Oklahoma Bar Association

These prophetic words were spoken by Chief Dan George, Hereditary Chief of the Coast Salish Tribe,1 to an assembled group in 1969. He spoke eloquently about how he saw education of tribal members and the law as being the savior of Indian nations. About that same time period, several Oklahoma Indian attorneys, including F. Browning Pipestem (Otoe/Osage), Kirke Kickingbird (Kiowa), Charles Tate (Chickasaw), John Ghostbear (Cherokee/Oglala Sioux), and several others were graduating from Oklahoma law schools. These individuals, among others, were to later make the very impact that Chief Dan George envisioned, using the law as a tool to ensure tribal survival.

Like the thunderbird, the sovereignty of American Indian nations in the state of Oklahoma has, over the past 20 years, risen again out of the remnants of the once strong tribal governments that ruled in the Indian Territory in the 1800s and on this continent for thousands of years before “discovery” by Europeans. The re-birth of modern tribal sovereignty is largely a result of the efforts of American Indian attorneys, most of whom graduated from law school from the late 1960s to the present. While the rights of Indian tribes to “make their own laws and be governed by them”2 may for some appear to be a recent phenomenon, in actuality such authority has deep seated precedents and legal underpinnings from before the beginning of the federal republic. A significant challenge in educating people about the modern exercise of tribal sovereignty is the inaccurate belief that Indian governmental power, like the dinosaur or carrier pigeon, had become extinct or somehow ceased to exist after Columbus arrived or after the American colonies and states were organized.

Many of today’s legal practitioners forget that Oklahoma’s legal traditions are rooted in the histories of the Indian nations that long pre-dated the state government. The geographic divisions in the state, the various federal judicial districts, the land tenure, and many other aspects of the state’s legal history are both directly and indirectly related to the Indian tribal governments and societies that were functioning long before the concept of, or even the word “Oklahoma” ever surfaced.

The jurisprudential cornerstones of Indian law were formed with the Cherokee Nation’s struggle over jurisdiction and authority with Georgia state officials in the famous Cherokee Nation v. Georgia3 and Worcester v. Georgia4 cases heard before the U.S. Supreme Court. Yet, not until the efforts of various Indian attorneys in the 1980s and 1990s, was the right given to the Cherokee Nation, and other tribes in Eastern Oklahoma, to even have a tribal court system confirmed. The role that American Indian leaders, judges, and lawyers have had in the history of Oklahoma is a rich tradition... one that has escaped the view of most jurists and scholars. While this article is not a comprehensive examination of their contributions, it does give an overview of the role of these individuals in the development of this state’s legal systems.

Legal practice among Oklahoma Indian tribes began long before statehood, or even before the Land Run of 1889. Re-located in the western part of Oklahoma from their traditional homelands in Colorado, Wyoming, and Montana, the Cheyenne had a proud legal tradition that is most notably illustrated in The Cheyenne Way, a book co-authored by Professor Karl N. Llelwellyn and E. Hoebel. For instance, Professor Llewellyn gives an account of a horse theft that occurred in Oklahoma in the 1800s.5 In this case, the theft is perpetrated by a Southern Cheyenne named Pawnee.6 As a result of this property theft, Pawnee was punished by soldiers of his tribe and essentially sentenced to remain on the prairie alone, without a horse or food.7 Later he was found by a Cheyenne chief named High Backed Wolf who fed him and helped him to regain his strength before questioning him.8 What follows can be compared to a sworn deposition both in form and majesty:

After Pawnee admitted his actions, High Backed Wolf admonished him and also informed him of the law. “You know how we Cheyennes try to live. You know how we hunt, how we go to war:... Stop stealing.”10 While this may seem to some to be a simple lecture, it mirrors similar admonishments which a judge could very well direct to a defendant in any of Oklahoma’s courtrooms today: stop stealing or face the consequences.

In the southeastern part of the United States, the Cherokee also had early legal traditions well before arriving in the Indian Territory in the 1830s following their removal during the “Trail of Tears.” In his book, Fire and the Spirits, Professor Rennard Strickland states that early Cherokee law was “the earthly representation of a divine spirit order.”11

Furthermore, Cherokee law was intertwined with the traditional tribal religion.12 In early Cherokee times, the law was recited by a priest at an annual celebration wearing “the wings of a raven in his hair.”13 Violation of the law could mean “being brought before a tribal group much like a court, composed of the seven clans [of the Cherokee].”14 If there was a legal violation that “offended community expectations,” then this violation would be heard in village courts.15 Professor Strickland gives an account of an early Cherokee trial as follows.

