Arlinda Locklear '76 discusses her long career in federal Indian law
A member of the Lumbee Tribe of North Carolina, Locklear '76 was the first Native American woman to argue before the U.S. Supreme Court.
For Arlinda Locklear ’76, the practice of law is also personal. A member of the Lumbee Tribe of North Carolina, Locklear is one of the nation’s foremost attorneys in federal Indian law and was the first Native American woman to argue before the U.S. Supreme Court.
Locklear has built her 45-year litigation career representing tribes on issues including land and water rights, reservation boundaries and sovereignty, and federal recognition of tribes. That includes the Lumbee, who for 133 years have sought the federal recognition that would grant them legal status and access to funding, benefits, services, and protections enjoyed by 574 other tribes in the United States that are federally recognized. Locklear has devoted more than three decades to that effort, including supporting the 2021 Lumbee Recognition Act, which recently passed the U.S. House of Representatives by a vote of 357-59 and is now in the Senate.
She delayed thoughts of retiring after the 2020 election, when Debra Haaland of New Mexico, Sharice Davids of Kansas, and Yvette Herrell of New Mexico won election or reelection to the House of Representatives, joining two Native men, Oklahoma Reps. Tom Cole and Markwayne Mullin. In March Haaland was confirmed to lead the Department of the Interior, becoming the first Native American cabinet secretary in U.S. history. Last month the department’s first Native American solicitor was confirmed.
“With this new administration it’s so exciting to work with people who actually care about and are willing to be proactive on Indian issues, so I’m going to stick it out for a little while longer,” Locklear said.
Locklear recently spoke about the Lumbee Recognition Act, the landmark Supreme Court ruling in 2020’s McGirt v. Oklahoma, how politics and partisanship impact federal Indian law, and what to watch for next in this area.
Since 1988, 29 Lumbee recognition bills have been introduced with strong bipartisan support, and every time a bill comes up the papers say it has “the best chance yet.” With the current bill in the Senate, could this finally be the year the tribe gains federal recognition?
The bill passed the House of Representatives by a historic margin so it gave us some nice momentum going over to the Senate, but the problem in the Senate is that Indian bills are just never considered important enough to get their own floor time ... Indian bills are always passed as an amendment to some other major legislation, so that’s what we’re trying to do at this point.
I’ve been doing this for the Lumbee for a very long time and I’ve never seen the partisan divide that exists now on the Hill. It’s just poisonous. We have, in the past, generally enjoyed bipartisan support for the bill within the State of North Carolina but unfortunately the bill often gets caught up in partisan politics and that has prevented us from getting it over the finish line. Now we happen to have two Republican senators this Congress [co-sponsoring the bill] and the Senate is controlled by the Democrats. On the one hand, it’s obviously good to have Republican support, but on the other hand, because the Democrats are in control of the Senate it can complicate things, particularly in these hyper-partisan times. That’s just the way the process works. You take the good with the bad and try to squeeze it through that narrow tube.
Is there anyone in particular standing in the way of these bills passing, or do they tend to generally rise and fall with the political process?
There are both, I think, in opposition to the Lumbee. There is a senator from Utah who as a general principle does not like recognition of tribes and he makes it his business to object. Usually that comes out of Oklahoma as well. They make it their business to object as a point of principle. And politics also plays into it because the gaming industry usually weighs in on these. They do a competitive assessment to see whether a tribe that’s seeking recognition could construct a casino, would that casino interfere with any existing facilities? And so people from as far as California and Nevada and other places will get involved in the bill if they make the assessment that it may. So these things are complicated both philosophically as well as politically. But it still may go through. There’s going to be a lot of action in the Senate yet to come this year and next.
In last year’s 5-4 decision in McGirt v. Oklahoma, the Supreme Court ruled that much of eastern Oklahoma, including parts of Tulsa, was never disestablished by Congress as reservation land, and thus is out of the state’s criminal jurisdiction. It impacts some 1.8 million people, including many non-Indians.
People get really exercised about that – unduly, I think, because they don’t understand how much the Supreme Court has already cut back on tribal sovereignty power and jurisdiction over non-Indians. A tribe’s ability to influence the life of non-Indians on their reservations is very limited to begin with. And with most reservations, the governing tribe will go out of their way to maintain a respectful relationship with the local non-Indian governments. They resolve their differences by agreement and it’s generally a productive relationship. It’s just that a lot of the states don’t like it as a matter of principle and don’t even want to make the effort to negotiate with tribes on the basis of equality and on a government-to-government basis.
There’s a reason why Justice [Neil] Gorsuch went out of his way to say, ‘You may not like this but you have the political means to try to adjust it. Go to Congress and make your case, but until Congress tells us otherwise we’re going to respect the reservation boundaries.’
Oklahoma is pushing to have the Court overturn its own ruling, claiming it has thrown the criminal justice system into “chaos,” and is openly pinning its hopes on the newest justice, Amy Coney Barrett. Is there a chance the Court would do that?
There are some states – and Oklahoma is among them – that will never accept, as long as there’s breath in their corporate body, the proposition that tribes have jurisdiction over broad territories. It’s just anathema to them. South Dakota, Oklahoma, Utah, those places just take every opportunity to oppose it and it doesn’t surprise any of us that Oklahoma is doing that now. Obviously we’re concerned about it.
