2021 ABA Judicial Clerkship Program Examines Indian Law: Reflections from Participants

Does a police officer of an Indian tribe have authority to detain temporarily and search a non-Indian on a public right-of-way within a reservation based on a potential violation of state or federal law?

This issue was the subject of the “research exercise” that engaged 91 law students and 32 judges at the 21^st annual ABA Judicial Clerkship Program (JCP) held online February 18-20, 2021. The research exercise provided a window on an important area of American law unfamiliar to many of the participants, students and judges alike.

The JCP was launched in 2001 by the ABA’s Judicial Division, its Commission on Racial and Ethnic Diversity, and LEXIS-NEXIS to try to increase the number of lawyers from underrepresented backgrounds serving as judicial clerks. In 2007, the ABA Council for Diversity in the Educational Pipeline assumed the responsibilities initially undertaken by the Commission.

In the ensuing years, the President and other top officials of the ABA have welcomed to the annual event hundreds of students and judges from around the country who work closely together for two days through panel discussions, an extensive research exercise, and an appellate oral argument, thereby introducing and then reinforcing reasons for pursuing a judicial clerkship. Many of the students have gone on to clerk.

The most ambitious part of JCP is the research exercise, structured to replicate the judge-clerk working relationship. Small groups of students and judges work together researching and discussing a closely-watched case then-pending before the Supreme Court. In doing their research, the students use the computers and software provided by LEXIS.  

Reflections of a Participating Judge –

Chief Justice Meredith Drent: The JCP experience is like no other, even as a judge. The opportunity to interact with bright and engaging students about the work we do for our communities can forge a path to the judiciary for students from many backgrounds and communities—students who may not have previously considered judging as a career.  Increasing interest in the bench goes hand in hand with increasing opportunities to the bench, which is why judicial participation is such a worthwhile experience. 

I was selected to participate in the JCP by the American Indian Law Center, the oldest existing Native-managed and Native-operated legal and public policy organization in the country. The AILC selects tribal court judges from around the country to participate in the program – particularly those who have had the opportunity to serve as judicial law clerks or work with judicial law clerks. Despite the existence of over 200 tribal courts throughout the United States, these justice systems still struggle with visibility.  This lack of visibility is compounded by the scant numbers of Native Americans serving on the federal and the state judiciary.  The JCP is our opportunity to increase those numbers.

The AILC also hosts the Pre-Law Summer Institute for American Indians and Alaska Natives, which is an intensive two-month program that prepares incoming Native law students for the rigors of law school.  Alumni of this program are eligible to apply for the JCP regardless of which law school they ultimately attend. By giving these students insight into the judiciary, particularly when it includes courts that represent their own tribal communities, the JCP can spark their interest in profound and meaningful ways. 

Imagine my enthusiasm upon reading the “research exercise” crafted for JCP this year which was a problem that introduced students to Indian law, the complex legal framework of Indian tribes and interjurisdictional relations. I have spent my legal career representing the interests of Indian tribes and tribal organizations and much of that as a tribal judge at both the trial and appellate levels.  I cannot overstate the impact of seeing a research problem that introduced this field to the students and judges who attended the JCP this year. What a problem it was, bringing in the elements of the United States v. Cooley case before the U.S. Supreme Court and a Fourth Amendment search and seizure dilemma for the participants. Indeed, based on my experience, the legal issue presented in U.S. v. Cooley is a good example of what happens when a traffic stop by a tribal police officer meets the minefield of Indian law jurisdictional precedent. 

I was the only judge assigned to work with the students – I quickly came to think of them as clerks – in my group. They were accomplished, interested, and inquisitive. We enjoyed a brief introduction to Indian law and discussed the way to research Indian law issues. As the clerks cited their research, we took the time to the discuss some of the nuances of jurisdiction and law enforcement on reservation land. The clerks did much of the heavy lifting, engaging each other to fine-tune the issues to present. 

Seeing the students research and discuss Indian law and its jurisdictional idiosyncrasies reminded me why judicial law clerks are important to our judicial reasoning process; they bring a fresh point of view to the issues that we come across throughout own careers. There is an opportunity for us to gain a new perspective, particularly in a field like Indian law, which can be fraught with contradictions so that even the most dedicated of judges become dizzied by its parameters. Offering both students and judges a snapshot of the Indian law universe was also an opportunity to illustrate the unique legal and political status of Indian tribes and their relationship to local, state, and federal governments. It gave our participants a breadth of experience they may not find in any other forum and a unique legal issue they can take with them to the next step in their journeys. 

Reflections of a Participating Student –

Eric Williams: I am a 3L at South Texas College of Law Houston and was a student participant in the 2021 JCP. Like many students who participate in the JCP, I am a first-generation law school student from a racially diverse background. Before law school, I did not have any meaningful exposure to what a judicial clerkship was, and even after starting school, the process of becoming a judicial clerk was still a bit of a mystery.

The JCP provided a tremendous opportunity for students to work closely with federal, state, and administrative judges and lawyers while offering a first-hand glimpse into the working relationship between a judge and their judicial clerk. Additionally, the students in the program were able to elicit some sage advice from the participating judges related to applying for judicial clerkships, the expectations of a judicial clerk, and career paths. Although many of the jurists involved in the program had varying styles and personalities, there was one common theme throughout the program—collaboration. Each judge that spoke during a panel discussion or a small group session stressed the importance of working collaboratively with their clerks to resolve cases. This insight was particularly intriguing to me, as it illuminated the underlying trust that each judge has in their clerks to help them reach the proper ruling in cases. Seemingly, a heavy but rewarding responsibility.