The same phenomena of Indian defendants appearing in today’s tribal courts, waiving an attorney and essentially confessing their conduct before a judge has sometimes puzzled non-Indian attorneys or outsiders to the local tribal community. This practice, which has been observed by many modern day tribal judges, may have its origin in these long standing and deep rooted traditions of accepting responsibility for one’s behavior or wrongdoing to get back into “harmony” with the local tribal community. Indeed, fully exercising one’s “rights” by feigning innocence to force the sovereign to prove guilt, has been perceived by some defendants to be counterintuitive to their desire to willingly accept responsibility for their actions and to get the matter “behind them” so that they can continue on with their lives in the tribal community. Ironically, coming full circle, modern mediation and “restorative justice” advocates are now looking back to these ancient systems such as the traditional Navajo Peacemaker Courts and other similar forums as a viable alternative to the expensive and divisive adversary justice system operating in so many jurisdictions.

As contact continued with European settlers in the early 1800s, the importance of traditional Cherokee religion on the Cherokee law began to drift away.17 The Cherokees were in the process of modernization after the Revolutionary War and those who led the Cherokees on this path were largely members of the legal profession. As Professor Strickland states, “A group of bright young men trained in the law were drawn to the management of the business of the Nation. These men believed that survival lay in acculturation rather than resistance to change.”18 By 1820, the Cherokee Nation was divided into judicial districts and provisions were made for “district courts, judges, and officers.”19 Two years later, Cherokee courts were required to “keep records of proceedings of all causes, evidence, and decisions. “20 In 1829, construction of the Cherokee Nation Supreme Court building began.21

Following the Trail of Tears removal to the west, the Cherokees established a Supreme Court in the Indian Territory in 1839, pursuant to Article V of their new constitution.22 Some of the early leaders of the Cherokee Supreme Court were Justice John Martin and Justice Jesse Bushyhead.23 According to Professor Strickland, Justice Martin “set a pattern of excellence in devotion, education, and personal training which few who followed were able to match.”24 Justice Bushyhead arrived at the Supreme Court from the Christian ministry.25 It was said in 1841 that Justice Bushyhead was “universally loved and respected. His mere opinion in the Nation has great weight, and his persuasion on any subject can win the people to his views. He is a fairminded, sensible man and is the most successful to the native preachers.”26 In 1845, the Cherokee Nation Supreme Court House was built,27 and it still stands today in Tahlequah, Oklahoma. It is interesting to note that many of the practicing attorneys in the Cherokee Nation did not desire to become a judge because judges were not allowed to practice in tribal courts and were paid relatively poorly.28

Becoming a member of the Cherokee Nation bar in the mid to late 19th century consisted of paying a fee and reciting the oath.29 According to Professor Strickland, there were several types of Cherokee Nation bar members. First, there was the “elite” category that consisted of Cherokee Nation attorneys “who practiced before the Cherokee Supreme Court and in the Federal District Court.”30 These lawyers consisted of those who represented the tribe before “congressional committees and were in the employment of railroads.”31 Another level of lawyers were the “Cherokee-language bar.”32 These lawyers “appeared only before the circuit courts and represented the full bloods.”33 Another group of lawyers were called the “travelling Indian lawyer.”34 These attorneys “went from court to court, picking up business at every stop.”35 The law practice of Stand Watie illustrates the part-time practitioner. His practice consisted of “the routine collection of debts, drawing of agreements, and general commercial considerations....”36 Not unlike these early practitioners, the tradition of the “traveling Indian lawyer” continues today with many modern attorneys serving as a judge for one tribe, a prosecutor for another, and a general practitioner in the state and federal court systems - a practice made possible and facilitated by the state’s modern highway and turnpike system.

For the plains Indian nations located in the western part of Indian raditional anglo-American courts, but the judges that were appointed included prominent tribal leaders of the times. Indeed, one of the first federally appointed Indian judicial officials from the western part of the Indian Territory was Comanche Chief Quanah Parker. Chief Parker served as a judge for the Court of Indian Offenses for the Kiowa, Comanche, and Apache Reservation when the court was formed in 1886. Several other prominent leaders served as judges of this court, including Kiowa Chief Lone Wolf, and although appointed by the local Indian agents, these judges dispensed justice that was familiar to Indians of the time. For example, an Indian judge was likely to punish a wrongdoer by making him pay remuneration consisting of “a well broken pony” to the winning side in a dispute.

