Kathryn Tierney’s first brush with tribal law came during one of the biggest criminal cases of the 1970s: the federal government’s prosecution of American Indian Movement members Russell Means and Dennis Banks for their role in an armed takeover of Wounded Knee, South Dakota, in 1973.
Means and Banks were part of a group that seized the town to protest corrupt tribal governments and treaty violations. Tierney and several of her classmates from the University of Minnesota Law School worked on the defense team for Means and Banks
The law students, who worked on the case without pay, pressured the law school to offer a class in tribal law.
“People wanted course credit for doing the work on that trial,” Tierney said. “It was fascinating and very impactful.”
The school agreed and hired a prominent tribal law expert who’d argued cases before the U.S. Supreme Court.
Means and Banks were tried in a federal court in Iowa in 1975 and acquitted. By that time, Tierney had graduated and was working as in-house counsel for the Bay Mills Indian Community in Michigan’s Upper Peninsula. She was the tribe’s first in-house attorney.
“They had never had an attorney before, but there was grant money for it,” Tierney said. “The first attorney they offered the position to had come up with his wife, who took one look and said, ‘No,’ because it was so rural.”
Says ‘No’ to Women’s Page
For many new attorneys – especially those who, like Tierney, are not American Indian or Alaska Native – accepting the position with the Bay Mills Indian Community would have been daunting.
Jeff M. Brown, Willamette Univ. School of Law 1997, is a legal writer for the State Bar of Wisconsin, Madison. He can be reached by email or by phone at (608) 250-6126.
Not for Tierney. She was accustomed to big moves into new territory, having lived in the United Kingdom and Israel when she was a child, thanks to her father’s service in the U.S. Air Force.
Tierney graduated from St. Catherine’s University in St. Paul, Minn., with a degree in English and journalism. But the prospect of working on a newspaper’s “women’s page,” writing recipe reviews and advice columns, didn’t appeal to her. So, when she heard a friend talking about law school, she decided to go too.
After her stint with the Bay Mills Indian Community, Tierney worked in the Office of the Solicitor of the U.S. Department of the Interior. By the early 1980s, Tierney was working with what is now Judicare Legal Aid. It was there that she made her mark on tribal law in Wisconsin.
Landmark Cases
In 1983, police officers arrested two Lac Courte Oreilles tribal members in northern Wisconsin for spearfishing beyond the boundaries of the Tribe’s reservation.
The Tribe challenged the arrests, suing state officials in the U.S. District Court for the Western District of Wisconsin. They argued that treaties between the Tribe and the federal government reserved for tribal members off-reservation hunting, fishing, and gathering rights, known as usufructuary rights, on public lands in northern Wisconsin.
The district court ruled for the state officials. But on appeal, in Lac Courte Oreilles Band of Lake Superior Chippewa Indians v. Voigt, 700 F.2d 341 (7th Cir. 1983), the U.S. Court of Appeals for the Seventh Circuit held that the Tribe retained its usufructuary rights under the treaties.
In a companion case, State v. Baker, 698 F.2d 1323 (7th Cir. 1983), the Seventh Circuit held that an 1854 treaty did not grant the Lac Courte Oreilles the right to restrict public hunting or fishing on navigable waters inside its reservation boundaries.
Tierney was part of the team that argued both cases before the Seventh Circuit. The results came as a surprise to Tierney and the other attorneys. They figured they’d lose Voigt and win Baker.
“Nobody was prepared for that,” Tierney said. “There were six tribes in Wisconsin who’d signed the same treaties of cession in 1837 and 1842, and there were two tribes in Michigan and one in Minnesota. Nobody had any clue as to how to deal with that.”
The Lac Courte Oreilles Band soon realized that the Baker decision meant they’d have to hire game wardens, wildlife biologists, and judges. That was a big ask at a time when, 10 years before the advent of tribal gaming in Wisconsin, most tribes in the state didn’t even have the money for in-house counsel.
“If there was money, it was for a school lunch program or training unemployed people,” Tierney said.
Shortly after the Voigt and Baker decisions came down, Tierney became in-house counsel for the Lac Courte Oreilles Band.
Impelled largely by the Voigt and Baker cases, the federal Bureau of Indian Affairs stepped in and gave the Lac Courte Oreilles Band the money it needed to hire the new staff.
“We spent a lot of time finding people to be wardens, finding people to be trained to be judges,” Tierney said. “One tribe had to amend its constitution so it could regulate the conduct of its members off the reservation.”
Tierney said the holding in the Voigt decision was worth the administrative costs indirectly imposed by the Baker decision.
“It was a massive victory for the tribes,” Tierney said. “Anything you could find in nature they could harvest if they chose, and they could use any methods, both traditional and modern. They could sell what they harvest and there weren’t any other restrictions.”
