Clinton to speak at upcoming NMAI symposium

Monday, September 15, 2014

 Robert Clinton

Foundation Professor of Law Robert N. Clinton will speak at a symposium titled Nation to Nation: Treaties Between the United States and American Indian Nations. The event will be held at the National Museum of American Indian in Washington, D.C. on September 18.

During the event there will be a book releases celebration and the opening of a new museum exhibit, both with the same title as the symposium. Clinton contributed a chapter to the book titled Native Nations: Iconic Historical Relics or Modern Necessity? Guests can enjoy a preview of the exhibit followed by a book signing.

Clinton teaches and writes about federal Indian law, tribal law, Native American history, constitutional law, federal courts, cyberspace law, copyrights, and civil procedure. His publications include numerous articles on federal Indian law and policy, constitutional law, and federal jurisdicition. He is the co-author of casebooks on Indian law and federal courts, The Handbook of Federal Indian Law (1982 ed.) and multiple editions of American Indian Law: Native Nations and the Federal System, Colonial and American Indian. He also is a Faculty Fellow in the Center of Law, Science & Innovation.


The symposium proceedings are now posted on YouTube. The URL for the playlist is


Clinton speaks at Federal Bar Association Indian Law Conference

Friday, April 25, 2014

Robert N. Clinton, Foundation Professor of Law, recently presented at the 39th Annual Federal Bar Association’s Indian Law Conference in Santa Fe, N.M.

The conference, “Practicing Indian Law in the Digital Age explored the impact new technology is having on the legal environment of Indian law and policy.

Clinton gave a lunchtime speech at the conference commenting on the final report of the Indian Law and Order Commission entitled “A Roadmap for Making Native America Safer.”

Clinton teaches and writes about federal Indian law, tribal law, Native American history, constitutional law, federal courts, cyberspace law, copyrights, and civil procedure. His publications include numerous articles on federal Indian law and policy, constitutional law, and federal jurisdiction. He is the co-author of casebooks on Indian law and federal courts, The Handbook of Federal Indian Law (1982 ed.) and multiple editions of American Indian Law: Native Nations and the Federal System, Colonial and American Indian. He also is a Faculty Fellow in the Center for Law, Science & Innovation.

Clinton Quoted in Slate on Effect of Tribal Gay Marriage

Robert Clinton

Robert Clinton, Foundation Professor of Law, recently was quoted in an article about a Native American gay wedding written by Mark Joseph Stern for Slate magazine.

The article, “How Did a Gay Couple Legally Marry in Oklahoma?” tells the story of two Native American men who were wed under tribal law in a state where same-sex marriage remains formally banned.

Concerning whether the marriage will be recognized by the state of Oklahoma, Clinton said the current patchwork of marriage laws presents an intriguing ambiguity. He said that as a general rule, every state grants respects other states’ laws and rulings, but added that in 1939, the U.S. Supreme Court recognized a state’s right to ignore another state’s law if it seriously contravened its own—the so-called public-policy exception.

“The public-policy exception has never been litigated in application to gay marriage, but it seems possible that tribal gay marriages should be recognized in most states that don’t have strong public policy to the contrary,” Clinton said.

To read the full article, click here.

Clinton teaches and writes about federal Indian law, tribal law, Native American history, constitutional law, federal courts, cyberspace law, copyrights and civil procedure. He is an Affiliated Faculty member of the ASU American Indian Studies Program. He also is a Faculty Fellow in the Center for Law, Science & Innovation.

Clinton Speaks at University of New Mexico Sandoval Conference

Robert N. Clinton

Robert N. Clinton, Foundation Professor of Law, recently spoke at the University of New Mexico School of Law, for a conference commemorating United States v. Sandoval.

The conference, “One Century Later: Federal Authority in Indian Country, Indian Identity and Status and the Rights of Defendants in Tribal Court,” explored the decision, litigation, aftermath and impact of United States v. Sandoval, which granted federal Indian statutes to the Pueblo people.

Clinton spoke on a panel titled “Sandoval’s Impact on Federal Authority in Indian Country.”

Clinton teaches and writes about federal Indian law, tribal law, Native American history, constitutional law, federal courts, cyberspace law, copyrights, and civil procedure. His publications include numerous articles on federal Indian law and policy, constitutional law, and federal jurisdiction. He is the co-author of casebooks on Indian law and federal courts, The Handbook of Federal Indian Law (1982 ed.) and multiple editions of American Indian Law: Native Nations and the Federal System, Colonial and American Indian. He also is a Faculty Fellow in the Center for Law, Science & Innovation.

