Researching JULY 2017 Vol 28 | No 1

ILLUMINATING THE INVISIBLE AMERICAN SOVEREIGNTY: A Profile of the ABF’s First Scholar of Native American Legal Systems RESEARCHING LAW VOL 28 | NO 1 | JULY 2017 Illuminating the Invisible American Sovereignty: A Profile of the ABF’s First Scholar of Native American Legal Systems

When did you begin working wasn’t a space to pursue those and non-Native ways of doing with Native American in the context of black letter things, especially for the Hopi. Justin B. Richland, Ph.D., J.D. , is an associate Nations? legal classes. I fortunately met a These courts look in many professor of and the social sciences at JR: I first started working with classmate named Patricia (Pat) ways like an Anglo-American the University of . He is the latest researcher to Native nations when I was a Sekaquaptewa, who is a member style court, but they also are law student, though I didn’t of the Hopi tribe and whose committed—and required by join the American Bar Foundation’s faculty, becoming a have any background in it. I uncle, Emory Sekaquaptewa, their own tribal law—to make research professor in the fall of 2016, along with former studied anthropology at Kenyon was chief justice of the Hopi decisions informed by the , Appellate Court at the time. customs and traditions of the faculty fellow Bernadette Atuahene. College for my undergrad. And so, I had always been interested We started talking about Hopi nation and its people. And in the meaning of cultural various issues and she was so I got very interested in the practices, norms and rules, very interested in developing challenges that are posed by the Professor Richland is a linguistic anthropologist Fellow for his research on Native American-museum how people make their own programs and working for meeting of these two systems. and legal scholar whose research focuses on partnerships, and the role of law in shaping experiences meaningful, and her community and her tribe. How do these worlds come the intersections of culture, language and law in those collaborations. He received his doctorate in how they make sense of their And she had just received a together to shape contemporary contemporary Native American governance. His anthropology from the University of California at world and the role that culture very prestigious Echoing Green Hopi jurisprudence? That work has explored legal discourse analysis and Los Angeles (UCLA) in 2004 and his J.D. from the plays in that. After graduating, Fellowship to start a clerkship ended up becoming the work semiotics, anthropology of law, and contemporary University of California, Berkeley in 1996. I couldn’t commit to pursuing program. So she put together that I would mostly focus on. Native American law, politics, art and ethnographic Professor Richland lives in Chicago’s Hyde Park a Ph.D. in anthropology, so I a program where students In the meantime, Pat turned museology. neighborhood with his wife and three sons, ages decided to go to law school. I would get course credits to be this program into a nonprofit He is author of two books, “Introduction to Tribal 10, 7, and 5. His wife, Lindsey, is an associate was admitted to Berkeley Law, legal clerks for the Hopi tribe. organization. After graduating Legal Studies” (with Sarah Deer) and “Arguing professor in the Department of Comparative Human but it quickly became clear They’d get to work on live cases law school, I worked with them with Tradition: The Language of Law in Hopi Tribal Development and the Committee on Education at to me that conventional legal and assist in the legal research for a year, but they had very Court,” as well as articles in several leading journals the . She also directs research practice was not going to be in necessary for the appellate limited funding, so I had to including the Annual Review of Anthropology, at the university’s Learning Lab. my future. I was much more court to do its job. Their support myself working odd interested in how the law helps efforts would directly aid in the jobs. And so I thought, “well, American Ethnologist, Discourse & Society, and The ABF recently sat down with Professor Richland us make sense of our world and development of Hopi common why don’t I go back to school the ABF’s Law & Social Inquiry. Since 2015, he has to discuss his background in tribal law, his research, the relations that people have law. I started working in that and get a Ph.D.?” I ended served as associate justice of the Hopi Appellate and how he is currently working with and for Native by virtue of the law. I got very program in 1995 and I was up going to UCLA, and the Court, the highest court of the Hopi Nation. In people in the . An edited transcript of interested in those theoretical just blown away. Tribal courts rest is . I took my legal 2016, he was named a John Simon Guggenheim our conversation follows. types of questions and there sit as a nexus between Native education and went to graduate

