By Blake Etringer

In honor of Native American Heritage Month, we had the opportunity to interview Professor Bethany Berger, one of the nation’s leading experts in Federal Indian Law, and a new addition to the Iowa College of Law staff! Professor Berger shared her past experiences and future aspirations for the field of Federal Indian Law, and how she hopes for continued progress to be made in recognizing the rich culture, traditions, and contributions of indigenous peoples in the United States and beyond. 

Q: We’ll start with your beginnings in Indian law—what initially drew your interest to it?

I'm from New York City, so there's not a big Indian law Center. When I went to law school, I thought I was going to do international human rights, and I did some of that my first year and my first summer, but for various reasons I felt like that wasn't the best place to use what I was learning as a law student. 

Then the Cheyenne River Sioux tribe, which is a Lakota tribe in South Dakota, was looking for people to work in their Attorney General's office. It seemed like that was an area where lawyers hadn't been working very much but could potentially have a significant impact; it also had some of the same issues of overlapping sovereignty that drew me to international human rights law in the first place. I went there during my second summer in law school, and I was so struck by how important it was to have lawyers working in the field. 

The tribe I was working for, was working on an Eighth Circuit appellate appeal challenging a South Dakota tax that the Supreme Court had already three times—with respect to a different tribe in Oklahoma—said they couldn't impose. They would still be imposing this tax had some citizens of the tribe never gone to law school and come back and worked in the Attorney General's office and saw that the state was violating their people's rights. If the lawyers had not been there doing that, the state of South Dakota would have kept on doing something the Supreme Court said they couldn't do. 

There were other experiences like that that summer that made me feel like this is where I wanted to be. When I graduated, I wanted to continue working in Indian law, and I kind of landed my dream job as the director of the Youth Law Project for the Legal Services organization that serves the Navajo and Hopi tribes in Arizona, New Mexico, and Utah.

Q: Were there any mentors that inspired you to pursue this field, or was it something you discovered on your own?

It was actually something I kind of discovered on my own. When I was in law school, there were no professors teaching Federal Indian Law. One semester, they flew in two attorneys from Colorado to teach a course in Indian law. Still, I was already enrolled in a really celebrated course in capital punishment that I really wanted to take, so I didn’t even take Federal Indian Law while in law school. There were a few of us students, though, that were interested in the field, and we kind of stuck together and found opportunities on our own.

Q: What aspects of Indian law do you find most interesting or most important?

Issues of justice are really compelling to me. Less so today, but particularly when I began doing this, there were issues that lawyers (and most people) weren't really paying attention to, so it felt like this was an important area for me to work in. Overlapping sovereignty is also a fascinating and important one, and the history in this field is really compelling. 

During my summer internship, for example, my job for this 8th Circuit brief was to look at treaties from the 1850s and 1860s to find arguments and distinguish our case from other cases involving different treaties to build a better argument for our own case. This has continued to be a really fascinating thing to me, and a big area of my scholarship deals with looking at the history.

Q: What are your current research and academic pursuits—are there any projects that you are working on that you would like to mention?

I'm working on one of the most famous and important cases of the 20th century for Federal Indian Law, called McClanahan v. Arizona (1973), which established that states cannot tax the income of tribal citizens living and working on their reservations. It was one of a series of cases that helped to reestablish the limits on state jurisdiction on reservations. The case was brought by a young Navajo woman, Rosalyn McClanahan, who was working for one of the only Native American-owned banks in the country within the Navajo Nation. She brought this case challenging that the state unlawfully took $16.20 from her paycheck and income taxes over the year. The case lost in Arizona twice before they went to the Supreme Court and won. Nobody has really written a history of the case, so I was just looking at [Rosalyn’s] old yearbook pictures from 1961 and 1962 and delving into her history.

Q: Can you highlight any aspirations that you might have for the future of Indian law? 

Well, I think that the courts often rule from a place of ignorance about what the history is, what the law says, and what is actually going on with indigenous people and indigenous communities today. I hope that my research is part of a much broader effort to change that, and by changing that, I hope it will lead to greater recognition of tribal sovereign rights. This will enable tribes to be more powerful actors to support not only their tribes but everybody within native communities.

Q: In what ways do you envision your students at Iowa helping to play a role in shaping this future?

One of the important changes over the last 20 years is that people are becoming somewhat more aware of Indian law and less ignorant of some of the things that I just mentioned. So, for people doing business law and education law and civil rights law, I hope to ensure that they all understand something about the history of native nations and Federal Indian Law. I think this will improve things for native people and for the progress of the law in general. Some of my students from before have gone on to work for tribes or to write papers that have been published regarding Indian law and legal history, and I hope that will continue here at Iowa Law.

Q: Do you have any final thoughts or reflections that you would like to share for Native American Heritage Month?

I want to thank you for writing something to commemorate Native American Heritage Month. It’s so important that this country and the state of Iowa grapple with its history and the current issues facing indigenous nations. It's been great being part of this Iowa community and also learning about the rich history of native nations in this land.