Hopi Appellate Court Reaffirms Village Sovereignty

Following up on its earlier Bacavi decision, the Hopi Appellate Court issued a decision on September 10, 2013 interpreting the Hopi Constitution in Duwahoyeoma v. Hopi Tribe, No. 2012-AP-0002. Specifically, the Court reaffirmed the aboriginal sovereignty of the separate Hopi and Tewa villages that formed the basis of its Bacavi decision and held in Duwahoyeoma that Article III, Section 3 of the Hopi Constitution reserved exclusive jurisdiction to the respective Hopi and Tewa Villages to determine how they would be governed and, consequently, that this provision precluded the Hopi Courts from deciding purely internal village disputes as to the form of governance or the legitimacy of Kikmongwi or other traditional religious leaders. The Court did note, however, that the Hopi courts can interpret the Hopi Constitution and otherwise review claims involving the decisions of the Tribal Council or other administrative officers even though such decisions may implicate questions of village governance. Invoking the latter jurisdiction, the Hopi Appellate Court further found that the provision of Article III, Section 3 of the Hopi Constitution that provides that traditional Villages “shall be considered as being under the traditional Hopi organization, and the Kikmongwi of such village shall be recognized as its leader” did not mandate or require the Kikmongwi to serve as the daily governing authority of any Village, but, merely, recognized his traditional role as leader and spokesman for the Village, a role akin to head of state, to communicate village policy or decisions to the Tribal Council, other Villages, or other parties. Finally, the Court interpreted Article III, Section 4 of the Hopi Constitution, which authorizes in certain circumstances the calling of an election run by the United States Department of the Interior Superintendent to change the form of Village government, to not curtail or eliminate preexisting Village sovereignty to change forms of government by other means that do not involve the federal government. Thus, the Court concluded that when Article III, Section 4 stated that Villages “may” use the described federally supervised election procedure, it provided one, but not the only, means of accomplishing Village governmental change but did not indicate that Villages must use that procedure as the exclusive means of making such governance changes. The full opinion is available here.

Professor Clinton Interviewed on Baby Veronica Case

Professor Clinton was interviewed about the Baby Veronica ICWA case that the Supreme Court heard yesterday on Due Diligence.

A copy of the radio interview is located at:

Robert Clinton Interviewed on AZ-TV on Tohono O’odham Casino Proposal

AZTV7/Cable 13, Me-TV 7.2, HSN 7.3, Phoenix-Prescott, AZ

Eulogy for Jennifer Pavelich Clinton

Eulogy for Jennifer Pavelich Clinton

by Sheldon F. Kurtz

June 17, 2010

When Jenny Clinton died last Monday, a light was prematurely extinguished. a light that for 35 short years brightened our lives in so many ways. I was privileged to have that light in my life almost from the moment Jenny was born and, while each of us knew Jenny in our own but in different ways, all of us feel the pain of this immeasurable loss.

Jenny Clinton was born on November 2, 1974 and for a brief time after her birth, having been born second, she was simply known in the nursery as Twin B. For Jenny, this began a tradition that lasted throughout her life. She never made or was even rumored to have made an early appearance.

From the get-go, Jenny and her beloved sister Erica were inseparable. Fittingly, as the “big sister,” Erica was always there –in the early years with a bump or a knock down, but later always with an assist, a helping hand, and unconditional love.

Pat and Bob, of course, had their hands full with the twins, who soon after their births became triplets when their brother Seth came into their home.

For the Kurtz family, the triplets were our other children, particularly in the pre-junior high school days when we would see them almost every day. They were always a welcome addition to our household. None of the Clintons or the Kurtzes will ever forget turtle races in Minnesota or Fourth of July parades in downtown Iowa City where the five kids would be dressed in outlandishly created costumes. And, no holiday was complete unless we were all together. With us, as with others, Jenny assumed the role of the crowd pleaser with her incredible smile and gaiety.

After Lucas elementary, came Southeast Junior High and then City High. Because Jenny was a typical teenager, this is when she began to come into her own and all the parents in this room know what I mean by that. Throughout these years, Jenny always wanted to take control and she was always competitive. She loved creating clubs although she insisted she be both the president and the treasurer. She always had a keen sense of how she wanted things done and rarely brooked dissent.

She was the midget on the basketball team but played the game like she was a champion. This need to compete and be successful was exhibited in her early life when she and Erica sat in those bouncing seats suspended from the wall. Jenny was always the faster bouncer.