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school in anthropology. I found continue to shape linguistic You expanded on this topic within a community. It is rarely a way to bring those disciplines anthropology to this day. So this further for your second book, about final determinations of together to continue working whole theory—the Sapir-Whorf Arguing with Tradition: The rights. There are also subtleties on tribal law and to understand hypothesis—emerged through Language of Law in Hopi and challenges that Hopi judges how it works. To ask those findings based on the Hopi Tribal Court. face. They are, on the one hand, big questions about meaning language. It became a natural fit JR: Yes, correct. There have committed to a system that has and interface of cultures and for me—as a lawyer and soon- been studies of tribal courts a very Anglo-American look the role that law plays in all of to-be linguistic anthropologist— based on surveys, interviews and inheritance—due process, that. I was thrilled to be able to to pursue a study of the and analyses of written cases, the rule of law, and generalized continue with that work. language and discourse of but nothing had attempted to norms that treat people equally courtroom argumentation out understand how the courts under all circumstances. This Your Ph.D. dissertation at Hopi. And that’s what my actually work on a day-to- is vastly different than how focused on one of those “big dissertation looked at. It was day basis. I argue in the book the Hopi people understand questions;” on understanding titled “Arguing with Tradition” that if you only understand fairness in their community. the way litigants, lawyers, and I analyzed a bunch of cases written products or if you only In their community—who you and judges use the Hopi and and hearings—both in English interview people, you’re missing are, what clan you’re from, English language to argue and in Hopi—to understand something. You are missing what village you’re from—that claims in Hopi courts. Can you Professor Richland with Patricia Sekaquaptewa and the late Emory Sekaquaptewa how the Hopi people argued the very subtle, challenging, all matters. It matters in all tell me more about that? with scholars and other Hopi very much interested in what in court. And to understand and ongoing negotiations that sorts of ways. And your idea JR: One of the things that speakers, spearheaded the kinds of activities, actions, and how they were using their are the bread and butter of of culture can be dependent on became clear to me when I was drafting and publication of the consequences happen when language to make certain kinds the Hopi legal system. Their your position as a ceremonial going out to Hopi and observing first major Hopi dictionary in people talk to each other in of arguments and what worked system is about ongoing leader or as a member in a cases was most questions of 1997. Some call him “the Hopi any language. It turns out that and didn’t work in that context. relationships among people particular clan. People have culture were being raised in oral Daniel Webster” because of this. the Hopi language has a very different understandings of arguments. Not in the texts, He was an incredible man and particular place in the history of culture and so different rules case files, or other court records. my mentor. He died in 2008 and linguistic anthropology. Back in can apply. So it’s very hard And that is partly because, I miss him every single day. So, the 1930s, Benjamin Lee Whorf to apply general principles. even though people had been oral argument is where things came up with this massively Hopi judges are trying to deal studying the Hopi language were being worked out, and I influential theory of linguistic with issues, but they are stuck for 89 plus years, there was no needed a way of understanding relativity—that language shapes between meeting the legitimacy standard written form for it, what making claims through the way we think about and demands of an Anglo-American until relatively recently, when oral discourse actually looks experience the world. Though due process system and of Emory Sekaquaptewa, working like. Linguistic anthropology is his specific findings remain Hopi values, customs and controversial—including tradition. I was really interested the theory that Hopi people in understanding that tension It became a natural fit for me—as a lawyer experience time differently for the book. Along the way, because their habits of speaking the book dispels a lot of easy and soon-to-be linguistic anthropologist—to the Hopi language organizes dichotomies, like ‘when a pursue a study of the language and discourse time differently, the general community evokes custom and theory that languages influence of courtroom argumentation out at Hopi. culture, it’s always going to be the way we make sense of our Professor Richland currently serves as an associate justice of the Hopi Appellate Court. He is pictured better or more liberating.’ Well, experiences of and in the world here with Chief Justice Robert N. Clinton and Justice Patricia Sekaquaptewa during a session at the Hopi Tribal Court in Keams Canyon, Arizona.