Practice in the Cherokee courts continued throughout the 19th century. A newspaper in 1882 reported on the number of attorneys at the courthouse as “lawyers on hand were more numerous than clients ... .”37 However, the role of tribal courts within the Cherokee Nation changed significantly at the end of the century. In the 1890s and early 1900s, the Dawes Commission acted to eliminate the “national or tribal title” to the land of the various Indian nations.38 During this time, Congress passed the Act of June 28, 1898, known at the Curtis Act,39 which, among other things, brought the Cherokee tribal courts to an end.40 Professor Strickland gives the following account of the twilight of Cherokee Tribal practice.

So began the end of Cherokee Tribal Court practice. For almost 80 years, this judicial hiatus continued even though in 1936, the Cherokees were allowed to continue tribal self-government “not expressly extinguished by Congress” under the Oklahoma Indian Welfare Act.42

In the western Indian territory, after the reservations were opened up to non-Indian homesteading and non-Indian settlers staked their claims to most of the reservation lands, over time the funding for the Courts of Indian Offenses was eliminated from the Indian agency budgets. The Courts of Indian Offenses were never formally dissolved, but rather ceased to function due to the turmoil and upheaval after statehood and the establishment of counties and towns in the various reservation areas. So began the long period of ambiguity regarding official tribal powers over the remaining allotted Indian lands held by individuals and pockets of tribal land remaining in the state.

The assumption that, after Oklahoma’s admission to the union in 1907, the sovereignty or authority of tribal nations in the state had been legislated away or somehow evaporated on its own continued to be the belief of many people up until the 1970s. Indeed, one seminal law review article described the inaccurate assumption that the powers of Oklahoma Indian tribes were different from other Indian nations as a “mythology” that had developed over the decades. Indian attorneys F. Browning Pipestem and G. William Rice outlined how tribal powers from pre-statehood days survived relatively intact, despite the great loss of tribal lands through the process of allotment and the opening of most of the original Indian Territory reservations to homesteading, which left only small pockets of Indian land scattered over most of the state.

One of the critical events in the re-birth of tribal sovereignty took place following an Indian vs. Indian murder that occurred in Caddo County on one of the remaining Indian allotments still held in trust status. In that case, Judge Daugherty of the United States Court for the Western District of Oklahoma, concluded that the offense was one which did occur in Indian country and under the Major Crimes Act, 18 U.S.C. §1153, was a matter of exclusive federal jurisdiction. United States v. Littlechief, No. 76-207-D (W.D. Okla. Nov. 7, 1977), followed and re-printed in State v. Littlechief, 573 P.2d 263 (Okla. Crim. App. 1978). Again, Oklahoma Indian attorney F. Browning Pipestem provided the court the critical briefing which finally set the legal record straight on the issue of tribal jurisdiction over the millions of acres of remaining allotments and tribal trust lands in western Oklahoma. Shortly after the Littlechief decision, because there was a lack of state jurisdiction over misdemeanor offenses committed by Indians against Indians, Indian attorneys and federal officials worked quickly to put a judicial system in place. Ironically, the regulations for the original Court of Indian Offenses that existed prior to statehood still remained on the books, and in 1979 the Anadarko court was re-established after some 70 years of being dormant.

The first Oklahoma Court of Indian Offenses was established with four divisions, at Anadarko, Concho, Pawnee, and Shawnee, providing law enforcement and judicial services for 19 Indian nations in the western half of the state. Indian attorneys including Philip Lujan (Kiowa/Taos), Ryland Rivas (Comanche), Vincent Knight (Ponca), Browning Pipestem (Otoe/Osage), G. William Rice (Ketoowah Cherokee), Rebecca Cryer (Citizen Potawatomi), Patricia Johnson (Kiowa), Charles “Sonny” Chibitty, Jr. (Comanche) and George Tah-Bone, Jr. (Kiowa) provided the backbone of court operation in the early years serving as judges, prosecutors, and public defenders in the fledgling court system. The Court of Indian Offenses, which relied on the legal provisions of the Code of Federal Regulations, or “CFR,” was often referred to as the “CFR Court.” In addition, lay advocates and paralegals also played a critical role in the early operation of the court, and contributions of persons such as Frances Oheltoint (Kiowa), Henry Ware (Kiowa) and Howard Goodbear (Cheyenne-Arapaho), should not be overlooked. Students also assisted in the operation of the court such as Arvo Mikkanen (Kiowa/Comanche) who served as an assistant to the prosecutor at the age of 20 and later as judge when he was 27, and Steven Jon Moss (Caddo) who served as a judge while he was still a third year law student at Oklahoma City University Law School.

