Continuing Legal Education

Representing Indian Tribes – Lessons for Practitioners

We have applied for 1-Hour of CLE Credit in North Dakota and Minnesota, and we have applied for the Minnesota Credit to qualify for the Elimination of Bias requirement. CLE Credit Approval is currently pending. We will update this page when those CLE credits get approved.

Thursday February 25 from 6:00 – 7:00pm

Description: This one-hour CLE will focus on reviewing how American Indian tribes as clients are meaningfully different than representing most local governments or private parties. It will include a substantive law component reviewing key Supreme Court authority on what makes tribes unique, including McGirt v. Oklahoma, Williams v. Lee, and White Mountain Apache v. Bracker. The CLE does not just review the holding of these cases, but provides critical insight into the role that race and tribal sovereignty have played in crafting distinctions between tribal clients – and will emphasize the Supreme Court’s repeated willingness to overturn state overreach when American Indian tribes and individual are involved in legal disputes. The CLE will connect the holding in these cases, which began in 1959 and extend through 2020 to the extraordinary efforts lawyers have gone to in order to secure Supreme Court reversal of state overreach in order to achieve justice for Indigenous clients. The other component of the CLE focuses on a critique of the role of the state when it comes to Indian tribes. Using Bryan v. Itasca County as a starting point, the CLE covers the doctrines of Indian preemption and infringement – with a special emphasis that the doctrine of preemption works differently in the context of American Indian Tribes then it does in any other constitutional law field. The Supreme Court has not required conflict or field preemption, but instead developed the doctrine of Indian preemption to protect Indian tribes.

Elimination of Bias Narrative: This one-hour CLE specifically seeks to educate the lawyer about the prejudice tribal governments experience when they appear as parties in the court system. State and federal courts have routinely treated Indian tribes as “private voluntary organizations” instead of as sovereign governments whose powers are inherent instead of delegated (like city, county, and municipal government). Because of this unique sovereign status tribal governments have the ability to raise sovereign immunity as a defense to litigation, but they also have the ability to levy taxes and claim exemption from state regulation.

Moreover, the CLE educates the audience to overreach by state prosecutors regarding Indian criminal defendants. The McGirt decision decided July 9, 2020 was a reminder that some states attempt to assert jurisdiction over Indian defendants even when the state has no criminal authority to do so, and that defendants like McGirt may end up spending years in a state prison when the state had no jurisdiction over them in the first place. Even though Minnesota is a PL-280 state meaning state prosecutors have more power on Indian reservations than in most of the United States, exceptions like the Red Lake Reservation prove the need for training on the limits of state power over Indian criminal defendants for crimes committed in Indian country. By educating the audience to the prejudice experienced by defendants like Jimcy McGirt and the Supreme Court’s clear correction of those sentences, the CLE meets the requirements of an Elimination of Bias credit.

Presenter: Professor Grant Christensen is an Associate Professor of Law and an Affiliated Associate Professor of American Indian Studies at the University of North Dakota. He also serves as an Associate Justice on the Supreme Court of the Standing Rock Sioux Tribe and as the co-chair of the American Bar Association Business Law’s committee on Tribal Litigation. He earned his J.D. from Ohio State and his LL.M. in Indigenous Peoples Law and Policy from the University of Arizona. He is the co-author of Reading American Indian Law: Foundational Principles from Cambridge University Press (along with Melissa Tatum). Prior to joining the faculty at North Dakota he taught Federal Indian Law as a Visiting Professor at the University of Oregon and an Adjunct Professor at the University of Toledo.