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worked to summarize the relationships between tribes Hopi judges are trying to deal with issues, emerging field of tribal legal and non-Native governments, scholarship. Tribal courts didn’t like state governments and the but they are stuck between meeting the really emerge in any robust way federal government. My work legitimacy demands of an Anglo-American until the eighties. The shifting up until now has mostly focused due process system and of Hopi values, powers, forces, and political on tribal law, except when possibilities gave tribes an I’m teaching. In the teaching customs and tradition. increasing control over their context, federal Indian law is a legal system. I think Sarah much more established area of and I are both proud of this legal scholarship and is taught that’s not always true. There can go in all sorts of directions. because it’s written in a way regularly. And so, I wanted are some people in the Hopi And that’s all really important that presumes Native people are to figure out a way to explore community who are legitimately to attend to. reading it and thinking about the same kinds of questions, members of it, but who don’t how to further understand their through the same methods necessarily have the kinds of There have been three own tribal legal systems. It has of face-to-face interaction, rights they expect to have under editions of your first book, theory questions at the end of but between tribes and the the traditional way of doing Introduction to Tribal Legal each chapter. What would you federal government. There’s Studies, with co-author Sarah do in your community? How a general federal policy that’s Professor Richland in his office at the University of Chicago, where he holds appointments in the things. So these dichotomies College and the Law School. that culture is always good or Deer. And you wrote the first would you think about this? It been officially in place in the always reifying do not reflect the edition while you were still in has a lot of samples texts from United States since 1994 called he directed the Army Corps of than that obviously, but that’s graduate school at UCLA? actual practices on the ground. courts and tribal legal scholars. tribal consultation. Since the Engineers to stop the pipeline, the one legal hook. I should It’s not until you look at how JR: Yes, at the time that Sarah And so it’s really written for Clinton administration, every so that consultation could add that despite all of the people are actually talking to and I were first writing this, tribal legal professionals and presidential administration take place in a proper way, as policy language and executive each other that you realize it’s there was really no text that young Native individuals has authorized, re-upped, or part of a larger Environmental statements in support of tribal an unfolding negotiation that interested in tribal law. It still continued to support tribal Impact Study. In fact, the Army consultation, the executive is one of the few books written consultation. It is the idea that Corps of Engineers ultimately branch still has to voluntarily from and for that perspective. if any federal policy, shift, or rescinded the permit to Dakota submit to it. A court cannot And I think it’s what I am most decision made by any part of Access on the grounds that require the Army Corps of proud of. the executive has potential to better alternatives exist after Engineers to consult and there impact Native Americans, the having consulted with the is no legal binding penalty to Can you tell me about federal government is required tribe. Ultimately, that all got not consult in a meaningful the research that you are to consult with the tribes. For overturned by the Trump way. What I’ve been doing is currently working on? example—take the Dakota administration and it has collecting a bunch of data— JR: It has a lot of different Access Pipeline. The objection all moved forward. And of from the Hopi tribe and components, but the idea I’m the Standing Rock Sioux have course, it has already leaked elsewhere—on moments of dealing with the most centrally is that after the permit to as predicted. The whole consultation between tribal is that there are two sides to law Dakota Access was approved, “#NoDAPL” and “Stand with leaders and federal agents. I’m in the United States as it relates the Army Corps of Engineers Standing Rock” protest and looking at the ways in which to Native nations. There’s fast tracked the construction of movement was the fallout of culture and law are being talked tribal law, the internal law of the pipeline without substantial a failure to take seriously the about in those contexts. I’m also tribes, and then there’s federal tribal consultation. Right at opportunity to partner and working closely with the Hopi Indian law, which governs the the end of Obama’s presidency, consult with tribes. It’s bigger Cultural Preservation Office.

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They are one of the leading Ethics, Aesthetics, and the American human remains and Native and non-Native. For tribal agencies and they’ve been Very Idea of Natural History, cultural property to inventory another exhibition, Alaka very aggressive in insisting that your project in collaboration it and reach out to the tribes persuaded a well-known Pawnee federal agencies account for with the Neubauer Collegium they belong to in order to artist named Bunky Echo-Hawk Native perspectives. They have for Culture and Society and determine how those items were to become the artist-in-residence been successful in helping to the Field Museum. collected and whether or not at the Field Museum. He made reshape certain federal policies JR: That project focuses on they should be returned. The works to hang alongside and and actions by insisting that the particular context of tribal Field Museum here in Chicago comment on the museum’s Native and Hopi