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06/09/93

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Law grad seeks to bridge U.S.-Indian legal systems

STANFORD -- Armed with a Stanford law degree, Marcus McCaskill is returning to his home state, New Mexico, where he hopes that he can make a difference and offer help where help is needed in the American Indian community.

McCaskill grew up, went to grade school, high school and college in Las Cruces, an agricultural city of about 60,000, 40 miles north of El Paso, Texas. He was born and adopted as an infant, 24 years ago, into the family of a Church of Christ minister.

He said he got his sense of personal responsibility and his anger at injustice from his parents, who raised him - he was the youngest by 12 years of their two sons and two daughters - to have hope as well as a strong sense of right and wrong.

"My parents always wanted me to be proud of my Indian heritage," McCaskill said, "and I couldn't have asked for a better adoptive family. But there is no reservation right next to Las Cruces, and I didn't start to think about my Cherokee identity or the history of my tribe or what it really meant to be Indian until my sophomore year in college.

"Most Indian children don't have an opportunity for higher education," he said. "Growing up on a reservation usually means growing up in poverty. I would hope that, as a nation, we could do better for Indian children - that they could have the opportunities I've had without losing any part of their Indian selves."

From stage to courtroom

McCaskill was a theater major at New Mexico State University when he found that he "wanted something different, more substantive." A television program he happened to watch over Christmas break, showing an attorney at work, made him reconsider a legal career.

"I went back to school determined to be an attorney, to speak for a cause," he said. "I changed my major before the term started and concentrated on criminal justice."

After earning his bachelor's degree, he worked in the New Mexico Fellows Program (modeled after the White House Fellows Program) on projects connected with the New Mexico prison system.

"I got the impression," McCaskill said, "that all prison systems have some shared characteristics. That is, anybody behind bars is foreign, inferior and dispensable in the eyes of those not behind bars. Beyond that, I grew convinced that as a people we haven't set any consistent and concrete expectations for our corrections systems.

"There are piecemeal advances, I think, but there is good reason to believe that Indians are still disproportionately represented in U.S. prison populations - and not for 'protest' crimes."

On Indian land, all major crimes are dealt with in federal courts. The intent of the Major Crimes Act, McCaskill said, was not to give Indian tribes or tribal governments concurrent local jurisdiction but, rather, to give the federal government greater control over Native Americans.

"From the earliest European-Indian contacts, there have been efforts to get indigenous peoples to reframe their social institutions and their systems of justice," he said. "Some tribes tried to refashion themselves on the European model - and the Cherokee were a prime example of an attempt to do that - but it never really worked."

Many tribes, McCaskill said, "now are attempting to reassert the sovereignty of tribal courts on tribal lands and to effect some changes in federal policy."

Choice of law schools

When he took the Law School Admissions Test (LSAT), McCaskill said, he found his high scores both a little surprising and very gratifying. He was accepted at Georgetown, Harvard, Pepperdine, Stanford and the University of California-Berkeley.

Considering the high price-tag of a law degree, McCaskill knew he had to make his choice carefully.

"Education," said McCaskill, "carries an extremely high price-tag in the United States, even with loan forgiveness programs for law school graduates who go into public sector law."

Stanford's Native American Law Student Association (NALSA) was a major factor in his decision to attend Stanford, he said, as were his conversations with Sally Dickson, associate dean for student affairs at the Law School, and his visit to campus for the school's minority admissions weekend.

Of the courses he has taken at Stanford, McCaskill counts as among the most important Native American Common Law and Legal Institutions (organized by NALSA with Irvine Foundation funding). McCaskill praised the course for the non-European legal perspectives it introduced. Equally important, he said, was a course of lectures on federal Indian law by visiting Professor Rory Snow-Arrow Fausett.

Another influence was San Francisco attorney Tony Serra (Stanford Class of 1957), who introduced into the 1990 California appeals court trial of a Karok Indian, Patrick Hooty Croy, the precedent-setting notion of cultural defense - that is, the idea that a defendant's cultural history must be taken into account in assessing frame of mind.

Serra, who visited Stanford to discuss the case with students, also stressed the importance of non-evidentiary and non-verbal cues in a courtroom as well as the importance of social context to trial outcomes: Scene-setting and careful staging are often employed by trial attorneys. So, McCaskill said, he will find a practical use for his earlier theatrical training.

Ideal of equal justice

McCaskill wants to address, during his career, what he calls the big picture: that cultural genocide against American Indians has been attempted in various guises over the whole course of U.S. history.

"That needs to redressed on several levels, including legal advocacy," he said. "Unfortunately, there is still not equal justice in this country. There is still racism. And it's especially disappointing to encounter it on campuses like Stanford - for instance, in faculty hiring."

His immediate future?

"I want to take home what I've learned at Stanford - and what I've learned this year as an extern in the Santa Cruz County Public Defender's Office - and use it for the good of my community," he said.

"I'm going home to study for the New Mexico bar exam, and then I want to work on any level I can - local, state or federal - to make whatever contribution I can to a better system of justice for all of us."

-dmh-

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