Part 2: Teaching and Writing
The impact of Charles Wilkinson’s work as an advocate for tribes has been far-reaching, said Rebecca Tsosie, Regents Professor of Law and co-chair of the Indigenous Peoples Law and Policy Program at the University of Arizona’s James E. Rogers College of Law. “Many citizens think of Indian tribes and Indian people as these distinctive ethnic and cultural groups who have some relationship to the land, but they don’t necessarily think of them as sovereigns,” Tsosie said. “The tribal sovereignty idea blossomed in the latter part of the 60s and 70s. Charles was at the front of that, on the legal side.”
Even now, Wilkinson said, he considers the notion of tribal sovereignty to be central to his life’s work and among his proudest professional achievements. “It’s one of the greatest notions that’s ever touched my mind,” Wilkinson said. “I wanted so much for people to understand the Indian way and how deep it is. It’s not better, but it’s a different way of knowing. There’s a bunch of different values in there, usually dealing with the land and family and so forth that they want to protect. The way to do it is through tribal sovereignty.”
Today, the concept of tribes as governments has driven a “comeback,” Wilkinson said. “It’s a very exciting place, Indian country,” he said. “They make laws and enforce them. They’ve made sovereignty real.” Tsosie explained that Wilkinson’s work also went beyond the mere concept of tribal sovereignty. “He’s always made it a point to show why tribal sovereignty is relevant to a lot of the West, or even all of the United States,” she said. “He’s framed it in a way [that] people understand where the duties [owed by the U.S. government to tribes] came from and how they ought to be discharged by the various [federal] agencies.”
By 1975 Wilkinson entered teaching, in part because he grew tired of extensive travel as a NARF lawyer. Joining the law faculty at the University of Oregon School of Law in Eugene, Ore., he convinced the dean to let him teach public lands law instead of natural resources law and also took on instruction in federal Indian law and water law. “It wasn’t being taught in any school,” Wilkinson said. “It was a changing time in law school, as it was for law in so many fields. It was a really exciting time in that way.” He noticed that students sought out his classes. “Oregon students craved public lands and Indian law and I loved teaching out there.”
While still a faculty member at Oregon, Wilkinson co-wrote two seminal casebooks, Federal Indian Law: Cases and Materials and Federal Public Land and Resources Law. He, edited the then-most important work on Indian law – Felix S. Cohen’s Handbook of Federal Indian Law, first written during the 1930s — and co-wrote the seminal guide to the nation’s bedrock law for management of the national forests — Land and Resource Planning in the National Forests — and wrote American Indians, Time, and the Law: Native Societies in a Modern Constitutional Democracy.
The latter book is still the ideal introduction to the subject for many law professors. “I know I am not alone when I say that I am planning to teach federal Indian law and public lands this fall and as I prepare to do that, nearly every year, I begin with American Indians, Time and the Law,” said Monte Mills, a professor at the University of Montana’s Alexander Blewett III School of Law, and co-director of the school’s Margery Hunter Brown Indian Law Clinic, and a former Wilkinson student. “To me, it is the single best resource for anybody [to] understand federal Indian law. Not because it’s a legal textbook but because it presents and explains the concepts in the field in such a way that anyone can pick up that book, read it and at least have a functional understanding of the complexities of federal Indian law.”
Wilkinson also introduced a lasting innovation to law teaching — the field learning expedition — while a member of the law faculty at Oregon. “I realized that law was seeming so narrow to me,” Wilkinson said. “I’d been teaching appellate cases, which really are the law, but it’s not real like it is when you’re out on the ground.” So he took students to the other side of the Cascades for a week so they could study the problems of the Columbia River Basin and the perspectives of those who live and work there. “We met people and talked about controversies,” Wilkinson said. “That was the subject of the course, that watershed.”
In 1987, Wilkinson and his family decided it was time to return to Boulder. After arriving at the University of Colorado Law School, he began to turn toward the writing that eventually grew his acclaim as a scholar of the unique body of law so important to the West and that he had been teaching for more than a decade. Inspired by Wallace Stegner — “the greatest writer about the West,” he said — Wilkinson realized that the Pulitzer Prize and National Book Award winner provided essential insights on the region.
“Reading him, I realized ‘that’s what’s real,’” he said. Diving into wide-ranging reading of literature, history, science — “you name it, I read it” — Wilkinson soon saw how the policy conundrums of the region could be understood and explained through another window. “They made me realize that law was so formal and so impersonal,” he said. “I wanted to find ways to deal with that.”
By 1992, Wilkinson published his first book for a general audience — Crossing the Next Meridian: Land, Water, and the Future of the West. “I had this idea about the ‘Lords of Yesterday’ and how present day activities in the West were governed by laws fashioned in the mid-1800s overgrazing, mining and so forth,” he said. “They still were the laws. People didn’t realize it, I thought.” After finishing a book of essays the same year — The Eagle Bird: Mapping a New West — he committed himself to making general audience writing a staple of his work. “I decided that reaching general audiences and presenting legal issues to them was a very effective way of maybe influencing laws that you care about.”
