategies. …Law continues to dominate the lives of Indian peoples but the Native response is an ever-changing one, nonetheless rooted in traditional tribal values."
The next time someone says a particular lawsuit aims to "protect Indian heritage," take a close look. Does the lawsuit argue for the "heritage" of original free and independent existence? Does it aim to protect the "heritage" of Indigenous lands? Does it argue for the "heritage" of the Native Nation as a People in global politics? A "no" to any of these questions disqualifies the lawyers as "briefcase warriors."
Peter d’Errico graduated from Yale Law School in 1968. He was Staff attorney in Dinébe’iiná Náhii?na be Agha’diit’ahii Navajo Legal Services, 1968-1970, in Shiprock. He taught Legal Studies at the University of Massachusetts, Amherst, 1970-2002. He is a consulting attorney on indigenous issues.