Ultimately, the Courts of Indian Offenses for a number of tribes were phased out, as tribal courts were established for tribes that had sufficient funding for operations, beginning with the Pawnee Tribe in the 1980s. Following the Littlechief case, Indian attorneys such as Susan Work (Choctaw) litigated the legal status of tribal courts in eastern Oklahoma resulting in the decision of Muskogee Creek Nation v. Hodel upholding the rights of those tribes in the eastern part of the state to have their judicial forums re-established.

Indian Attorneys’ Role in Providing Services to the Public and Catalysts for the Development of Modern Oklahoma Indian Law

One of the most significant forces in the development of Indian law in Oklahoma, as well as a vehicle to provide services to tribal members, has been the Oklahoma Indian Legal Services, or OILS, which began in the early 1980s. OILS serves low income members and children of Native American tribes throughout the state. OILS has played an important role in the development of Indian law in Oklahoma by not only bringing significant cases such as Housing Authority of the Seminole Nation v. Harjo, 790 P.2d 1098 (1990), but also by being a presence in the tribal communities for individual clients, as well as being regular litigators in the tribal courts. Many of today’s leaders in the Indian legal field currently either work, or have worked, as a staff attorney for OILS or served on its board of directors. The early executive directors of OILS such as Vincent Knight (Ponca), Susan Work (Choctaw) and Leah Harjo Ware (Muscogee (Creek) Nation/Yuchi), litigated important cases and forged a viable and effective agency that has strengthened the operation of tribal judicial systems.

Other significant milestones in the development of Indian law in Oklahoma include the founding of the Sovereignty Symposium in 1988, originally a collaboration between a non-profit organization named Arrow Inc., the National Tribal Court Clerk’s Association and the Oklahoma Indian Affairs Commission. The Oklahoma Supreme Court, primarily under the leadership of Justice Yvonne Kauger, picked up the ball and formalized the Sovereignty Symposium into an annual national conference to provide a dialog between federal, tribal and state officials about tribal sovereignty. Shortly thereafter, in 1989, the Oklahoma Indian Bar Association (OIBA) was organized, and consists of Indian attorneys, non-Indian attorneys who practice Indian law, court clerks, paralegals and law students with an interest in federal Indian law. The OIBA remains one of the largest statewide organizations of Indian attorneys in the United States. Within the next five years, recognizing the importance of Indian law in everyday practice, the Oklahoma Bar Association established a separate section on Indian law.

The three law schools in Oklahoma have also been instrumental in the development of Indian law, and a new generation of Indian law practitioners, both Indian and non-Indian. In 1988, under the leadership of then University President Jerry Walker, Oklahoma City University Law School opened the Native American Legal Resource Center, with Kirke Kickingbird (Kiowa) as director. The Center sponsored numerous seminars on Indian law, established a clinical program that has provided law students with credits for working in tribal courts, Oklahoma Indian Legal Services and other agencies such as the Oklahoma County Public Defender’s Office and the U.S. Attorney’s Office. Additionally, through the efforts of OCU Law School Professor Dennis Arrow, as editor, and Arvo Mikkanen, as associate editor, the opinions of the tribal courts in the state were collected, compiled and published into what has become the Oklahoma Tribal Court Reports, which is now included on Westlaw and serves a model publication for other tribal courts throughout the nation.

In 1990, Professor Rennard Strickland, of Osage and Cherokee heritage, founded the Center for the Study of American Indian Law and Policy at the University of Oklahoma Law School in Norman. The purpose of the center is to “provide counsel to tribal, state, and national policymakers as well as a forum for the interdisciplinary discussion and resolution of problems facing native communities.” The current director is law Professor Lindsay G. Robertson, who also serves as Special Counsel on Indian Affairs to the governor. The OU College of Law has also served as the home to the American Indian Law Review. Founded in 1973, the journal serves as a “forum for the presentation and analysis of developments in Indian law and Indian affairs generally.” Additionally, the OU College of law co-sponsors the Native American Constitution and Law Digitization Project, which brings Indian constitutions and codes to the public through the internet.