perspectives consultation as it shapes has an enormous collection of ethnographic Pawnee materials be taken into account in the museums. One of the arenas Native American material— from the turn of the 20th planning stages. So my work that federal law has intervened upwards of 30,000 items—and century. And the show that I’m looks at what they’ve been strenuously in is the collection one of the largest collections co-curating involves two Native doing, and what others have of Native American human of Hopi cultural material. In American artists—Chris Pappan, been doing, to figure out remains and cultural property the 25 years since NAGPRA’s who is of Kanza, Osage and what works, what doesn’t, by museums and universities. passing, what started off as an Cheyenne River Sioux descent, and how the process could be In 1990, there was a law adversarial meeting between Professor Richland speaking with Raymond D. Fogelson, professor emeritus of anthropology at the and Rhonda Holy-Bear, who strengthened and improved. passed called NAGPRA (Native tribes seemingly wanting their University of Chicago. Fogelson is known for his research on the ethnology and ethnohistory of Indians is a member of the Cheyenne of the Southeastern United States. American Graves Protection and property back and museums River Sioux Tribe. Their work Last year, you were awarded Repatriation Act). It requires seemingly wanting to hold onto productive outcomes? How in community relations, for the exhibit is a reflection a John Simon Guggenheim institutions that receive federal them has turned into something has law initiated all of this and contemporary community and commentary on the Fellowship for Open Fields: funding and that house Native else. What’s beginning to be does it force a conversation outreach, and involving the materials in the Field Museum, discovered is the opportunity that otherwise would not community in the work of the but in two very different to partner in really novel and have existed? And so for the institution and how it represents ways. Chris’s work is more interesting ways. Partnering Guggenheim Fellowship, I am anthropological information. a critique and it talks about does not mean that everyone is exploring all of this through an She had a show a few years ago the contemporary political, always happy. Partnering also ethnographic study of museum in which a well-known fashion social, and cultural situations means hearing harsh criticism, and Native interactions around designer named Maria Pinto Natives find themselves in sometimes being told “no,” and these issues. came and basically interned today. His effort is revitalizing then finding ways of moving in the museum’s Native North and plays with critique, but is forward that respects those That project is based on an Americans collection. She also in conversation with Field positions. One of the expressions exhibition you co-curated at drew inspiration from this Museum’s collections. Rhonda’s of that ongoing partnership the Field Museum in Chicago, collection and designed her own work is more of an homage has been the introduction of during your time as adjunct contemporary pieces based on to what she once described contemporary Native American curator of North American the collection, and then worked as the “the treasures of her art into museums. How do these Anthropology. with the museum to exhibit her people” that are in the Field partnerships emerge? What is JR: Yes, the curator of North pieces with select items from the Museum. She makes these very the potential for rethinking what American Anthropology at Native American materials that carefully crafted dolls using Professor Richland with his students in the Hopi Law Practicum program during a recent visit to the museum exhibitions and cultural the Field Museum is a woman inspired them, alongside each extremely intricate beadwork Hopi Tribal Court. From left to right: Sterling Paulson, student at UChicago Law School; Professor representations look like? How named Alaka Wali. She is an other, in tandem. Showing the and materials. The dolls wear Richland; M. Todd Henderson, professor at UChicago Law School and co-director (with Richland) of the Hopi Law Practicum; Patricia Sekaquaptewa, assistant professor at the University of Alaska Fairbanks do partnerships between Natives incredible anthropologist, two side-by-side gave audiences the elaborate regalia from and associate justice of the Hopi Appellate Court; Andrew Mackie-Mason, student at UChicago Law and non-Natives produce advocate and curator who a new perspective on thinking Plains culture and the beadwork School; Robert N. Clinton, professor of law at Arizona State University and chief justice of the Hopi surprising, unexpected, and traditions from which they Appellate Court; and Peter Hegel, student at UChicago Law School. is very much interested about all the materials, both

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come. “Open Fields: Ethics, humble me that I’ve been given to join the research faculty at law figures centrally in those Aesthetics, and the Very Idea of this responsibility. I’m now the ABF? If you do work in law and sociolegal efforts. I can think of no better Natural History” is a project running what’s called the Hopi place than the ABF to help me JR: I have known about the scholarship, there are very few places that based on this. Law Practicum at the University American Bar Foundation for tell this story. Felix Cohen (son of Chicago Law School, a of the great legal philosopherYOUR GENER OSITY MADE $7 MILLION The special exhibitions “Drawing about 20 years. When I was a have the resources and the connections to IN GRANTS POSSIBLE FOR 2017 program similar to the one I Morris Cohen) was the head on Tradition: Kanza Artist Chris law student at Berkeley, I first both the profession and the academy that was in as a law student. The solicitor of the Department Pappan” and “Full Circle/Omani heard about the ABF through students