November 16, 2007
Law Firms and Legal Affairs November 2007
Laws across nations
ASU’s Indian Legal Program trains lawyers to practice on and off the reservation
By Debra Utacia Krol, Arizona Capitol Times correspondent
Myriad laws govern the intersection of American Indian tribes with the rest of the nation.
Among other issues, Indian law touches on land, water and environment, business and family. Gaming has become a hot topic, and many attorneys’ billable hours involve gaming ordinances and policies.
As tribal governments grow ever more sophisticated, experts on understanding the interaction of tribes with other governmental entities is paramount. More and more tribes and tribal members are doing business with non-Indian firms, making commercial codes, dispute resolution and contract law a must with Indian law attorneys.
Attorneys whose practice takes them into dealings with both tribal governments and individual Indians must have a firm grasp on not just federal, state and local laws, but on tribal ordinances. But where can attorneys and law students acquire the expertise necessary to navigate the maze of tribal, state and federal laws? They turn to schools like Arizona State University’s Indian Legal Program, headquartered at the Sandra Day O’Connor School of Law.
The program was established in 1988 to train attorneys in Indian law, assisting them in understanding how tribal laws differ from federal and state law – and how they resemble each other’s systems. Its mission includes providing legal education and public service to tribal governments, and helping support tribes in policy development. As one of the nation’s largest, the program provides its students with both a firm foundation in Indian law and a wealth of practical work experience.
“As people learn more about tribes and with all the economic development growth in Indian Country, the field of Indian law grows,” says Kathlene Rosier, the program’s director. “It’s exciting to see it grow. We see more and more people coming to do business on reservations, and it’s important to know how legal systems interact.” Rosier, a Comanche whose last position was tribal prosecutor for the Gila River Indian Community, oversees the program, which trains 10 to 15 native law students from the United States, Canada and Mexico and a number of non-Indians who sign up for the program’s Indian law certificate each year.
The school also holds a number of conferences, such as one in 2008 on the effects of 20 years under the Indian Gaming Regulatory Act, which in 1988 paved the way for tribal casinos in Arizona and other states.
Students in the program can develop their tribal law portfolios in several ways. In addition to ASU’s law degree, students can earn an Indian Law Certificate. The master of law, or L.L.M., degree in tribal law and government provides those who already have a juris doctorate (JD) or equivalent with an opportunity to increase their skills and knowledge specifically in the area of Indian law. For those who do not wish to practice law, but have a need or interest in tribal law, the master of legal studies or M.L.S. program provides students with the basics of law while allowing them to choose from elective classes to gain the tribal law knowledge they desire.
Attracting top talent
The school has also attracted some stellar academic talent. Professor Paul Bender is a well-known figure in Arizona jurisprudence. Bender, who has argued two dozen cases before the U.S. Supreme Court, is the dean emeritus of the law school.
Indian Legal Program Executive Director Rebecca Tsosie is acknowledged as one of Indian Country’s top attorneys. Tsosie, a Yaqui, is also an acclaimed legal scholar who serves as a Supreme Court justice for several tribal court systems. Tsosie has written and published widely on doctrinal and theoretical issues related to tribal sovereignty, environmental policy and cultural rights.
Professor Robert Clinton has co-authored several casebooks and articles on Indian law, including casebooks on Indian law and federal courts, and “The Handbook of Federal Indian Law” and “Colonial and American Indian Treaties: a Collection.”
Professor Kevin Gover, former Bureau of Indian Affairs head and a Pawnee, is headed back to Washington to take the reins of the National Museum of the American Indian. However, Rosier notes that he’s still associated with the law school, and will be back in town for the Indian Gaming Regulatory Act conference.
The program’s 100-plus alumni provide another valuable resource. Ranging from attorneys in private practice to the Arizona Governor’s Office and the U.S. Senate Committee on Indian Affairs, program graduates are making their mark in tribal law.
Beyond book learning
Then there’s the Indian Legal Clinic, where students gain the practical experience that books just can’t supply. Patty Ferguson-Bohnee has only served as the director since June, but is already busy with her students and caseload. “Learning can be in a vacuum,” says Ferguson-Bohnee, a member of Louisiana’s Pointe-au-Chien Tribe. “Indian law touches every area of life. The clinic allows students to go out in the community and see how what you do impacts the community and the people in that community.”
