What Justice We Can Achieve: Five Questions for Dan Lewerenz

This is the fifth piece in a series on Indigenous lands and waters in the Americas, inspired in part by the 2019 place-based workshop Changing Landscapes of Indigeneity organized by the Center for Culture, History, and Environment in Wisconsin. The series shares work that addresses Indigenous movements for sovereignty and self-determination as well as issues of environmental and social justice.

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“We don’t always have the luxury of trying to think broadly about what justice means. We have to think practically about what justice we can achieve.” A staff attorney with the Native American Rights Fund (NARF), Dan Lewerenz is deeply familiar with the progress possible within the U.S. legal system, as well as the limits of what legal forms of justice can achieve. Founded in the 1970s, NARF is the oldest and largest nonprofit legal organization defending the rights of Native American tribes, organizations, and people. Their bailiwick is broad, protecting natural resources from exploitation, securing human rights, and holding U.S. federal and state governments accountable. As this range of issues suggests, NARF works toward multiple, intersecting forms of justice: legal, environmental, and social.

I interviewed Dan Lewerenz during his visit to Madison, Wisconsin for the National Science Policy Network symposium in November 2019. We discussed the complexities of Supreme Court cases and current legal challenges to Native American rights, the role of science and scientists in protecting environmental resources, and the importance of stories to legal arguments.

1. What brought you to your career as an attorney?

When I was in college, I probably would have said that I wanted to go into American Indian law and policy. Then I spent 10 years in journalism, but there came a time when I realized that wasn’t what I wanted to do with the rest of my life. I started thinking about other options, going back to the idea of being a lawyer working in American Indian issues and working on behalf of Indian tribes.

I did debate in high school. I found myself comfortable in that argumentative environment— not combative, but about the exchange of ideas. That form of reasoning resonated with the training I would later get in law school. Before I went to law school, I was already thinking in a lawyerly kind of way. And my family is Native. My mother, her father, and his father come from the Iowa Tribe of Kansas and Nebraska. So that was an area of law that was of particular interest to me, and where I thought I could make a difference and have a rewarding career.

2. How does your ten years as a journalist shape your approach to legal issues now?

Journalism shaped me as a lawyer in a couple of ways. One, it requires you to quickly analyze a lot of facts. You have to identify which of those are relevant. If you’re telling story A, these facts are relevant. If you’re telling story B, these facts are relevant. They may not always overlap.

Journalism also requires you to think in terms of narrative. When I’m crafting legal arguments, I’m not just asking, what are the controlling authorities, what are the applicable precedents, and what analogies can I draw? I’m asking, what is the story that I’m trying to tell? What can I communicate with this? The authorities and precedents persuade the court rationally, but what persuades the court personally are the stories.

3. The Native American Rights Fund (NARF) takes on cases in a wide range of areas, like education, sovereignty, rights, and natural resource protection. Could you describe the focus of your work there?

A large part of my portfolio is working with our partners at the National Congress of American Indians (NCAI) on the Tribal Supreme Court Project, which NARF and NCAI have been doing together for almost 20 years now. Across Indian country, people noticed that there was a trend. There was a time when the Supreme Court was generally a good place for us to vindicate our rights. But the court seemed to have turned. There were new justices. They had different ways of seeing the world. The practice of law in front of the Supreme Court had become more and more specialized, and we weren’t winning the cases.

So, with some outside funders and with a lot of cooperation within Indian country, our two organizations created the Tribal Supreme Court Project. We try to take a strategic approach to the litigation that has the biggest impact, either Supreme Court cases or lower court cases that are both very important and seem to be on their way to the Supreme Court.

Like I said, the practice of Supreme Court argumentation has become very specialized. Sometimes, Supreme Court cases start out as everyday cases. When that happens, the attorney who got you there might not be the best person for the very specialized practice at the Supreme Court. We can help tribal clients evaluate their options. We can put them in contact with counsel who may represent them at the Supreme Court, and sometimes do so at reduced rates or pro bono, especially when it’s a tribe that has limited resources. Sometimes the counsel who brought them there takes on a co-counsel, to advise them. We also put together mock arguments and provide feedback on briefs.

Also, when a case gets to the Supreme Court, it’s rarely just about the two parties on either side. The Supreme Court is a policymaking body. So, they get a lot of amicus briefs from organizations who have an interest. We will coordinate with the Indian interests on the case about those briefs. Are there messages the parties can’t deliver because they’re limited by the record, or because they only have a certain amount of space? Are there messages that they’ll touch on, but there’s someone else that can provide some depth or breadth? We try to match up the message and the messenger so that we have covered the field, and we’re strategically communicating everything we want to communicate to the court. This Tribal Supreme Court project is a big part of what I do. My colleague Joel West Williams manages that project on NARF’s side, and so it’s an even bigger part of his portfolio.

I also work with one of our attorneys in Alaska, Erin Dougherty Lynch, who is NARF’s lead on the Indian Child Welfare Act. For the last two or three years, there’s been a raft of litigation from parties challenging the constitutionality of the Indian Child Welfare Act and, in doing so, essentially challenging the constitutionality of all of Indian law. We’ve coordinated a nationwide and robust response that includes briefing in the courts where this is being litigated, but also policy advocacy and public education trying to get the word out.

