Building Community Around Native American Law

Eldred D. Lesansee ’25, a tribal member of the Pueblos of Jemez and Zuni in New Mexico, is president of the National Native American Law Students Association (National NALSA), which was founded in 1970 to support law students who are interested in the study of Federal Indian Law, Tribal Law, and traditional forms of governance. He has been chosen to lead the organization for two consecutive years, and also serves as past president of Columbia Law’s NALSA chapter. Lecturer in Law Precious D. Benally ’13, a citizen of the Diné Nation from Northern New Mexico, is a tribal justice and nation-building consultant. She teaches the Law School’s seminar on Native American Law. As a student at Columbia Law, she also served as National NALSA president. In the past 25 years, six students from Columbia Law have served as National NALSA presidents—far more than from any other law school—including Patty Ferguson-Bohnee ’01, Daron Carreiro ’07, Nicole Willis ’08, and Shawn Watts ’12. 

Below, Benally and Lesansee discuss building community, pressing concerns in Native law, and the struggle to protect tribal intellectual property. 

What were your goals in getting involved with the Columbia Law chapter of NALSA and the National NALSA organization? 

Precious D. Benally: My way of being engaged with my passion for Native American law and helping Native people was to take part in NALSA. Coming from undergraduate education at Dartmouth, which has a relatively large percentage of Native American students, to Columbia was a drastic difference. But I knew that what I missed in that regard, I would make up in the type of network I would create, and the level of legal education I would have at Columbia. NALSA did a really great job of creating a community. We were encouraged by everybody in our local chapter to get involved in National NALSA. We didn't want to be that East Coast school that did really well at the NALSA moot court competition but then didn’t give back throughout the year. 

Eldred D. Lesansee: I come from the Pueblos of Jemez and Zuni, and like many other tribes, we’re very much always trying to be ambassadors. It’s a privilege to be in spaces like Columbia Law. But at the same time, I never forget where I come from. In my first-year Property class, my section read Johnson v. McIntosh, the most renowned case for Native students because of how atrocious it was to our people in justifying the taking of Native American land. The decision in 1823 adopted the doctrine of discovery and held that Native tribes only had a “right of occupancy” and no title to the land. From that point on, I knew NALSA could be that connection for me to bring where I come from to the Law School. 

When I joined the National NALSA board, the structure had kind of taken a beating from the pandemic. As the only Native American law student-led 501(c)3 nonprofit, we have two annual conferences, a national moot court competition, a national writing competition, and a number of student scholarships and grants. And I thought, how about we just push it a little bit more? We made ourselves more present in all the communities virtually, relying on Zoom, Facebook, and Instagram. We also collaborated with our community partners, like the American Indian Law Center at the University of New Mexico and the Native American Pathway to Law Initiative at Arizona State University. 

Another goal of mine is that I want to center marginalized folks within our community, mainly the Two-Spirit LGBTQ+ relatives in our space, as well as the Black/Afro-Indigenous relatives. That is still a pressing issue, to make sure everyone feels included.

Columbia Law’s seminar in Native American Law is usually oversubscribed. Why do you think that course and other NALSA extracurricular opportunities are popular?  

Benally: You can’t speak about the law without understanding history. And I would say that most law students know that learning about the history of how this country was set up should involve Native people. And so I think there is an appetite for learning about that.

Lesansee: A number of the students are looking to do judicial clerkships and are looking to take courses related to constitutional law—and all of these Native law cases go to the Supreme Court and are decided at that level, not the state. But it also comes down to a lot of students just wanting to know more about Native law because they’ve never had the opportunity to learn.

The NALSA spring break caravan, which has gone to Wisconsin for the past couple of years to provide will-writing services to Native tribal members, is also popular. That caravan is beloved not only by J.D. students but LL.M. students really love it because they don’t typically have any experience with Native communities.

What issues in Native law are most pressing to you right now? 

Benally: One of the more interesting issues is the personhood rights that tribes give nature, for example wild rice—or manoomin—up in the Great Lakes area or the salmon in the Pacific Northwest. That’s something that hasn’t come to a head until recently. I’m hoping that more jurisdictions pursue that line of legal reasoning. 

Lesansee: An area that I think will be of interest in the next four years is the possible degradation of sacred sites. President Biden was able to use the Antiquities Act to safeguard Bears Ears National Monument. It’s been a collaborative effort by numerous tribes in the area, including ours, to really safeguard that sacred space. What’s really concerning for a lot of Indian Country now, with the new administration coming in, is that it’s assumed there will be even more battles over the protection of lands, resources, tribal sovereignty, and services that many of our tribes and families depend on—all of which are based on treaty obligations and our government-to-government relationship with the federal government. 

Eldred, your legal focus is Native intellectual property rights. How did you choose that area of study?  

Lesansee: When I was in France earning a master’s degree at the Sciences Po Paris School of International Affairs, there were numerous auction sales of Pueblo and Hopi sacred items in Paris auction houses. These were pre-20th century items that are never, ever found outside of my communities. That really sparked an interest in me: What can we do better to support Native tribes in protecting their cultural heritage? 

The United States IP structure—whether copyright, trademark, or patents—is based on who owns what. These frameworks are not made for tribal nations because they always try to find the main author, the main owner. In our languages, our beliefs, our customs, and our traditions on IP materials, we’re always communal. Tribes are starting to realize that our most precious things are out there, and we don't necessarily have a way to combat it. The access to digital platforms has really exacerbated the issue of intellectual property rights, particularly audio and visual recordings. Native cultural dances, cultural beliefs, even languages are all online. And there have been bad actors who have tried to market it and profit from it.

Benally: Intellectual property issues are also seeping into the protection of traditional knowledge. So you have medicines that a tribe knows comes from this particular plant, and they’ve been using it for generations. But you have somebody from outside that community, a non-Native person, who learns about the medicinal properties of this plant. A pharmaceutical company finds the medicinal properties and starts producing that in a drug-based form. And so they’re able to copyright that. How does that protect traditional knowledge? Again, the communal-ownership issues make it difficult.

Lesansee: My dream is that tribal nations will be able to create their own protocols, regulations, or even their own statutes in their tribal code about protection of their IP. And have that be reaffirmed on an international level. I want to see how we can lift tribal sovereignty to the highest levels of international spaces. 

Lesansee: The question I want to ask you, Professor Benally, is if you knew someone who grew up as you did in the Navajo Nation in New Mexico, and they were starting here at Columbia Law School, what would be your dream for them? What should they take advantage of, and what would you hope that the Law School would provide to them?

Benally: I would make sure that they knew that they have a Native community here. Secondly, take advantage of all the programs. I did the Human Rights Internship Program. I was able to go to New Zealand and learn about Maori there. That made my understanding of international Indigenous law and policy a lot more robust than it would have been otherwise. Take advantage of the Office of Public Interest/Public Service Law and Careers. And then lastly, try not to get discouraged if Indian law isn’t mentioned in classes. You’re going to learn important things in those classes that may or may not apply directly to Federal Indian Law, but they will help with your practice later on. 

Benally: Eldred, if you could have alumni support for NALSA and Native students, what would that look like? Do you have any ideas on how we as alumni could help rally our contingent?

Lesansee: I would love for the Native alumni of Columbia Law School to come back to the Law School and have these types of conversations with the whole community. There are so many alums that I meet just by happenstance because we’re not yet connected formally. Native alumni are doing such phenomenal things; they’re not only awesome practitioners of the law, they’re also leading. Columbia has a tradition of producing Native American leaders, and hopefully, when I graduate, I’ll also be included in that. 

This interview has been edited and condensed.