The clinic accepts cases in any court that are related to tribal, state or federal Indian law, and is open to all law students. “We have students who are interested in Indian law but do not intend to practice Indian law full time,” says Ferguson-Bohnee. “They find our courses and clinic very helpful.”
In fact, the only limitation on the clinic’s caseload is the physical distance of the court from ASU’s Tempe campus, which is why the majority of cases accepted are local, says Ferguson-Bohnee. “But they will travel for big cases.” Clients don’t even have to be from an Arizona tribe.
“Urban Indians living in the Phoenix area also have legal issues related to Indian law,” she says. Cases may range from child custody and Indian Child Welfare Act cases, to helping draft policy documents for tribal, state or federal governments.
Revamping Indian probate
One big issue that Ferguson-Bohnee’s team and the entire Indian Legal Program is tackling: probate. With recent changes to federal Indian probate laws, including the requirement that any Indian who owns allotted property within reservation borders have a written will to prevent further “fractionation” of land, Indian law practitioners are learning how to address the new policies and provide support to tribes in rewriting probate ordinances.
Students’ motivations vary, but all appear to have a passion for the law. Nikki Borchardt, a member of the Southern Paiute Tribe of Utah, has a background in ethnography, but she always knew she was headed for law school: “My aunt was the tribal chairwoman,” says Borchardt, a second-year student. “I knew there was a need for lawyers.” She pushed to keep her grades high to ensure entry into a good school. “I worked as an ethnographer and archaeologist” before going to law school, she says. Borchardt intends to someday return to cultural resources work.
“This is just the next step,” she says. “We’re starting to see how Indian law impacts every aspect of life.” Borchardt also praises the active role the program’s alumni play in helping students with networking and support.
Raymond Campbell of the Gila River Indian Community decided he didn’t want to work in a lab and opted for law. “My undergrad is in biochemistry,” the second-year student says. “I served an internship in the U.S. Senate Finance Committee and decided on law instead. I’m interested in marrying science and technology to the practice of law.”
Mary Modrich-Alvarado, Jicarilla Apache/Mayan, decided on ASU because it was close to her New Mexico home. The third-year student who has a business degree was undecided what to do after graduation. “I was talking with my sister, guessing what to do next and we started talking about law,” says Modrich-Alvarado, who also intends to actively practice after finishing her degree.
Dreams of a Navajo Nation-based law firm
Jerome Clark leaves his wife and two children at home to make the five-hour drive from Gallup, N.M. each week to attend law school. Clark, a Navajo, already has an MBA but decided he needed more tools to spark economic development. “I wanted to evaluate how our Navajo laws interact with economic development concepts, how the Navajo Nation works.”
Clark hopes to use his legal education to help resolve underlying issues, such as land use policies to build a strong, sustainable economic base in his home. “My goal is to practice at least two or three years and then open a practice in the Navajo Nation.”
In order to practice at Navajo, however, Clark, a third-year student will have to jump through some unique hoops. “I’m going to take the Arizona, New Mexico and Navajo Nation bar exams,” he says. Clark also wants to help change the perception many people still have about tribal courts. “Navajo Nation’s judiciary is independent,” he says. “We’re not new to the game.
“But some businesses are deterred from coming to the Navajo Nation because they are reluctant to be subject to Navajo Nation courts if a dispute arises. If we can show people how evolved our court system is and how our contract law is similar to theirs, it may help attract more off-reservation business.”
The field of Indian law is growing across the nation. More than 15 other universities offer Indian law certificates or have legal programs geared to tribal law. Two states – New Mexico and Washington – now have Indian law questions on their bar exams. Arizona’s Indian law practitioners would also like to see tribal law placed on the Arizona bar exam, and the Native American Bar Association is working toward that goal.
“With over 560 tribes in the U.S., and people just want to learn more about them,” says Rosier, the Indian Legal Program’s director “It’s exciting for us because the more people who know about how tribal laws work, the better.”