Parsing the doctrine of discovery: Lawyer examines new issues in Indian law

Published in Indian Country Today in July 2010.

A June 2010 ribbon-cutting ceremony marked the opening of a new Westminster, Colorado, office for the Native American-owned law firm Smith, Shelton & Ragona. The year-old firm has three partners: Keith C. Smith, Navajo; Brett Lee Shelton, Oglala Lakota; and Donald M. Ragona, Matinnecock, shown above with associates and staffers. 

Indian Country Today spoke to Shelton, who also serves as council for the Oglala Sioux Tribe, about the firm’s work with tribal communities.

Indian Country Today: Why did you set up shop in this area, just north of Denver?
Brett Lee Shelton: It places us in the center of Indian country, keeping us in touch with Native communities and their issues. Our partners and most of our staff are tribal members who are fluent or reasonably comfortable in our home languages and cultures. As a result, we understand that important concepts are sometimes formed in tribal languages, rather than in English, and can find ways to ensure these are considered when legal problems arise.

ICT: Can you give us an example?
Shelton: A 2007 child and family welfare code enacted by the Oglala Sioux Tribe, which I helped write in consultation with elders, translated beliefs about the rights of children and families to today’s family structures, which ranged from traditional ones to assimilated ones. Such ideas can also be part of regulations protecting tribal communities and providing a space in which they can live their lives as they see fit; for example, some tribes forbid photography to accomplish this.

ICT: What are the pressing new issues in Indian law?
Shelton: One important emerging area is the gathering of indigenous DNA, which may have unique characteristics, for medical or pharmaceutical research. Recently, the Havasupai settled a suit against researchers who used DNA collected from the tribe for wider-ranging purposes than the diabetes study tribal members had originally approved. The additional work included studies on mental illness and on theories of the tribe’s origins that contradicted the tribe’s own

ICT: Is genetic research fundamentally problematic?
Shelton: Tribal people worldwide are generally very careful about the disposal of bodily remains, even nail and hair cuttings. As a result, some are deeply offended when scientists graft their DNA into bacteria or other species, make it part of what are essentially immortal cell lines, or trade or sell it to other scientists. However, the possibility that such things might happen is often buried in the boilerplate language of genetic-research agreements and consent forms. So, a community embarking on such a project should have a lawyer who understands the tribal thinking — which may not be expressible in English — go through any contract. When I did genetic-research activism among Maori people in New Zealand some years ago, we explained how the research worked in terms of an important framing concept of their culture. Only then could they make informed choices based on issues that mattered to them.

ICT: How do scientists justify such invasive research?
Shelton: They don’t have to with most mainstream people. However, for Native people, genetic research is one of the most recent frontiers of the doctrine of discovery. The mainstream has taken most of what it can from Native people in terms of land and resources. So now, I would argue, it’s getting under their skin and into their minds. Examples of the latter are traditional plant knowledge, from which pharmaceutical companies want to make new drugs, and indigenous ideas about ecosystem management.

ICT: Can you give us short primer on the doctrine of discovery?
Shelton: The underlying belief, which goes back at least to old England, is that things in nature have no value until someone captures them or does something with them. Then they can be legally protected so the discoverer or creator can profit. In essence, this says,‘finders keepers.’ In contrast, Native people see things — an echinacea plant, let’s say — as having intrinsic value and requiring knowledge and perhaps a ceremony to use. There’s a responsibility before there’s a right. In the Euro-American model, you just dig it up; then you can make something out of it and patent that thing.

ICT: Should Native people be patenting, copyrighting and trademarking?
Shelton: Intellectual property law looks helpful, but isn’t. Let’s say you copyright a song; it’s protected for some years, then passes into the public domain, which makes matters worse. It’s no longer necessary to understand the song in order to sing it. We Native people have to live in the world according to our own instructions, so we have to find other ways to regulate what’s acceptable — such as a recent Oglala Sioux Tribe code addressing collection of paleontological and archaeological remains on tribal land.

ICT: What about off-reservation instances?
Shelton: As a lawyer, you have to think on your feet and find creative solutions when such problems arise. Courts and regulationaren’t always the best choices. Sometimes the answer may be negotiation. For example, in the late 1990s, the Native American Rights Fund worked with the National Parks Service to close Devil’s Tower to climbing during June, the time
during which tribes associated with the site felt it was most important to restrict this activity. Public education, to create dialogue between Native and non-Native people, is also needed, in order to recruit as many allies as possible and all eviate opposition — which might not exist if understanding were advanced.

ICT: Do the courts provide useful remedies?
Shelton: We try to go to court only with cases with the most favorable facts, and with an eye on the biases of the courts — which are all over the map. Litigation is also expensive, so we’re cautious about advising a client to take that route.

ICT: With all the complex and changing issues in Indian country, is there a need for more attorneys, especially those who are “on the ground,” as your firm is?
Shelton: There are many young Indian lawyers coming along, as well as Indian people considering this profession. I tell them to develop broad legal expertise, but also to specialize if they’re drawn to a subject — the environment or business, let’s say. That way you’ll bring to your people the best legal toolkit possible There is certainly need for more attorneys dedicated to providing high-quality services to tribes, particularly if they have both real expertise in the legal system and an awareness of tribal thinking.

c. Stephanie Woodard; photo courtesy of Smith, Shelton & Ragona.

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