And I’m our voting rights team. We have a lot of voting rights issues in Indian country. In 2017 and 2018, NARF and a number of allies who’ve created the Native American Voting Rights Coalition spent about a year going around the country and hearing from tribes in their territories about the experiences that they have voting, both good and bad. We want to identify the barriers that they’re encountering, so that we can find ways to overcome them. Sometimes that requires litigation, but often we’re looking for alternatives that don’t go that far. We also want to identify best practices, things that are particularly helpful for Native voters. Where are our tribes doing the best to get their voters registered and turned out, and how can those efforts be replicated elsewhere?

 

I’m also on our Keystone XL pipeline litigation team. NARF represents two tribes, the Rosebud Sioux Tribe of South Dakota (Sicangu Lakota Oyate) and the Fort Belknap Indian community, which has within it two constituent tribes, Gros Ventre (Aaniiih) and Assiniboine (Nakoda), on the Fort Belknap Reservation in Montana. We’ve brought a number of legal chief claims against the federal government’s approval of the pipeline. Some of those claims are things that other environmental groups had argued as well. But representing tribal clients who have sovereign interests that those other plaintiffs don’t allows us to bring some unique claims that turn on Indian law and on the sacred obligations that the tribes and the United States took on towards each other, and that the tribes have upheld and that we would like the United States to uphold as well.

4. So much of the work of the Native American Rights Fund is to address long-standing and widespread violence, dispossession, and land theft. How is justice important to your work? I’m thinking both of justice in the legal sense, but also forms of justice that go beyond the legal sense, like social justice and environmental justice.

In some ways, it’s a hard question to answer as a NARF attorney. We’re similar to the ACLU, NAACP, or MALDEF, in that we bring certain kinds of claims on behalf of certain kinds of plaintiffs. One thing that sometimes distinguishes us from them is that we never act as our own plaintiff. We always represent an Indian tribe, an Indian organization, or an Indian individual. We aren’t independently bringing action; we are always representing others. But we represent them in a legal forum.

The ways that we can achieve justice within the bounds of a legal system are somewhat cabined. We don’t always have the luxury of trying to think broadly about what justice means. We have to think practically about what justice we can achieve. That said, we are not above articulating claims that may not be traditional types of claims. We might read treaty language, and what it obligates the United States to, somewhat differently than a court has interpreted it in the past or certainly differently than a federal agency might interpret its obligations.

Some of our attorneys, in addition to doing the traditional legal work, are also often working outside of traditional legal circles in other projects aimed at achieving social justice, like the Boarding School Healing project and the Indigenous Peacemaking Initiative.

5. We’re speaking during the National Science Policy Network symposium, where you just presented on a panel about natural resources. One of the priorities of NARF is protecting environmental rights: land rights; water rights; hunting, fishing, and gathering rights; timber rights. Could you speak a bit about what this involves, and how scientists are involved in the work of NARF?

I don’t directly interact with scientists, but I can give you an example of how science might influence something that we do. One of the things that NARF works on is water rights for Indian tribes. When those reservations were set aside, those reservations came with the understanding that tribes would have the water necessary to effectuate the purposes of the reservation. But often those water rights were not quantified. At the same time, the tribes often lacked the money and the technology they needed to develop the water. Because tribes weren’t using that water, and water is a valuable resource, other people began using it.

 

A hundred years later, when we try to work this out, we have to determine how much water there is and how much the tribes were entitled to. Scientists play a big part in those evaluations, both quantifying the total amount of water and the water needs of the tribe. Science also influences how the tribe might use the water. Ultimately, the way these things usually are resolved is in a settlement, where the tribe says, we were entitled to X but we are willing to take X minus whatever, in exchange for payment that covers the water you’ve been using all these years and the water that you’re purchasing out of X that we are entitled to. Then we can use that money to develop a drinking water system, a wastewater system, an irrigation system, the sort of infrastructure that we need for economic development. Knowing what is available in that area, the possible uses of that water, has to be a part of that calculation.

When we first started doing this in the 1970s, I don’t know if people took climate into consideration. But now we have to. If you quantify what’s in the river today, that doesn’t necessarily tell you what was in the river 10 years ago and what will be in the river ten years from now. There’s scientific evaluation that goes into saying what we can expect from this water in the future. We don’t want to commit ourselves to something that’s not going to be sustainable, because sustainability is a big part of what tribes try to plan for.

This transcript has been edited for length and clarity.

Featured image: A promise of equal justice under the law carved into the front of the Supreme Court building of the United States. Photo by Matt Wade, 2005. 

Dan Lewerenz joined the Native American Rights Fund (NARF) as a staff attorney in 2017. Before joining NARF, Dan was an attorney-advisor for the U.S. Department of the Interior, Office of the Solicitor, Division of Indian Affairs; a law clerk to the Hon. Claudia Wilken (N.D. Cal.) and the Hon. Leo I. Brisbois (D. Minn.); and an associate in the Oklahoma City office of Hobbs, Straus, Dean & Walker, LLP. Dan earned his J.D. from the University of Wisconsin Law School, where he graduated cum laude and Order of the Coif. Before going to law school, Dan spent more than 10 years as a reporter and editor for The Associated Press, and was a board member, officer, and president of the Native American Journalists Association. He earned his bachelor’s degree from Kansas State University. Dan is a member of the Iowa Tribe of Kansas and Nebraska. He is admitted to the bar in the District of Columbia, Oklahoma, and Wisconsin. Contact.

Laura Perry is Managing Editor of Edge Effects and a Ph.D. candidate in Literary Studies at the University of Wisconsin–Madison. Her research interests include animal studies and the public humanities. She is also an organizer of the interdisciplinary research group Environmental Justice in Multispecies Worlds. Twitter. Contact.