Precious Mentoring
The Voigt and Baker cases did more than give Tierney the opportunity to help make new law. They also allowed her to mentor other tribal lawyers – young women cutting their teeth on the Voigt and Baker cases the way Tierney had done on Means and Banks’ case 10 years earlier.
Along with dispensing how-to advice, Tierney often assigned her young charges trial tasks, like first-chairing depositions while she second-chaired.
“Those kinds of things are helpful to do in places where they know that if they mess up, you’ll ask for a halt,” Tierney said. “But you really want to have them try, to show them that doing it won’t have people crack up because you said something wrong. The issue is having the confidence to try.”
Tierney also made sure the lawyers she was mentoring knew the value of cultural humility.
“I tried to make sure that the attorneys knew that whether they were tribal members or not, that you’ll do best for your clients if they know that you like them,” Tierney said.
Do What You Love
Today, Tierney is back where she began, working as in-house counsel for the Bay Mills Indian Community. She advises new attorneys to choose their practice areas carefully.
“Practice the kind of law that you find interesting,” Tierney said. “The most ideal job is to be paid for something that you enjoy doing.”
She advises law students to participate in legal clinics whenever possible, to get a taste of real-world lawyering.
“People graduate and they don’t have a clue what a lawyer does,” Tierney said. “If you have no practical experience to go with your book learning, you’re not going to be able to figure out how to put the two together, and that’s what clinics are for. It’s an opportunity to see if you even like doing what lawyers do.”
The Tough Get Going
According to Tierney, the future has never looked brighter for women attorneys.
“Their gender is a positive rather than some status that they have to overcome,” Tierney said. “You want to have the compassion and the empathy and the interest so that people and their worlds are inherently interesting and something that needs to be explored and protected, not something that’s ugly and that you shouldn’t know about.”
For Tierney, no trial is too tough for the attorney who knows her worth.
“Women do not need to be protected from reality,” Tierney said. “Anybody who’s up all night with a baby is not being protected from reality.”
Making History: Four Ways to Celebrate 150 Years of Women in the Law
Join Wisconsin’s legal community in celebrating 150 years of women in the law. Here are four ways that you, your law firm, or the local legal community can recognize the significant contributions women have made to Wisconsin’s legal history.
Governor Proclaims June 17 as Wisconsin Women Lawyers Day
To commemorate the 150th anniversary of Lavinia Goodell becoming Wisconsin’s first woman lawyer, Gov. Tony Evers has proclaimed June 17, 2024, as Wisconsin Women Lawyers Day. The proclamation praises Goodell for pioneering a path for women in the legal profession across the state and for facing with unwavering resilience the many obstacles thrown in her path.
Commemorating Goodell’s Admission: June 17 in Janesville
To celebrate this historical milestone, a consortium of women lawyers is hosting a commemoration of Lavinia Goodell’s admission on Monday, June 17, 2024, which is the anniversary of Goodell’s admission in Rock County.
Everyone is invited to attend the program at 5 p.m. in the Rock County Courthouse, 51 S. Main St., Janesville. A reception will follow at the nearby Genisa Wine Bar, 11 N. Main St., Janesville (cash bar). There is no cost for the program or reception, but RSVPs are requested for planning purposes. Send replies to wiswomenlaw150@gmail.com.
Exploring Legal Developments Affecting Women: June 20 in Green Bay
The State Bar of Wisconsin’s Annual Meeting & Conference in Green Bay will include a special continuing legal education program exploring some important Wisconsin legal developments affecting women and the women lawyers who advanced them. The program, at 3:15 p.m. on Thursday, June 20, will begin with a welcome by Wisconsin Supreme Court Justice Ann Walsh Bradley. Topics covered will include:
Lavinia Goodell and the right to practice law;
Equal pay for equal work;
Married women’s right to own property and have credit;
Indigenous women’s legal identity, jurisdiction, and missing and murdered Indigenous women; and
Women as legal peacemakers: collaborative divorce, mediation, and restorative justice.
Reenacting Goodell’s Admission: Aug. 8 at Old World Wisconsin
Old World Foundation will host a program celebrating the 150th anniversary of Lavinia Goodell’s admission to practice law in Wisconsin. This program will take place at Old World Wisconsin in Eagle at 11 a.m. and 1:30 p.m. on Thursday, Aug. 8, during “Kids Get in Free” week.
“Old World Wisconsin is Wisconsin’s premier living history attraction that shares the stories of the past through hands-on activities,” says Gwen Griffin, executive director of Old World Foundation. “Thus, this reenactment is the perfect program to bring to the site.”
This year, Old World Foundation is also celebrating the 40-year fundraising partnership with Old World Wisconsin.
To Learn More
» Cite this article: 97 Wis. Law. 59-60 (June 2024).