After graduating from City high, Jenny went off to Cornell College in Mt. Vernon where she met Joe. From their first encounter, Joe showered upon Jenny his unfailing affection and devotion–year after year. No man could have provided more support for his wife (and I might add better food) than Joe, and we, who loved Jenny, love him for all he did for her. And, then there was Noah, their special blessing, who daily brings joy and pleasure to the lives of Grandma Pats, both the one on Pinecrest and the one up on the hill. Noah, in his own way, early recognized the roles of his parents in his life. As he once said, “mommy makes the rules, daddy makes the dinner.” More recently in commenting on Jenny’s rule making he told Grandma Pat on Pinecrest: “Sometimes mom can be a pain in the butt.” He was right.

After college, more education followed, but birth order had to be respected. So, first Twin A, Erica went to law school with Twin B, Jenny, close behind. Here, I must say they did diverge, for Erica became the social activist committed to protecting the rights of the defendant in the criminal justice system while Jenny became the tough on crime hardliner. If I didn’t know better I’d swear she was a ghost writer for Law and Order. And, she loved her job with the Linn County County Attorney’s office. [Added at the service: And, I notice all of the peace officers in the room this evening.  I remember Jenny telling me how excited she was to ride around in a police car chasing criminals.  With the exception of something I’ll mention shortly it was one of her most memorable life experiences.] I still remember her excitement when she told me about the first case she tried. Imagine my surprise when it turned out to be a minor misdemeanor rather than a Class A felony. But, in her mind, they were the same. Going after the bad guys, making them pay and always watching out for the victims. She was so proud of her lawyering accomplishments and we were all so very proud of her.

Now Jenny loved to talk and debate and had opinions about everything. And she really didn’t care if you agreed with those opinions. She believed that if you were arrested you probably were guilty. She had no sense of geography and had a hard time placing states and countries in their proper places on the map. Yet, she was clear that Iowa City was the center of the universe and that everyone she loved should live here.

As a teenager Jenny developed a crush on Michael J. Fox and when she heard he was a republican she thought should must become one too. That one really hurt me.

And, while not wild about flowers, she loved animals, particularly dolphins. One of the great experiences of her life was going to dolphin camp in Florida and swimming with and learning about dolphins. She hated all mistreatment of animals. Perhaps it was her love of animals that caused her to become a vegetarian which is ironic given that throughout her life she hated eating vegetables.

Those of us who knew and loved Jenny also know that her light could dim. But out of respect for her own openness in talking about her mental illness, I am going to say a very painful and sensitive word: Suicide. We can never truly know and may never fully understand what led Jenny to take her life, but we know that if she could, she would have erased from society the stigma that exists around mental health issues, so that others could speak more freely about their burdens. And to those of you looking for a way to honor Jenny, I encourage you to make a contribution in her honor to the National Alliance on Mental Illness. I know she would have wanted this.

For Pat and Bob, I cannot imagine the pain and sorrow you feel. You gave her life, you gave her love, and you gave her support. The best of Jenny comes from you. And Joe, I know how much Jenny appreciated all of the love and support you gave her over so many years.

For Jenny, the light will never dim again, for those of us she has left behind, it is very dim indeed. But sadness is always temporary and it will pass. And, when it does, what will be left in our minds and hearts will be the memories of Jenny’s light that could fill a room with her joy and exuberance.

Jenny, may you now rest in peace, and may you light up the skies with your brightness as you lightened up our lives here on earth.

In Memory of Jennifer Pavelich Clinton

Jennifer Pavelich Clinton

November 02, 1974 – June 14, 2010

Iowa City, Iowa

Jennifer Pavelich Clinton, 35, of Iowa City chose to end her life Monday, June 14, 2010.  Memorial services will be held at 6 p.m. Thursday, June 17, 2010, at Gay & Ciha Funeral and Cremation Service in Iowa City with Rabbi Jeffrey Portman officiating. There will be a time of fellowship and support at the funeral home following the services. Memorial donations can be made in her memory to NAMI or Nature Conservancy. Online condolences may be sent for her family through the web @

Jennifer was born November 2, 1974, in Iowa City, the daughter of Robert Clinton and Patricia (Abel) Clinton. She attended schools in the Iowa City School District, graduating with the Class of 1993 from City High School. She went on to receive her Bachelor of Special Studies degree from Cornell College in 1997, and her law degree from the University of Iowa Law School in 2002. She got her dream job in 2004 as a prosecuting attorney at the Linn County Attorney’s office, where she remained employed until her death.