My favorite part of the program was working on the research exercise in my small group. My group consisted of two current state court judges, one former state supreme court justice, and seven law school students from across the country. As part of the research exercise, we received a memo detailing our task for the program; drafting an outline for the Court’s opinion on a specific legal issue. This year’s issue presented was whether a police officer of an Indian tribe lacked authority to detain temporarily and search a non-Indian on a public right-of-way within a reservation based on a potential violation of state or federal law.

At first glance over the issue, I was a bit intimidated. This case presented both questions of general Fourth Amendment principles and Indian law. Living in Texas, Indian law is not an area that a law school student would come across very often. Further, at the time of the program, I had not yet taken any criminal procedure classes, so I had only a basic understanding of the legal workings of the Fourth Amendment. However, I was determined to overcome that intimidation and make sure I got the most out of the program.

Over the next two days, my fellow law students and I conducted research to find and analyze Circuit Court and state court opinions that had addressed the same issue. We also conferred with our group judges to discuss any other relevant information necessary to resolve the case. Finally, as a group, we discussed—and sometimes debated—what we thought the substantive issues in our case facts were. These discussions were fun, as they were thought-provoking and sometimes very spirited. This process seemed to be the essence of what we would experience as judicial clerks; thoroughly researching an issue and other relevant information and then having a thoughtful discussion with your judge on what your conclusion is and why.

As a group, we drafted a comprehensive outline that included relevant case law subdivided by substantive issue, a thorough analysis of the law based on our facts, and recommended rulings for each issue. On the last day of the program, we presented our opinion outline to our group judges and received feedback. Additionally, after receiving feedback on our opinion outline, the judges provided comprehensive feedback and recommendations on each of our resumes.

The JCP was an incredible experience, and I am honored to have participated. I was able to get a real-world look into the experience of a judicial clerk and fostered relationships with multiple judges and other law students that I can carry with me throughout my legal career.

Reflections of a Participating Student –

Jae-Lyn Takemura: I am a 2L at the Indiana University Robert H. McKinney School of Law. As a second semester 1L, I participated in the 2021 JCP. Looking back on my decision to attend law school, I had no idea what lay ahead. The JCP provided me insight on an important job within the legal community. While I discovered clerkships during my first semester of law school and quickly became interested in learning more, the JCP provided me with more information about clerkships than I ever could have found on my own. The judges shared so many tips about clerkships it felt like receiving special, insider information. It was clear each judge had a genuine interest in helping and encouraging students to pursue future clerkships. I ended the JCP feeling like I could achieve anything I want during my future legal career, even if I have no idea yet what that will be.

The JCP presented a hypothetical problem that pushed my thinking further than I was prepared for. The hypothetical presented questions of general Fourth Amendment law along with specific Indian law. Before the JCP I had no experience with Indian law. At the time of the program, I was only a month into constitutional law and criminal law, both major components of the problem. Together with our judge’s guidance, my fellow students and I – we quickly came to think of ourselves as clerks – were able to work through the issues and collaborate on an opinion outline. We engaged in independent research and much deliberation where we each shared our thoughts and opinions on the issues.

The group work aspect of the JCP helped show students how important it is for clerks to collaborate. My co-clerks and I brought different levels of knowledge on Indian law, constitutional law, and criminal law. This led to differing opinions on the issues. As we completed individual research and discussed our findings together, each clerk taught each other something new. We brought different findings and case law to our discussions and helped each other through until we all agreed on and understood our outcome.

The JCP provided me with a plethora of information about clerkships. I left with more information about and more interest in clerkships than I anticipated. More importantly, the JCP taught me how important being open to learning from peers is. Without each clerk’s ability to listen to each other and learn from everyone’s research, we might not have reached a decision. Almost all of us had little to no Indian law knowledge, and as students we had not quite perfected constitutional law or criminal law either. Within a few days of initially reading the hypothetical, we successfully collaborated on an outline covering each issue presented. Thanks to the judges and my co-clerks, I ended the JCP with much more knowledge than I began with. As a 1L, I do not think I could have found a more rewarding opportunity than the JCP.

Post-script: The U.S. Supreme Court’s decision –

As noted, the JCP research exercise this year was based on United States v. Cooley, a case then-pending before, and subsequently decided by, the U.S. Supreme Court. 141 S. Ct. 1638, 2021 U.S. LEXIS 2816 (June 1, 2021). The district court had granted a non-Indian defendant’s motion to suppress drug evidence, and the circuit court affirmed, where the evidence had been seized by a tribal police officer from defendant and his truck parked on a public right-of-way within a reservation.

The Supreme Court cited Montana v. United States, 440 U.S. 147, 1979 U.S. LEXIS 27 (1979), for the “general proposition” that the “inherent sovereign powers of an Indian tribe do not extend to the activities of nonmembers of the tribe.” But the Court reversed the district and circuit courts, saying that one of the exceptions to the Montana rule “fits the present case, almost like a glove”: A tribe retains inherent authority over the conduct of non-Indians on the reservation “when that conduct threatens or has some direct effect on . . . the health or welfare of the tribe.”

While the Court recognized that some of its precedents prohibited applying tribal laws to non-Indians, it said that a tribal officer’s investigation of potential violations of state or federal laws by non-Indians, whether outside a reservation or on a public right-of-way, protects public safety without implicating the concerns animating those precedents.

A police officer of an Indian tribe, the Court held, does have authority to detain temporarily and search a non-Indian on a public right-of-way within a reservation based on a potential violation of state or federal law.