Lance Morgan and the Decline of Federal Indian Law

Lance Morgan on the decline of federal Indian law:

“What we’re not teaching in law school is the other half of the system, where tribes are aggressively using their newly educated lawyers, their economic power, and their desire to do good to really change the equation.”

“Once you make the mental leap that the entire system is ridiculous...you don’t ever go back.”

Lance Morgan (Winnebago Tribe of Nebraska) is President & CEO of Ho-Chunk Inc. He is also the managing partner of the law firm Frederick Peebles and Morgan. And if you know Lance, or have read his previous work, you know that he is always good for a big idea, or an idea that pushes boundaries, in Indian Country. Lance returned to the show to discuss one of those ideas: the Rise of Tribal Law and the Decline of Federal Indian Law and he recently published an article by the same name in the Arizona State University Law Journal.

Many NextGen Natives are practicers of, or generally interested in, federal Indian law. Lance’s article is great because it forces readers to ask themselves the question how can tribal law be on the rise and federal Indian law be on the decline? The basic point is that tribal law is an exercise of tribal sovereignty whereas federal Indian law is the enforcement of restrictions imposed upon tribes over the last few centuries. And the decline of federal Indian law may not be a bad thing necessarily, if tribes exercise and use tribal law. You should go read it (after you listen to our discussion, of course).

The article is great for a few reasons. First, it forces us to re-think the way we approach law and policy in our communities. Even people who are thinking about how to proactively make a difference often use federal Indian law as an anchoring point. And it’s a losing one for us. Lance captured it succinctly when he wrote “We need to stop playing their game because we cannot win it. If we have any hope of progress, we need to play a new game.” Second, although it is published in a law journal, it is deliberately written so that non-lawyers (such as myself) can read and understand it. People should share this with tribal council members, business people, and community members to think about what Lance is suggesting and how to approach it.

We could have focused the entire conversation on the article, but that would not have been nearly as much fun. And I think the conversation about the other topics packs as much, if not more, food-for-thought for listeners.

Here’s the tip of the iceberg of a few of the topics we discussed:

• How Lance approaches his work as CEO of Ho-Chunk Inc.
• How Winnebago has built a thriving community using land that was entirely fee, and not trust, property.
• If we don’t plan decades ahead, the current housing shortages in Indian Country will be significantly worse.
• Education trends in Indian Country.
• .css-j9qmi7{display:-webkit-box;display:-webkit-flex;display:-ms-flexbox;display:flex;-webkit-flex-direction:row;-ms-flex-direction:row;flex-direction:row;font-weight:700;margin-bottom:1rem;margin-top:2.8rem;width:100%;-webkit-box-pack:start;-ms-flex-pack:start;-webkit-justify-content:start;justify-content:start;padding-left:5rem;}@media only screen and (max-width: 599px){.css-j9qmi7{padding-left:0;-webkit-box-pack:center;-ms-flex-pack:center;-webkit-justify-content:center;justify-content:center;}}.css-j9qmi7 svg{fill:#27292D;}.css-j9qmi7 .eagfbvw0{-webkit-align-items:center;-webkit-box-align:center;-ms-flex-align:center;align-items:center;color:#27292D;}