ALUMNI: Hodahkwen (’02) Named Deputy General Counsel

Will Continue to Advise the Governor on Tribal Affairs

PHOENIX — Governor Janet Napolitano has announced that Marnie Hodahkwen, who has served as the Governor’s policy advisor for tribal affairs since August of 2004, has taken over as deputy general counsel to the Governor. Along with her new responsibilities, Hodahkwen will continue to be the Governor’s tribal affairs advisor.

“Marnie is a tremendously talented public servant, and Arizona has benefited from her excellent work in the past four years,” Governor Napolitano said. “I look forward to seeing all that she can do in her new position as deputy general counsel.”

As the Governor’s policy advisor for tribal affairs, Hodahkwen serves as the Governor’s liaison with 22 tribal governments and works in a wide variety of policy areas. Before joining the Governor’s office, she practiced law in the areas of commercial litigation and Indian law in Phoenix at the law firm Quarles & Brady, Streich Lang. She holds both her bachelor’s and law degrees from Arizona State University. A member of the Prairie Band Potawatomi Nation, Hodahkwen is one of the founding members of the Native American Bar Association of Arizona and serves on the Board of Directors of the Hopi Education Endowment Fund, as well as the Advisory Council of the Indian Legal Program at ASU’s Sandra Day O’Connor College of Law. Hodahkwen becomes deputy general counsel as Nicole Davis leaves the position for the state Attorney General’s office, in order to become the Section Chief of the Civil and Criminal Litigation and Advice Section of the Child and Family Protection Division. Davis has served in the Governor’s Office since the beginning of Governor Napolitano’s term in 2003.

2 New US Supreme Court Cases

Today, the Supreme Court granted cert in two Indian law cases:

Hawaii v. Office of Hawaiian Affairs, No. 07-1372

Petition for Cert:
Hawaii Supreme Court Decision: Office of Hawaiian Affairs v. Housing and Community Development Corp. of Hawaii, No. 25570 (Hawaii 2008)

Question Presented in Petition for Cert:

“In the Joint Resolution to Acknowledge the 100th Anniversary of the January 17, 1893 Overthrow of the Kingdom of Hawaii, Congress acknowledged and apologized for the United States’ role in that overthrow. The question here is whether this symbolic resolution strips Hawaii of its sovereign authority to sell, exchange, or transfer 1.2 million acres of state land–29 percent of the total land area of the State and almost all the land owned by the State–unless and until it reaches a political settlement with native Hawaiians about the status of that land.”

U.S. v. Navajo Nation, No. 07-1410

Petition for Cert:
Appellate Court Decision: Navajo Nation v. US, No. 06-5059 (Fed. Ct. 2007),
Prior Supreme Court Decision: US v. Navajo Nation, 537 U.S. 488 (2003)

Questions Presented in Petition for Cert:

“The Indian Mineral Leasing Act of 1938 (IMLA), 25 U.S.C. 396a et- seq., and its implementing regulations authorize Indian Tribes, with the approval of the Secretary of the Interior, to lease tribal lands for mining purposes. In a previous decision in this case, United States v. Navajo Nation, 537 U.S. 488 (2003) (Navajo), this Court held that the Secretary’s actions in connection with Indian mineral lease amendments containing increased royalty rates negotiated by the Navajo Nation did not breach a fiduciary duty found in IMLA or other relevant statutes or regulations. The court of appeals held on remand that the Secretary’s conduct breached duties linked to sources of law that had been briefed to this Court but not expressly discussed in Navajo. The questions presented are:
1. Whether the court of appeals’ holding that the United States breached fiduciary duties in connection with the Navajo coal lease amendments is foreclosed by Navajo.
2. If Navajo did not foreclose the question, whether the court of appeals properly held that the United States is liable as a mater of law to the Navajo Nation for up to $600 million for the Secretary’s actions in connection with his approval of amendments to an Indian mineral
lease based on several statutes that do not address royalty rates in tribal leases and common-law principles not embodied in a governing statute or regulation.”

