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Sovereign counsel

For professor Richard Monette, Indian law is his life’s work

January 5, 2015

More than 300 Native American reservations are found within the United States, and Richard Monette has been to them all. For a man as passionate about tribal rights as Monette, it’s just part of the job.

Monette grew up on a reservation in North Dakota, a member of the Turtle Mountain Band of Chippewa.

His passion for justice has stuck with him his entire life. He has worked in Washington, D.C., as a staff attorney for the Senate Committee on Indian Affairs and as the director of legislation for the Bureau of Indian Affairs. He was twice elected to serve as chairman and CEO of the Turtle Mountain Band of Chippewa.

Now, he teaches various native law courses at UW-Madison and acts as the faculty advisor for the Great Lakes Indian Law Center (GLILC), an initiative of the Wisconsin Law School that provides legal assistance and student training on tribal matters through externships in Wisconsin’s indigenous communities. In addition, he often spends his free time assisting tribes around the country.

Drawing on these experiences, Monette shared his insight about tribal rights and the impact of GLILC.

In Common: What are some unique legal questions faced by tribal communities?

Monette: The most unique legal questions are regarding the most important cornerstones of their political existence: that is that we view them more as individuals, maybe even as corporations, than we do as governments and as societies. We often refer to their reservations not as territories but as property. So if they lost ownership of a piece of property, they would also lose territory, even though they shouldn’t.

UW-Madison professor Richard Monette
Richard Monette

The second component is the “peoples” part. This is perhaps the thorniest issue they face. Their peoples, like all peoples, have and want to have a civic identity. However, America has imposed on them an American civic identity unilaterally. We are also in the process of imposing on them a civic identity with the state their reservation happens to be in, and of course they have a civic identity with their own tribe. That all sounds really open-armed and inclusive, but the problem is that civic identity is not some esoteric concept – it’s a hugely practical application.

Your civic identity means that you will conform to the laws and more importantly to the norms and values, the principles, the beliefs, the customs and the traditions that those laws are built upon. And generally the tribes have different norms and values than the states have, so when those norms and values conflict, quite often the laws conflict.

When the laws that you live by conflict, you can have a rather cacophonous civic identity. In fact, you yourself and every individual can be terribly conflicted. This is an obvious problem today for Native Americans. I think we have not figured out just how difficult that is for them.

Now, based on those two factors, we get a plethora of more minor issues. All of the conflicts between various interests, val¬ues and ideas get entangled and the result is a hugely complex picture.

I wish there was an easy answer. I always want to be careful, because when you make something sound too complex, it can sound like a lost cause. And obviously I don’t think this is a lost cause. But like everything, it requires a bit of harmonizing, and not just from the native community, but from the non-native community as well. 

What are the principal issues of sovereignty for tribes?

First and foremost, you’ve got to use it. Sovereignty isn’t some¬thing you have in your back pocket; it’s something you use, something you do. I’m a former tribal leader, an elected leader, so I’m not advocating abusing sovereignty. But I think I have enough standing among tribes and their leaders to say that tribes don’t always “do” sovereignty as much as they should.

That’s probably the biggest issue. But the second biggest issue is to get the United States of America and every one of its citizens to be informed and to be educated, including of their own sovereignty. In some ways the Native sovereignty movement re-educated and re-energized the state and local sovereignty movements in America. But it’s not the Native Americans’ job to educate America and Americans about sovereignty. If Americans truly understand their own sovereignty, then they can readily appreciate what Native Americans fight for.

There are a lot of pressing issues with Native sovereignty, but I’ve come to the conclusion that all peoples ultimately just want to determine their own culture. I’ve also come to the conclusion that you can’t really determine your own culture if you don’t have a significant measure of political autonomy. And you can’t really have political autonomy without recognition and respect for your territory and peoples.

"There are a lot of
pressing issues with
Native sovereignty, but
I’ve come to the conclusion
that all peoples ultimately
just want to determine
their own culture."

So teaching Americans, getting them to be open-minded enough to want to learn, is Native sovereignty’s biggest issue right now.

Why do you think these issues remain?

These issues persist because guilt is a heavy, heavy burden. Guilt makes you want to forget. Guilt makes you want to ignore. Guilt makes you not want to get involved. Guilt makes you want to convince yourself that we’ve evolved past that already, so get over it.

Nobody wants to be guilty and everybody hates the source of their guilt. Natives didn’t ask to be the source of America’s guilt.

Tell us about the Great Lakes Indian Law Center.

We send students to work on the reservations. Our students have done a variety of legal work for the tribes in Wisconsin and in a few instances in reservations in other states. Students have drafted opinions and memos for the tribal courts. They’ve drafted some laws and regulations for some of the tribes. They do legal research on issues facing the tribes.

Our students assisted the Ho-Chunk people and their attorney with drafting the new constitution for the Ho-Chunk Nation in the ‘90s. The tribe itself decided what to put in it, of course, but the students drafted and offered technical assistance in the process. It’s widely considered to be one of the best, most modern and progressive constitutions in Indian Country.

How do the students respond to the training?

"When I was starting
law school, you could
almost count the Indian
lawyers on the digits on
your hands and feet. Now,
there are around 3,000 in
the country representing
tribes in all capacities."

Most of them have been pleased with the opportunity to get an education with a different cultural perspective, without leaving the region. A lot of them were very appreciative of that. After graduating a good deal of them have gotten related jobs: Assistant Secretary for Indian Affairs, which is the second-highest position at the Department of the Interior; Deputy Assistant Secretary for Indian Affairs; director of the National Indian Gaming Association; Chief Counsel of the Senate Committee on Indian Affairs; staff attorneys for the National Indian Gaming Commission; practicing in the Solicitor’s Office in the Department of the Interior; and there are a bunch of former students practicing directly with the tribes. Our program has had a huge impact in “Indian law” at all levels. 

What is the most rewarding part of your work?

When a tribe will take a small step proactively to exercise its sovereignty and I can help in any small way so that their people live by it and it succeeds. I can’t have a bigger reward than that.

Is there anything else you would like to note?

Like a lot of successful things, this is about a huge team. When I was starting law school, you could almost count the Indian lawyers on the digits on your hands and feet. Now, there are around 3,000 in the country representing tribes in all capacities. It’s a huge team and everybody has a meaningful role to play.

Melanie Ginsburg is a senior majoring in journalism.