Jessica Roberts, an associate in Davis Wright Tremaine's Business & Transactions Practice, draws on her personal background and knowledge of federal Indian law and tribal law to help clients transcend cultural barriers when doing business with Indian tribes. As a member of the Cherokee Nation, Jessica is committed to giving back to her community and to honoring her heritage. She shares how that heritage has informed and inspired her personal journey.

Q: You are a member of the Cherokee Nation. Tell us about your background and relationship with your cultural heritage.

Jessica: There are actually different iterations of the Cherokee: the Cherokee Nation in Oklahoma, the United Keetoowah Band of Cherokee Indians, and the Eastern Band of Cherokee Indians in North Carolina. The Cherokee originally lived in the East, but many ended up in Oklahoma after surviving the Trail of Tears. The Trail of Tears refers to the forced removal of around 60,000 Indigenous people from their ancestral homelands in the South – Georgia, Tennessee, Alabama, North Carolina, and Florida – to Oklahoma. My ancestors came from Georgia during the forced resettlement to Oklahoma.  

Under the Dawes Act of 1887, tribal communal landholdings were divided into allotments for Native American heads of families and individuals who were identified in a census and then listed on an official roster, known as the Dawes Roll. I have family ancestors on the Roll, and, as a result, I am an enrolled member of the Cherokee Nation.

Q: How did your personal journey to embrace your culture inform your career decisions?

Jessica: I started working for the Office of Indian Education in a very informal capacity as an academic advisor when I was living in North Carolina. I worked with Native kids from a couple of tribes in the area, helping them to develop their writing skills and preparing them for college. However, I realized that work didn't get to the root of the problem. There was no stable housing, reliable transportation and, for girls, access to menstruation products – all things that actually enable children to go to school every day. So that was my moment – when I realized that if I went to law school I could do more for my community. One of the reasons I choose to attend Seattle University Law School was because of their Indian law program. I made the study of Indian law my focus and was Editor-in-Chief of the American Indian Law Journal.  

Q: Explain to our readers the legal status and rights of Indian tribes.

Jessica: Tribes are sovereign nations. While there are some limited circumstances when U.S. federal law may apply, for the most part tribes are like separate countries – countries within the United States. Some people complain that tribes get special treatment or special rights. But they don't say that about Canada or France or any other sovereign nation.  

Tribes also have hunting and fishing rights that extend beyond their tribal lands. These rights were not "granted" by the United States government. They are inherent to the tribes. The actual language does matter. The tribes have always had those rights and they retain those rights.  

Even though tribes have the right to regulate themselves in many circumstances and retain certain rights, the system is still very paternalistic. The United States holds Indian land in trust and any land transfer has to go through the Bureau of Indian Affairs. In Cherokee Nation v. Georgia (1831), the Cherokee argued that they were a foreign nation and the laws of Georgia did not apply to them, thus they should not be subject to the forced removal. The Supreme Court ruled that the Cherokee were not a foreign nation, but rather, a "domestic dependent nation" and the relationship between the tribes and the United States was that of a "ward to a guardian." Even though there have been several developments, particularly in the last 50 years, to return sovereignty to tribes, the ward-guardian structure remains intact.

Q: Tell us about some of the obstacles American Indians face.

Jessica: I think it's important to understand that not all tribes are the same. In Washington State, we have some fantastic examples of vibrant, wealthy tribes that have done an admirable job using the resources they have to generate business and provide housing and other resources to the elders and other vulnerable members of the tribe. But in other places, like certain areas in Arizona, some tribes don't even have running water or transportation and can't participate in the democratic process because they can't get to a polling place.

Q: You were recently elected President of the Northwest Indian Bar Association (NIBA), covering Alaska, Idaho, Oregon, and Washington. What are your priorities in that role?

Jessica: One of our key functions is to provide funding: stipends for Native law students who are studying for the bar and scholarships to attend law school. Many students may be living at home and helping their families and they may have jobs in order to support their families financially. Providing financial support gives them the independence to study and take the bar or to devote more time to law school.

We also have a program of student ambassadors attending Northwest law schools. The ambassadors act as liaisons between NIBA and the law schools. They identify what the students need and how we can help them, such as with funding to attend conferences and support for their journals and independent study.

And overall, our goal is always to make the Native legal practitioner feel seen and supported. We don't often get to be in a room full of other Native people. So, we organize events where we bring in traditional music and where people wear traditional dress and jewelry. It feels great to be part of a community.  

Q: How do you use your knowledge of Indian law in your own practice?

Jessica: DWT represents some tribes, and, in those cases, I work directly with tribal leaders and members. But more often, I represent clients who are not Indian but who are doing business with a tribe and need to understand Native interests. These matters frequently relate to land transactions, which involve property adjacent to Native lands. In those cases, I help our clients understand the legal rights of the neighboring tribe, including their inherent fishing and hunting rights which extend beyond the borders of the reservation. I help clients navigate the consultation process with tribes when a particular transaction may affect those rights. Clients are often surprised at how willing the Native community is to work through these issues when the client approaches the transaction with the intention of being a good neighbor to the tribe.  

Another issue that comes up is ownership of intellectual property. Some tribes haven't adopted their own intellectual property laws and federal law doesn't apply. So, questions as to ownership of certain rights can be tricky, but, in many situations, clients will try to work out an arrangement and do the right thing even if they aren't legally obligated to do so.  

I never take on any work that is adverse to a tribe, and I make it clear at the outset that if an engagement becomes adverse, I can't continue to work on it. My colleagues and clients respect that position.  

Q: What advice do you have to people who do business – or want to do business – with Indian tribes?

Jessica: Approach tribal leaders like fellow humans, treat them with respect, and be aware of their culture. For example, you wouldn't invite a leader from a dry reservation to have a drink. And don't underestimate their business acumen. Many tribes are very sophisticated and run highly successful businesses.  

On a more personal level, when you are buying Native goods, be aware of the difference between Native made versus Native inspired. The Indian Arts and Crafts Act makes it illegal for people who are not actually Native artists to claim a product is Native made. If you want to buy something that is Indigenous made, whether from an individual or from a national chain store, take that extra step to make sure that you're really buying from someone who is Indigenous.

When businesspeople approach transactions with Native Americans with an open mind, respect, and a willingness to learn, it is a fulfilling and productive experience for everyone.

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