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American Legal Ideology in Theory and Practice - Lawyers Who Represent Native Americans

NCJ Number
L J Medcalf
Date Published
255 pages
This study investigates the connections of law to the basic character and underlying tensions of American liberalism. To do this, it specifically examines the activity of 16 politically liberal lawyers who represent Native Americans.
The conceptual framework of American liberalism used here is identified as the Lockeian liberal tradition. The study concentrates on the 'best' qualities of the law; i.e., law as an activity emphasizing freedom from repression. The focus is on lawyers who still engage in the practice of law, but who represent Indian clients of issues which challenge the status quo. Thus, they attempt to change themselves and the system. One of the lawyers was supported by public funds, five were involved in the National Lawyers' Guild project, one was employed solely as a tribal attorney or inhouse counsel, eight were in private practice, and one was a professor of law. Research methodology consisted of (1) 2-hour, open-ended interviews with the attorneys and (2) examination of supporting written documentation. Together these materials become a picture of the law as activity. Gathered in addition to the interview data was information from law review articles and other legal journals and Indian case law material. The study concludes with the complex, and seemingly circular, concept that the law is both liberator and oppressor. (This is also expressed as a power/rights dichotomy which corresponds to an order/freedom dichotomy). To explain how the law can be both liberator and repressor, the results of the Indian Civil Rights Act are cited. Whereas Indian governments once operated traditionally, tribal entities are now gaining power in the liberal/capitalist sense as a result of laws granting them new freedom. Rights against the State and other sources of power are the last semblance of human dignity in a power situation. Consequently, to protect individual Indians from the abuse of power, the law must assert the constitutional rights of the individual against the tribal government. Thus, the institution of tribal power has led to the necessity of the institution of rights. By extension, then, the law is repressive in the broadest sense. Footnotes, 130 references, and an appendix containing U.S.C. 1301-1331 are provided.


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