Reference from Coast to Coast: Researching Native American Legal IssuesBy Jan Bissett and Margi Heinen, Published on February 12, 2007
Ronnie Tallman was granted
conscientious objector status at the end of January 2007. This news
sparks our interest not only because of the political implications but
because of the situation it presents to legal researchers. Mr. Tallman's
Navajo religious beliefs conflict with his United States military
obligations. Reading of his legal battles reminds us of the potential
difficulties with and complexity of researching Native American legal
issues. Indeed, what do we call this research? Terms such as Native
American law, American Indian law and Tribal Codes research may all
describe the body of legal materials that the researcher needs to
investigate conflicts between the United States and its indigenous or
aboriginal peoples. While there are political and ethnic sensitivities
attached to each of the terms above (see
http://www.infoplease.com/spot/aihmterms.html for example), we’d
like to stress the importance of understanding how to begin to research
such issues. Whether it be gaming, land, taxation or something else
altogether, at sometime you are likely to run into an issue concerning
American Indian law and there are research guides, articles and
government websites that can help you understand how research in this
area is structured.
An initial question could be whose government? We may immediately think of United States government websites, and some of those may help us out. However, when researching in this area remember that Tribes are governments also. Because legal research concerning tribal issues involves the sovereign tribe v. the sovereign United States you will often find yourself looking for treaties and compacts rather than statutes. A website that may help you see this relationship in context is the Tribal Court Clearinghouse. By clicking on the headings Tribal Law, Federal Law and State Law, you can drill down into information on taxation, gaming, law enforcement and other topics within only the Tribal system, or in the interrelationship of Tribal and State/Federal law. This organization also has helpful links to full text Tribal Codes and Constitutions posted by various entities. Digitization projects from two universities provide the text of treaties between American Indian tribes and the United States: The University of Nebraska's Early Recognized Treaties with American Indian Nations and the Oklahoma State University's Charles J. Kappler's Indian Affairs: Laws and Treaties The United States Department of the Interior and the Bureau of Indian Affairs may provide materials of interest. The U.S. National Archives and Records Administration provides some guidance to genealogists in its Wantabes and Outalucks: Searching for Indian Ancestors in Federal Records and Indians/Native Americans.
For the novice attempting to get a look at the resources available in the area of American Indian Law, the first step may be to examine research guides from the Library of Congress (LOC) as well our colleagues in academic law or specialized libraries. LOC's Guide to Law Online: United States Native American Peoples - Indians of North America provides links to tribal codes, the United States Code, and commentary as well as agencies and organizations. University of Tulsa has a helpful legal research guide for Native American Law. It includes a list of important treatises as well as primary sources and case law. Similarly, the University of Kansas provides excellent links and a list of resources at http://www.law.ku.edu/library/research/guides/tribal.shtml as does the Harvard Law School's Tribal Law: Primary Sources These are just a few examples of research guides from our academic colleagues. You can identify additional research guides using Cornell's Legal Research Engine or the University of Akron Law School's Law Scout. Keep in mind that "non-legal" research guides may also be helpful, such as the Library Research Guide for American Indian Studies from Cornell's Olin & Uris Libraries. It's also important to note that while these guides discuss materials in particular libraries, they also help to acquaint you with titles and sources available in this subject area.
In Colorado we are fortunate to have the National Indian Law Library which is a public law library dedicated to Indian and Tribal law. This library and its fantastic staff have made many materials available to the public, and their website is a great place to begin your research. Especially helpful is the two part article, Basic Indian Law Research Tips providing practical advice on researching Indian law and compacts. A guide to the library, its collection and services is addressed in a Southwestern Association of Law Libraries Bulletin Roadmap to the National Indian Law Library's Tribal Code Collection, 33 (No. 3) SWALL Bulletin, Spring 2003. This library’s website also provides links to numerous Tribal online sources. If you are still bewildered after hours of Indian legal research, the librarians here may be able to help.
In addition to the tribal resources, research guides and the National Indian Law Library, consider other bibliographic sources such as HeinOnline and FirstSearch. If you are a subscriber to HeinOnline (and it is a great resource at very reasonable price), you have access to Kappler’s Indian Affairs: Laws and Treaties as well as bibliographic information and lists of Indian Treaties from the Committee on Interior and Insular Affairs, House of Representatives, 1964. In addition, the depth of the law journal collection on HeinOnline enabled us to find articles from 1880 to 2005 dealing with American Indian treaties and legal issues. FirstSearch can help you identify titles available in print or online and WilsonSelectPlus provides full-text coverage of several "nonlegal" journals that may be helpful in your research. The Law Library Journal has published articles and reviews of reference materials concerning American Indians, and Legal Reference Services Quarterly has published research guides, pathfinders and bibliographies on specific issues such as gaming, Native Hawaiians, tribal government and religious freedom. This material and more can be found using an index to legal periodicals. And remember, you may have to use various subjects or varying spellings of tribal names.