Indian Law Specialist Inspired
by Sense of Social Justice
he law school's urban campus is a far cry from the open expanses where Bethany Berger once lived and worked as a lawyer on the Navajo and Hopi reservations. But thanks to its thriving Indian law program, the law school is the only place Berger wants to be.
"I'm hoping to have more impact than I did as a practitioner, but I also plan to continue to participate in significant cases," says Berger, a research professor in Indian law.
"The great thing about legal academia is that you don't have to limit yourself to an ivory tower."
A graduate of Wesleyan University, Berger became interested in Indian law after hearing about the Navajos' efforts to gain access to a location they consider sacred. She went on to explore the topic, which she says is firmly rooted in her commitment to social justice, as a student at Yale Law School.
"Indian law has everything to do with the struggles of a people that have been wronged and figuring out what the law can do about it," Berger says. "Indian law involves hard questions of race, culture, and the fight for identity as a group - issues that get to the heart of what we're always discussing in America."
As a law student, Berger had the opportunity to work with the Cheyenne River Sioux Tribe's attorney general's office. In her last year of law school, she wrote her senior project on Indian women and the law. Shortly after graduation, she moved to the Southwest to work on the Navajo and Hopi reservations. Three times the size of Connecticut, the reservations occupy parts of Arizona, New Mexico and Utah. The smaller Hopi reservation is completely surrounded by the larger Navajo reservation.
As director of the Youth Law Project of DNA-People's Legal Services, Berger's first case was a successful suit against Arizona's Medicaid agency for refusing to provide medically necessary transportation to Indians on reservations.
"I was driving over dirt roads to meet pregnant women who'd been hitch-hiking 35 miles to get to their prenatal-care appointments," says Berger, who found herself writing a demand letter against the government before she was admitted to the Bar. "It was the kind of work I dreamed about as a law student. I was taken aback when people thanked me for doing it."
Berger spent three years working on the reservations and living in a trailer there. In 1999, she returned to New York City, where she was raised, to practice education law for Advocates for Children of New York. The organization appealed to the same sense of social justice that drew her into Indian law.
"In education, race and class intersect and change the rest of people's lives," Berger says. "Practicing education law can be frustrating, though, because you can see the limits of litigation in addressing those problems."
While in New York, Berger heard about the Indian law position at the University of Connecticut School of Law. It was the only job she applied for.
"I'm impressed that the school has continued to offer Indian law each year," says Berger.
In the spring, UConn law students will be able to learn about Berger's experiences, when she teaches her first course in Indian law at the school.
In her new position, Berger is working closely with the law school dean, Nell Jessup Newton, to revise the Handbook of Federal Indian Law, the main book lawyers, judges and scholars turn to when searching for answers to questions about Indian law. First written in 1941, the handbook was last revised in 1982.
"It's the most significant book in Indian law, and it's a real honor to be part of its revision," Berger says.
The revised handbook should be published in January 2004.
Berger's work on the handbook and her experience on the Navajo and Hopi reservations have given her special insight into current and future issues in Indian law. Indians and legal scholars are currently wrestling with the question of jurisdiction over non-tribal members, she notes.
"The original assumption was that jurisdiction was primarily territorial," Berger says. "Since 1978, however, the U.S. Supreme Court has decided several cases that denied tribal jurisdiction over non-members."
In one case, a tribal member sued Nevada state police in tribal court, claiming that when they came to his reservation home to execute a warrant, they damaged his property and violated his rights. This summer, the Supreme Court held that the tribal court had no jurisdiction over the state police officers.
"To say that tribal courts don't have civil jurisdiction over what happens to tribal members on tribal land is shocking," says Berger. "The question is how much this permanently whittles away tribal jurisdiction, and how much this is limited to the facts of the case."
Economic development on reservations is directly connected to the question of jurisdiction and is another growing issue.
"Tribes are now managing industries on reservations that were formerly controlled by the federal government or didn't exist before," Berger says. "As tribes redefine themselves, the public has to readjust their thoughts about what tribes are, too."