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STUDENTS ORGANIZE COURSE ON NATIVE AMERICAN COMMON LAW
STANFORD --In traditional Navajo society, cases of theft were handled by a meeting of the families involved. Similarly, when a murder took place within the Lakota tribe, the families got together to determine what retribution should be paid.
"The aim was not to extract punishment," said Stanford University law student Kip Bobroff, "but to restore everyone involved into harmony with the group."
Today, such examples of Native American justice rarely are taught in law schools - the few that do teach Indian law usually focus on the relationship between the federal government and Native Americans.
This semester, though, a group of Stanford University law students has organized an unusual new course focusing on both the traditional and modern role of law within Native American societies.
Taught by University of California-Berkeley Professor Rory Fausett - with planned help from visiting Cherokee, Cheyenne, Hupa, Iroquois and Navajo legal experts - "Native American Common Law and Legal Institutions" will consider how Indian societies historically dealt with such issues as criminality, dispute resolution and agreements.
The course also will show how Indian legal systems have changed or remained the same in the face of Anglo-American influenced institutions, such as tribal courts and legislative councils.
"Traditional Indian common law is drastically different from the Western adversarial system," said second-year law student Colin Cloud Hampson, a Winnebago/Chippewa who helped to organize the course.
"In Western courts the goal is to have a judgment or resolution. Traditional ways usually are not adversarial - they're more aimed at talking things out. A lot of tribal courts today are talking about incorporating more Indian common law into their proceedings."
Because so little of Indian law actually has been written down, organizing the course has proved to be a major challenge for Hampson and his fellow Native American law students.
In the past year, about five of them helped to compile a 1,000-page reading packet on the subject that includes scholarly articles, book excerpts, anthropological and historical studies, modern and traditional literary and religious texts, trial transcripts, and U.S. and native appellate court cases.
The students are hoping that visiting speakers - including a Supreme Court justice of the Navajo Nation, the attorney general of the Seneca Nation, a sub-chief of the Onondaga Nation and a former judge of the Northern Cheyenne nation - will fill in the gaps and add further information about how tribal courts operate today.
"If we can get sufficient grant money, we hope to be able to fly the speakers here," Hampson said. "This will be a rare opportunity for the campus to meet these people."
Because the course is so unusual, the Stanford law students are hoping to reproduce the course syllabus and reading materials in a form that can be used by other schools and Native Americans. The students also are having the course videotaped, and will be preparing research papers relating to their coursework that they hope to have published.
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