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Representing the First Americans

Brian Pierson knows what sovereignty means

Published in 2005 Wisconsin Super Lawyers Magazine — November 2005

Brian Pierson’s first case involving Indian law wasn’t exactly a quick, low-profile one.

In 1983, in what’s known as the Voight decision, the federal courts ruled that American Indian tribes had a right to spearfish not only on their reservations but off their reservations too. According to treaties signed in 1837 and 1842, tribes had never given up their right to hunt and fish on lands now in possession of non-Indians.

“They wanted to go out with spears as they always had during the three weeks in the spring after the ice melts,” Pierson says.

They didn’t get a warm reception. When Pierson began working with Native Americans in the early 1990s, he not only was a legal advocate, but he went out to where the trouble was happening, the waters of Northern Wisconsin.

“There were large protests,” Pierson remembers. “Rock throwing, and attempts at intimidation that were fueled in part by fear that the natural resources would be depleted, and partly out of racial animosity.”

According to Pierson’s arguments on behalf of the Native Americans, spearfishing wasn’t just about catching some fish during the springtime. “Part of what we showed,” Pierson says, “was that [spearfishing] was important for subsistence but also for religious and cultural expression.”

Thanks to a temporary injunction against the protesters, made permanent in 1992, tension over spearfishing has since eased, but Wisconsin’s American Indian population has undergone other changes. Throughout, Pierson has focused on defending Indian tribes in their evolving legal needs. He is currently the chair of the Indian law section of the Milwaukee firm von Briesen & Roper and has won the Posner Award for Pro Bono Legal Services and the ACLU–Wisconsin Civil Libertarian of the Year Award for his work with the tribes.

“What drew me to this area of the law was my attraction to working in a field that had its own cultural and historical dimension,” Pierson says. “It’s not just a body of law, but a distinct culture too.”

Pierson says Indian law makes up a “third layer” of sovereignty that isn’t bound by federal or state regulations alone. Indian law dates back to the founding of the republic itself. “The U.S. Supreme Court has consistently found that tribes are political entities that predate the founding of the United States and they have residual sovereignty,” he says. “The authority of the state is diminished, and it isn’t really found in the Constitution. Indian law is an overlay of hundreds of Supreme Court decisions and a vast web of acts of Congress.”

This extra form of sovereignty has created unique legal issues beyond fishing rights. Since the late 1980s and early 1990s, Wisconsin’s tribes have been involved in gaming, a business venture that has brought opportunity but also a host of problems. Some casinos — especially those run by the Potawatomi, Oneida and Ho-Chunk tribes — have been successful. The challenge for these tribes is to provide stability. According to Pierson, this means diversifying their business ventures, “looking deep into the future and planning strategically for the day when gaming isn’t driving their economy,” he says.

But success breeds problems. As Indians buy their own homes, issues are raised about ownership and sovereignty that are unique to Indian law and which are covered in Pierson’s Indian Housing Finance Handbook. Even mortgages can be complex. “Tribes want to encourage home ownership, but they don’t want to lose control of the land,” Pierson says.

But for many tribes, casinos haven’t brought in enough revenue to raise their members’ standard of living. “Most are at or below poverty level,” he says.

Pierson stresses that preserving and enhancing Indians’ way of life is imperative for all of us.

“It boils down to an international human rights issue — the right of indigenous people to exercise their rights as long as they choose to,” he says. “We expect our immigrants to ascribe to their new identity as Americans. But the indigenous people of the United States never signed up for that, and they shouldn’t be forced to assimilate. Many of them are proud of their American identity, but they do have a separate political and cultural identity. If those cultures disappear, there will be no other place for them to be expressed.”

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