Alumni Q & A
Arlinda Locklear ’76
For Arlinda Locklear, 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.
She delayed thoughts of retiring after the 2020 election, noting the election or re-election of three Native representatives to the U.S. House of Representatives, and the subsequent confirmation of Debra Haaland to lead the Department of the Interior, making her the first Native American cabinet secretary in U.S. history.
“It’s 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 says.
Locklear recently spoke to Duke Law Magazine about her practice, the Lumbee Recognition Act, the landmark 2020 Supreme Court ruling in McGirt v. Oklahoma, and issues to watch in federal Indian law.
Duke Law Magazine: Since 1988, 29 Lumbee recognition bills have been introduced with strong bipartisan support, yet none have passed the Senate. 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?
Arlinda Locklear: The 2021 Lumbee Recognition Act 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 were trying to do.
I’ve never seen the partisan divide that exists now on the Hill. 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.
“Indian issues don’t generally follow the usual political or philosophical breakdown on the Court between liberals and conservatives.”— Arlinda Locklear
DLM: In McGirt v. Oklahoma, the Supreme Court ruled 5 to 4 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.
AL: 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.”
DLM: How far-reaching are the ruling’s implications? Oklahoma claims it has thrown the criminal justice system into chaos, and is pushing to have the Court overturn it, apparently pinning its hopes on Justice Amy Coney Barrett.
AL: 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.
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.
DLM: A number of recent 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 — 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.
AL: We were still waiting for the decision 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. 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. They did wait, and fortunately Justice Gorsuch started with a general discussion of the background of the General Allotment Act and allotment as applied outside Oklahoma. 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.
DLM: Besides McGirt, what other issues should we keep an eye on?
AL: 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 that 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. 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.
DLM: Practicing Indian law really seems to be a long game.
AL: 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.