Jennifer will be remembered as a funny, passionate and caring woman. We fell in love with her smile and her laugh, and were captivated by her dedication to those she loved. Jennifer was extremely proud of her law degree, and devoted her career to assisting those who were victimized by crime. Her other passions included animal welfare and nature conservation.

Her family includes her husband, Joseph Clinton Pavelich; their son, Noah; her parents, Patricia Clinton of Iowa City; and Robert Clinton of Phoenix, AZ; twin sister, Erica Clinton and her husband, Brent Never of Kansas City, MO; brother, Aaron Seth Clinton of Madison, WI; and grandparents, Phyllis and Fred Clinton of Farmington Hills, MI.

We could never have had enough time with Jennifer, but we will always treasure those moments we did have.

Code of Indian Offenses

Chief Sitting Bull For years scholars have described the Code of Indian Offenses, first adopted by the federal government in 1883, as a reservation criminal code designed to cover lesser misdemeanors. The Code of Indian Offenses helped create the Courts of Indian Offenses, which at their height imposed on perhaps two-thirds of the nation’s Indian reservations a federally dominated western style court composed of tribal members picked by and responsible to the federal Superintendent of the Reservation. The few surviving Courts of Indian Offenses, many of which are Oklahoma, are now known as CFR Codes. The Code also helped establish the Indian Police, also composed of tribal members selected, paid, and supervised by the federal Superintendent of the Reservation. Perhaps the most notorious act of the Indian Police involved their murder of Tatanka Iyotake (Sitting Bull — pictured above) the great Hunkpapa Lakota holy man and leader in 1890 at Standing Rock as a result of federal concerns over his support for the religious revitalization Ghost Dance movement among the Lakota. Clearly, the Courts of Indian Offenses and the Indian Police involved efforts by the federal government to substitute a federally controlled western style colonial government for the traditional governance structures and leadership of the tribes. A good summary of that effort is found in William T. Hagan, Indian Police and Judges: Experiments in Acculturation and Control (1966).

Considerably less attention has been paid to the actual content of the Code of Indian Offenses. About a decade and half ago, my efforts to locate the original copy paid off. When I received it, I was startled to discover that very little of the Code of Indian Offenses actually dealt with matters which would be classically regarded as crimes in western societies then or today. In fact, most of the Code of Indian Offenses was directly aimed at outlawing Indian culture. Thus, the practice of medicine men, Indian dances, the giving of gifts to compensate and honor a family for the a daughter given in marriage, potlaches and other traditional reciprocal gift-giving, polygamy and other Indian customary practices were all made punishable offenses by the Code of Indian Offenses. In fact, the reference to other misdemeanors was the last item listed and the one to which the least attention was paid.

Also remarkable were the penalties prescribed in the Code of Indian Offenses. By the time of the Code of Indian Offenses was promulgated most of the nomadic plains tribes had been corralled onto reservations, early examples of internment or concentration camps. Their traditional hunting lifestyles had been effectively destroyed by such confinement, as well as the deliberate federally sponsored eradication of the buffalo (bison) on which they depended. This forced change in tribal economies resulted in the nation’s first welfare state, in which the tribal members became completely dependent on federal rations (the development of Indian frybread being the most obvious and long lasting by-product of this change in subsistence habits). In this context, the penalty prescribed by the Code of Indian Offenses for practicing traditional and customary ways often involved the denial of rations. Thus, the federal government’s message to tribal Indians in the late nineteenth century was crystal clear — abandon your traditional culture and comply with the Code of Indian Offenses or starve. The Code of Indian Offenses therefore was not an early criminal code for Indian Reservations, as it is sometimes portrayed, but, rather, the clearest evidence of a deliberate federal policy of ethnocide — the deliberate extermination of another culture.

The shocking evidence of such federal ethnocide is found in the federal government’s own words in the original Code of Indian Offenses. Because of the difficulty I originally had in locating it, I have chosen to publish it to the internet here.

The Code of Indian Offenses was finally amended when John Collier assumed the role of Commissioner of Indian Affairs in the administration of President Franklin D. Roosevelt in 1933. He eliminated all references to the bans on dances, such as the sacred Lakota Sun Dance, and other customary Indian practices. The modern incarnation of the Code of Indian Offenses is found at 25 C.F.R. Part 11 and it, unlike the original version, does provide a basic criminal code for lesser crimes committed by Indians on reservations covered by these provisions.