The University of Tulsa College of Law, located within the traditional boundaries of the Muscogee Creek Nation, has also placed a significant emphasis on Indian law. Beginning in 1990 it was the first law school in the nation to offer an Indian law certificate program and is one of a few law schools in the United States that offers an LL.M. in American Indian and Indigenous law. The law school’s Native American Law Center began in the early 1990s and the center’s faculty publish and speak regularly in their areas of specialization, and most are involved in the revision of Felix S. Cohen’s Handbook of Federal Indian law, the premier legal treatise in the field. Like OCU’s Native American Legal Assistance Program, TU allows students to earn academic credit for working in tribal legal programs such as the Muscogee (Creek) Nation Legal Services Clinic and for coursework in the Geneva Institute of Indigenous Peoples Law.

Today, Oklahoma is home to 39 tribal governments that have formal federal recognition. Many of these tribes have functioning tribal courts, with their own codes of laws, admission requirements, standards of ethical conduct, and reported opinions. Through the efforts of Indian attorneys in the state, Oklahoma tribes have re-emerged as viable and important catalysts for economic development, employment and growth in the state, contributing an estimated $10 billion to the Oklahoma economy annually.43 Moreover, by providing services, resources, and employment to the Indian population and others, tribal governments have been important partners to state and local governments. Accordingly, the importance of tribal sovereignty and the necessary understanding of tribal courts will continue to increase for the average practitioner.44

Indian lawyers, both past and present, represent an important part of, as well as continuation of, one of Oklahoma’s oldest legal traditions. To properly recognize their current achievements, it is important to remember the path these individuals have traveled from their ancestors’ council houses, longhouses, lodges and tipis, to the modern tribal courthouses, council chambers and boardrooms of today. Not unlike the excitement connected with the 100th year celebration of the Oklahoma Bar Association, speaking for most Oklahoma Indian attorneys we echo Dan George’s words... for with the continued survival of tribal sovereignty, “so shall the next hundred years be the greatest in the proud history of our tribes and nations.”

Dana Jim (Cherokee/Navajo) is a private practitioner in Shawnee and serves as Oklahoma Indian Bar Association secretary.

Arvo Q. Mikkanen (Kiowa/Comanche) is assistant U.S. attorney and special assistant for Tribal Relations, U.S. Attorney’s Office, Western District of Oklahoma. He serves as Oklahoma Indian Bar Association president.

1. Chief Dan George is probably best known for his writing and acting careers. His most famous role was the aging Chief “Old Lodgeskins”, opposite Dustin Hoffman, in “Little Big Man,” for which he received an Academy Award nomination as Best Supporting Actor in 1970.
2. Williams v. Lee, 358 U.S. 217 (1959).
3. Cherokee Nation v. Georgia, ____ U.S. _____ (18____).
4. Worcester v. Georgia, 31 U.S. 515 (1832)
5. See K. Llewellyn & E. Hoebel, The Cheyenne Way 6-9 (Norman: University of Oklahoma Press, 1983).
6. Id. at 6.
7. Id. at 7.
8. Id. at 7.
9. Id. at 7-8.
10. Id. at 8.
11. See R. Strickland, Fire and the Spirits 11 (Norman: University of Oklahoma Press, 1975).
12. Id. at 12.
13. Id. at 11.
14. Id. at 24.
15. Id. at 25.
16. Id.
17. Id. at 54.
18. Id. at 120.
19. Id. at 207.
20. Id.
21. Id.
22. History of the Cherokee Indians, Emmet Starr, p. 292.
23. History of the Cherokee Indians, Emmet Starr, p. 292.
24. See Strickland at 156.
25. Id.
26. See C. West, Tahlequah and the Cherokee Nation 1841-1941 (Muskogee: Muskogee Publishing Co., 1978).
27. Id. at 21.
28. See Strickland at 156.
29. Id. at 123-124.
30. Id. at 123.
31. Id.
32. Id.
33. Id.
34. Id.
35. Id.
36. Id. at 124.
37. Id. at 141.
38. See F. Prucha, the Great Father 258 (Lincoln and Lincoln: University of Nebraska Press, 1986)
39. See F. Cohen, Handbook of Federal Indian Law 782 (1982 ed.)
40. Id.
41. See Strickland at 175.
42. See Cohen at 783.
43. State of Oklahoma - Year 2003 Ed., Oklahoma Indian Nations Information Handbook, p. 18.
44. Territory, the federal government established systems of justice that were modeled after