By Becky Beaupre Gillespie
Photo by Todd Henderson
“ Even if you don't work on Indian law issues after law school, the opportunity to be a law clerk for an actual judge on active cases during law school is a singular experience. ”
The Michael J. Marks Professor of Law
Charlie Baser, JD’16, had considered becoming a photojournalist. But on a college assignment, she began visiting the Blackfeet Indian Reservation—and there, in northern Montana on the edge of Glacier National Park, she saw the ways in which history, culture and a tangle of tribal, state and federal laws can give rise to complicated disputes that sometimes echo an equally complicated past.
There were questions of tribal sovereignty and jurisdiction, tussles between ancient tradition and modern American legal norms, and a visible connection between the courts and the daily lives of people on the reservation. Native American culture had illuminated the intricate threads binding law and society—it all motivated Baser to become a lawyer.
What she didn’t expect when she headed off to the University of Chicago Law School, though, was that she’d have a chance to learn the law by working to unknot some of very questions that had drawn her in. In early 2016, Todd Henderson, the Michael J. Marks Professor of Law, and Justin Richland, a UChicago anthropology professor with an expertise in Native American law and politics, offered her a rare opportunity: to work as a student clerk on the Hopi Appellate Court in Arizona—and help pilot the Law School’s first experiential program in American Indian Law.
“This is an area of law that is intellectually fascinating but also deeply important,” Baser said. “There are these really interesting, thorny questions that haven’t been fully, or at least satisfactorily, settled but can have a real impact on people’s lives. I also love the way history uniquely plays into Indian law—it’s all based on treaties that were drawn up at the founding of the country. This ended up being one of the best experiences of my law school career.”
Last fall, Henderson and Richland, a Law School lecturer and an associate justice on the Hopi Appellate Court, officially launched the Hopi Law Practicum, which blends classroom instruction with cultural exposure and real-world experience. Although all of their coursework and most of their casework was done in Chicago, students enrolled in the practicum this past May visited the Hopi reservation in Arizona, where they attended oral arguments, presented findings to Hopi tribal officials, and participated in judicial deliberations.
“The practicum is an opportunity to broaden one’s horizons about the world by interacting with people who are approaching familiar legal problems—creating a good society, conducting your behavior in a way that comports with rules—but in a completely different cultural context,” Henderson said. “Even if you don't work on Indian law issues after law school, the opportunity to be a law clerk for an actual judge on active cases during law school is a singular experience. But, boy, I do hope some of these students pursue this area. There are huge issues about natural resources, water, gaming—and many of these are going to grow in importance.”
‘Unique learning opportunity’
The practicum also provides an opportunity that benefits both the students and the court, said Robert N. Clinton, JD’71, chief justice of the Hopi Appellate Court.
“It’s a fairly unique learning opportunity, and it’s something I didn’t have in law school in the 1960s,” he said. “This is a chance for students to become familiar with tribal government—they see that tribes have laws and functioning courts, and they learn how to do legal research with respect to the tribal courts. And obviously having law clerks is useful for any judge—it gives us the opportunity to bounce ideas off of some young minds. The clerks are utterly invaluable in putting in those tedious hours in spotting things in the record that, given the pressures of our docket, we might otherwise miss.”
In many ways, the story of the Hopi Law Practicum and how it came to be is one of converging interests, good timing, and the kind of intellectual curiosity that powers Law School life.
Henderson typically focuses on securities regulation and law and economics but developed an interest in Indian law that was sparked, in part, by his experience living near Hopi in 2001 while his wife was completing a medical residency with Indian Health Service. (Note: “Hopi” can refer to the language, the people, and the geographic location of the tribe.) Henderson was drawn to the “amazingly warm and fascinating society” and intrigued by the ways it differed from other parts of America.
But he didn’t begin writing about it until a few years ago, when a Law School alumnus who works on Capitol Hill told Henderson that few scholars were addressing Native American issues with a UChicago-style, big-picture, law-and-economics bent. After that, Henderson wrote several pieces on Native American issues for SCOTUSblog. Then he met Richland—their kids played baseball together—and the two decided to teach a Greenberg Seminar on Native American law. It wasn’t the Law School’s first class on this area of law, but it was the start of a new collaboration.
Richland, on the other hand, had discovered his passion for Native American culture and tribal justice as a law student at Berkeley in the mid-1990s. A fellow student, a member of the Hopi tribe and now also a Hopi appellate judge, helped recruit him to the new clerkship program, which had been created, in part, to help relieve a backlog in the relatively nascent and understaffed Hopi tribal court system. Richland was fascinated by the tribal courts, the development of Hopi jurisprudence, and by the way it helped shape their sovereignty as a tribal nation.
He eventually earned a PhD in linguistic anthropology, studying the ways Hopi and English languages were being used by litigants, lawyers and judges to argue claims before the Hopi courts, and came to UChicago in 2011. He was looking for a way to bring the Hopi clerkship program to the Law School.
The practicum has a natural interdisciplinary bent, combining philosophical and sociological questions with the practice of law. Students consider complex socio-legal issues in a wide range of areas, including constitutionalism, crime and punishment, civil procedure, property, contract, and family law, often exploring the balance between Anglo-American legal structures and longstanding tribal norms and considering the ways in which law and culture intersect on tribal land.
“There are foundational questions in this area of law that are at the heart of what law is and does—and what it means to people whose cultural values far preexist the legal system that is now in place,” Richland said. “Hopi is a community that has a very strong sense of who they are as distinct and unique from the U.S., but is nonetheless integrated into it. For them, these questions are very complex but also incredibly interesting and lively.”
Law School student Sterling Paulson enrolled in the practicum, in part, because he has a personal interest in indigenous culture but also for the opportunity to learn about a different jurisdiction that exists alongside state and federal law.
“It’s been fascinating seeing how tribal custom is woven in right next to U.S. constitutional law and state statutes,” said Paulson, whose wife is a member of the Osage Nation. “In tribal court, you’ll see testimony from tribal elders right next to long-accepted common law from England. Indian law is unique in that way, and it’s so interesting to me.”
Editor’s note: This was adapted from a longer story on the University of Chicago Law School website. Read it in its entirety here.
Originally published on August 24, 2017.