I don’t know what the new justice will do on this issue. We did everything we could to find any view of hers on Indian issues as a general matter and we were not able to. I will note that the court she came from, the Seventh Circuit, does have experience in Indian issues and that court itself is generally viewed as a mainstream court of appeals that follows the black letter principles of federal Indian law and tends to be towards the sympathetic side. Personally, I’m hoping that she just does not care, in which case she will be inclined to defer to Justice Gorsuch, who came to the Court with a very rich experience, particularly on the disestablishment issue, from his Court of Appeals.
Indian issues don’t generally follow the usual political or philosophical breakdown on the Court between liberals and conservatives. I think it’s also true that Native issues have an opportunity to really play on the sympathy of those judges that consider themselves originalists because so many of the doctrines we rely on really trace back to basic fundamental principles that are reflected in the Constitution. So we remain hopeful, and particularly given the recent trend of this issue in this Court, I think there’s going to be a disinclination to revisit it.
How far-reaching are the implications of the McGirt ruling?
I think they are overstated because in the criminal context, for example, to the extent the state loses jurisdiction the feds acquire jurisdiction. And as a general proposition, states don’t lose jurisdiction over non-Indians. If it’s a crime only involving non-Indians, then states retain criminal jurisdiction under particular federal statutes generally, and under a federal common law rule that the Supreme Court adopted.
What the state does face, though, is more narrow criminal jurisdiction over Indians, particularly if it involves another Indian, but in those cases the federal government has very clear jurisdiction, so it’s not as though there’s a gap that’s been created in the criminal justice jurisdiction jurisprudence so that crimes will go unpunished or uncharged. It is true that the federal government needs to step up fairly quickly and gear itself up to exercise that jurisdiction, but those issues exist all over Indian country. You’ll not find a single tribe that will say to you that the feds do their jobs well exercising federal criminal jurisdiction over Indian country. That’s only because the federal government has not resourced it as they should. And that’s a different issue. But in terms of the theoretical existence of such authority, it’s there.
In the past year a number of rulings reaffirming tribal sovereignty on various issues have cited McGirt, including a Seventh Circuit case you won just three weeks later for the Oneida Nation. In Oneida Nation v. Village of Hobart, the Nation’s sovereignty was being challenged by a village that wanted to impose its ordinance on a festival on what the court found to be undiminished Oneida Reservation. That’s quite a feat of timing.
We were still waiting for the decision in McGirt, and like all the rest of us I listened to the argument in McGirt and I was worried. One of the judges on my panel asked me whether they should stay their hand until McGirt was decided and I said no, because that involved a unique set of statutes that related only to Indian territory or Oklahoma and the issue in Oneida involved the General Allotment Act, which is the statute that applies outside Oklahoma to govern allotments of Indian reservations. So I told the court they wouldn’t get any guidance from Supreme Court’s interpretation of that unique set of distinct statutes in terms of how they should interpret the General Allotment Act.
Fortunately the court did not listen to me. Because they did wait, and fortunately Justice Gorsuch, while he could have relied just on his interpretation of those specific statutes applicable only to Indian territory or Oklahoma, started with a general discussion of the background of the General Allotment Act and allotment as applied outside Oklahoma.
And it was that discussion, I think, along with a couple of other points he addressed that convinced the Seventh Circuit that there had been what it referred to as a readjustment of the standard such that, as the court put it in Oneida, the village’s position was a loser before the McGirt decision and after McGirt it was borderline frivolous. So I was glad that the court did wait because as it turned out we did win McGirt, and as it turned out they also said some very positive and helpful things about the General Allotment Act as well.
Besides McGirt, what other issues should we keep an eye on?
You should watch what the United States does. The United States appeared as amicus in a Mille Lacs disestablishment case where in their brief they describe McGirt as having adjusted the standard that applied to these cases. That is a major thing, particularly when it reaches the Court of Appeals level, because the solicitor general’s office at Justice makes the ultimate judgment about whether the United States will weigh in on those cases. So if that becomes the formal view of the United States that carries a lot of weight.
An important issue I think is underreported is water rights. The Supreme Court has developed a body of law that applies there that is very protective of tribes’ water rights even if they’ve not been quantified, and as the 17 Western arid states get drier and drier that unlimited reservoir of federal reserved water rights becomes more and more important. So I think that warrants a lot of attention and scrutiny and I think we’re going to see more of it in the next 10 years or so.
The principle that the Supreme Court applies is that the United States was presumed to have withdrawn sufficient water to make any land base livable for a tribe so in a sense it’s very tied to tribal territory. But as a practical matter on the ground, most counties and particularly cities in those 17 arid Western states have ignored that right, and even though they will respect reservation boundaries they will nonetheless use, and basically develop, with unappropriated Indian water and they are resisting mightily the notion that those tribes should enjoy the full extent of those rights, even if they are quantified, given the times of shortage that we’re facing now. I think that pressure is going to get greater and greater as time passes.
Practicing Indian law really seems to be a long game.
I have a lot of the same clients from years ago. For example, I’ve represented my water client for 35 years now because these things take time. Like the Lumbee recognition bill, it’s just a question of sticking to it and trying to get things done. Judges change and there is usually a subtle adjustment in attitudes on the Hill, which is something we have to pay a lot of attention to, but other than that it’s pretty much the same.
My son’s master’s degree is in international affairs and my daughter’s is in women and gender studies and public administration, so they are not following me into law. I think they watched me over the years and said, ‘Oh my goodness, I don’t know why Mom keeps beating her head against some of these stone walls.’ But every now and then there’s a crack.