in the program serve the ABF has and always had. of the Interior in the 1930s, a Wakan: Lakota Artist Rhonda the well-known Ph.D. program as clerks for the appellate court thank chief architect of the so-called thank Holy Bear” are running at the there called Jurisprudence and for a year. We hear matters you “Indian New Deal,” and a you Field Museum until January 13, Social Policy. I wasn’t in that ABE INSUREDS ABE INSUREDS on criminal law, civil appeals, staunch advocate for Native 2019. To learn more, please visit program, but I was introduced U.S. legal contexts. For me, I falling apart from unsolvable $3. Million $3. Million and help to decide and issue American welfare. He once fieldmuseum.org. to some of the ABF’s research see the opportunity as a way problems of substance abuse awarded to awarded to judgements. YOUR GENEROSITY MADE said the treatment ofAMERICAN Native BAR FUND FOR JUSTICE and I learned about the to further an understanding$7 MILLIONand INpoverty, GRANT orS as wallowing Americans is the “canaryFOUND inA TION AND EDUCATION You currently serve as an organization as this amazing and appreciation of tribal law,POSSIBLE in FtheOR filthy 2017 lucre of Vegas style You are also co-founder of The $3 3,815 associate justice for the Hopi resource and a pillar of law federal Indian law, and the casinos. While these issues do the coal mine” of American Nakwatsvewat Institutute, democracy, and that if you awarded in Appellate Court. How were and society research. I was then contemporary place of Native face many (though not all) of OPPORTUNITY GRANTS a nonprofit organization you appointed to that position recruited to the University of Nations and their peoples in these communities today, the want to know how the health that works with Native and what does it involve? Chicago by John Comaroff, who the U.S. more generally. Despite actual story of contemporary of a nation is, you will attend communities. to what’s happening to its most JR: I had been clerking for was on faculty at the ABF at being in close contact for Native Nations is a more JR: Yes, Pat (Sekaquaptewa) and vulnerable populations. It the Hopi Appellate Court the time. It was definitely on my hundreds of years now, Native nuanced one that, above all, I, along with a student of ours seems to me that this is still true since the mid-1990s, first, mind that coming to Chicago American Nations, their laws must include a story of Native while we were at UCLA, started today. And I look forward to as a student, and then later, would be an opportunity to also and governments, are one of the endurance, self-determination, The Nakwatsvewat Institute. It working with and through the as a volunteer. I have always have a relationship with the least known areas of law in the and success as well. It behooves is a dispute resolution nonprofit ABF and its amazing faculty maintained a connection with ABF and all of the leaders of United States. We really have us to appreciate and understand organization that offers training and staff in furthering an the court and continued to sociolegal scholarship who have three sovereign governments in the place of Native Nations, on alternative dispute resolution understanding of and about visit the community. Then, come through this institution. the United States—the federal their ongoing efforts at self- to the Hopi people. It is a way Native America today. I was appointed by Emory In 2013, I was fortunate enough government, state governments, determination and the role that to avoid having to hire lawyers Sekaquaptewa, who was chief to be asked to become a visiting and tribal governments. There and an alternative to going justice at the time, to serve as scholar. Then, I decided to are 566 federally recognized YOUR GENEROSITY MADE $7 MILLION to court, in hopes of reaching a justice pro tem. I am now apply to become a research tribes in the United States, This year, the American Bar Endowment IN GRANTS POSSIBLE FOR 2017 resolutions that are more lasting appointed to a four year term professor, and I was so delighted and countless more that granted over $3.4 million to the American and efficient. as an associate justice. The to be offered a spot. If you do currently do not have relations GET PRBar FoundationOTECTION. to support researchGIVE BACK. work in law and sociolegal with the federal government. designed to expand knowledge and responsibilities of the Hopi To learn more about The thank advance justice. This grant was made thank VISIT ABENDOWMENT.ORG, OR CALL US Appellate Court is to review Nakwatsvewat Institutute, scholarship, there are very few Despite these numbers, Native you possible thanks to donated dividends you ABE INSUREDS TOLL-FREE AT 1-800-621-8981. ABE INSUREDS decisions by the lower Hopi please visit nakwatsvewat.org. places that have the resources American peoples, their laws from our generous ABE insureds.1 We can’t thank you enough. $3. Million $3. Million courts for any judicial errors and the connections to both and governance remain largely awarded to awarded to the profession and the academy invisible to non-Natives. Often and to hear any appeals on Lastly, I know you have been YOUR GENEROSITY MADE VISIT ABENDOWMENT.ORG, OR CALL US AMERICAN BAR FUND FOR JUSTICE decisions made by the lower involved with the American that the ABF has and always what is known of Native $7 MILLION IN GRANTS TOLL-FREE AT 1-800-621-8981. FOUNDATION AND EDUCATION POSSIBLE FOR 2017 courts. It is truly an honor to Bar Foundation for a few had. This makes the ABF a key America is a dramatically $3 3,815 have been asked to serve in this years, first as a visiting resource and touchstone for oversimplified picture. Native awarded in 1 Dividends are not guaranteed. OPPORTUNITY GRANTS capacity and it continues to scholar and now a research anyone working in and with nations are seen as either © 2017 ABE, All Rights Reserved. professor. Why did you decide

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