In 1999 Wilkinson introduced readers to the Colorado Plateau in Fire on the Plateau: Conflict and Endurance in the American Southwest. During the next year Wilkinson examined the story of native American fishing rights in the Pacific Northwest in Messages from Frank’s Landing: A Story of Salmon, Treaties and the Indian Way, and, in 2005, wrote Blood Struggle: The Rise of Modern Indian Nations, which surveyed the modern indigenous Americans’ sovereignty movement.
The books, which may soon include a look at the 1970s Boldt decision that recognized and enforced the treaty rights of Native Americans in Washington state to harvest wild salmon, are highly regarded by Wilkinson’s colleagues. “I think those books will have an enduring legacy,” said William Boyd, a UCLA law professor who worked with Wilkinson as a CU Law School faculty member between 2008-2016. “You get a sense for his deep love and respect for the land and its people.”
Wilkinson didn’t limit his effort to grow understanding of the laws that govern the West’s peoples and places to the written word. He introduced another innovation to the legal academy in the form of the seminar teaching method. Bringing guests, including former Secretary of the Interior and Arizona governor Bruce Babbitt and Stewart Udall, who led the Department of Interior during the Kennedy and Johnson administrations, to talk with his students about the practicalities of Indian, public lands and water law, he helped students to grow in their grow their appreciation of the region’s original inhabitants and the diverse and beautiful terrain of the West.
Before joining the school’s faculty in 1987, Wilkinson also helped build CU’s Natural Resources Law Center as a board member. Working with CU Law School colleague David Getches, who was lead counsel in the landmark United States v. Washington case that recognized a native American treaty right to harvest wild salmon, after coming to Boulder, Wilkinson helped to develop what he calls “preeminent center for natural resources in the West.” By 2013, the center would be renamed for the tandem and is now known as the Getches-Wilkinson Center for Natural Resources, Energy and the Environment. “Colorado is far better off for his leadership, which is why the University of Colorado Law School renamed its Natural Resources Law Center after him and his longtime friend and collaborator, David Getches,” said the state’s Attorney General, Phil Weiser.
Wilkinson continued to innovate in his methods of teaching, including with the seminar. “It’s been wildly successful, just a wonderful program,” he said. “It just changes everything to go out and instead of hearing about the Wind River Range and the wolves, you’re up there and talking with the people that are making the decisions and hiking. It brings law to life.” Wilkinson said that conversations with Native Americans are always part of the adventure.
Beyond the pen and the classroom, inside or outside, Wilkinson is a regular feature at the Department of Interior and the Department of Agriculture teaching, where he instructs employees. “The Interior Department needed upgrading on Indian law,” he said. “I had a lot of training sessions with them and I think it really helped.” He works with USDA Forest Service employees on understanding the National Forest Management Act, the agency’s organic act about which Wilkinson has extensively written. During the last years of the Clinton administration he served on the USDA Forest Service Committee of Scientists, which helped the agency to rewrite the National Forest Management Act forest planning regulations.
A board member at Grand Canyon Trust, the Northern Lights Institute, the Western Environmental Law Center and The Wilderness Society at various times in his career, Wilkinson has also been a key player in the effort to protect two Utah preserves: the Grand Staircase-Escalante and Bears Ears National Monuments.
Babbitt, then serving in President Bill Clinton’s cabinet as Secretary of the Interior, asked Wilkinson to help him come up with a plan to set aside the Grand Staircase-Escalante National Monument. Babbitt, Wilkinson said, was the driving force behind the designation. “He had this card,” Wilkinson said. “On one side, it had listed all the national monuments that Teddy Roosevelt did. On the other side was a big zero, which was how many [Clinton] had done. Clinton thought he could get some votes with this and he turned Babbitt loose.”
Nearly 20 years later, another opportunity to help craft a national monument in the Beehive State’s anthropologically significant landscape became apparent. “I worked with the five tribes that put Bears Ears [National Monument] together,” Wilkinson said. “Everybody says it anyway – I was a driving force behind that.” He drafted the proposal and, working closely with affected tribes, produced a document that articulated their aspirations for the preserve. “He really brought in that idea that the public lands are inclusive of the native communities, which is why they came up with that new structure of [the] Bears Ears [National Monument designation],” Tsosie said. “That would be a strong affirmation of indigenous self-determination.”
“I believe I’m a person who could have conceptual understandings of things and how to change them,” Wilkinson said, explaining how his work on Bears Ears helped to convince former President Barack Obama to establish it. “When I talked with [former] Secretary [of the Interior Sally] Jewell and other federal officials I think I had an understanding of what was going on with the monument and some of the unique things.”
The boundaries of both Bears Ears National Monument and Grand Staircase-Escalante National Monument were dramatically cut back by former President Donald Trump shortly after Trump took office in 2017, but Wilkinson is optimistic that President Joe Biden will restore them. “Biden really is committed to doing that,” he said. “He knows the issues.”
Editor’s Note: Law Week Colorado journalist Hank Lacey, a former practicing attorney, studied under John Leshy, and was his research assistant, while a student at Arizona State University’s Sandra Day O’Connor College of Law. He has known, and been a personal friend of, Reed Benson since 1993. Lacey became acquainted with Charles Wilkinson at a 1992 book signing.