Two Weeks until the IGRA Conference: Register Now

Indian Country’s Winning Hand: 20 Years of IGRA
October 16-17, 2008
Radisson Fort McDowell Resort & Casino
Scottsdale/Fountain Hills, Arizona
Visit the conference website to learn more about the conference and registration for the event!
Stay the weekend so you can attend NCAI!
65th Annual Convention and Tradeshow
Sunday, October 19, 2008 1:00 PM – Friday, October 24, 2008 1:00 PM
Phoenix Convention Center

NARF: Tribal Supreme Court Project Update

This information was provided by the Native American Rights Fund. Visit their website for more information.

New Supreme Court Term May Prove to be Another Difficult Period for Indian Country

WASHINGTON D.C.-The U.S. Supreme Court held its opening conference on September 29, 2008 and, as expected, granted review in two Indian law cases–United States v. Navajo Nation and State of Hawaii v. Office of Hawaiian Affairs–both of which involve lower court decisions favorable to Indian country. First, in United States v. Navajo Nation, the Court will review a decision by the U.S. Court of Appeals for the Federal Circuit upholding the United States’ trust responsibility to the Navajo Nation. This case is part of the on-going litigation between the Navajo Nation and the United States involving disputes surrounding the negotiation of royalty rate adjustments for coal leases entered into between the Navajo Nation and the Peabody Coal Company.

Second, in State of Hawaii v. Office of Hawaiian Affairs, the Court will review a decision by the Supreme Court of Hawaii which held that the State of Hawaii should be enjoined from selling or transferring “ceded lands” held in trust until the claims of the native Hawaiians to the ceded lands have been resolved. The Supreme Court of Hawaii based its decision, in principal part, on the Apology Resolution adopted by Congress in 1993 which gives “rise to the State’s fiduciary duty to preserve the corpus of the public lands trust, specifically, the ceded lands, until such time as the unrelinquished claims of the native Hawaiians has been resolved.” In 2000, while in private practice, Chief Justice Roberts represented the State of Hawaii in Rice v. Cayetano, a case involving the status of native Hawaiians in which the Court held against Native interests. No doubt, the questions presented in this case are of keen interest to the Chief Justice.

At present, the Tribal Supreme Court Project remains extremely busy as it prepares for oral argument on November 3, 2008 in Carcieri v. Kempthorne (challenge to authority of the Secretary to take land in trust under section 5 of the Indian Reorganization Act). The Project also is continuing its efforts to coordinate resources and develop strategy in support of a petition for cert involving the free exercise of Native religions under the protection of the Religious Freedom Restoration Act in Navajo Nation v. United States Forest Services (permit for ski resort to use recycled sewage waste-water to manufacture snow on the San Francisco Peaks — a sacred-site for many American Indian Tribes). As always, we are carefully monitoring cases of interest as they move through the lower courts.

Copies of briefs and other materials for each of the cases listed in the Tribal Supreme Court Project Update are available on the NARF website at

The Tribal Supreme Court Project is part of the Tribal Sovereignty Protection Initiative and is staffed by the National Congress of American Indians (NCAI) and the Native American Rights Fund (NARF). The Project was formed in 2001 in response to a series of U.S. Supreme Court cases that negatively affected tribal sovereignty. The purpose of the Project is to promote greater coordination and to improve strategy on litigation that may affect the rights of all Indian tribes.

We encourage Indian tribes and their attorneys to contact the Project in our effort to coordinate resources, develop strategy and prepare briefs, especially at the time of the petition for a writ of certiorari, prior to the Supreme Court accepting a case for review.

Quilt Auction to benefit ILP Scholarships

ASU College of Law and Indian Legal Program alumnus Marlene Jones (JD/MBA ’97) donated a beautiful quilt to the ILP to help raise scholarship funds for students and commemorate the 20 Years of the Indian Gaming Regulatory Act. The quilt contains ASU colors and a southwest print to connect with the region and includes a flag print to represent the federal law theme. (See attached photos)
The starting bid is $150 and will be increased in $5.00 increments. You can view the quilt outside of Room 236 now until October 14th. After that date the quilt will be shown at the IGRA conference at Fort McDowell. The bidding will close at 4:00 p.m. on Friday, October 17th. The winner will be announced before the closing remarks of the conference.
If you are not attending the conference but would like to support this fundraiser, you can email Kate Rosier at with your bid. Please place “QUILT” in the subject line so we do not miss it. Kate will let you know if your bid is the highest. ILP staff will check for emails during the event and update the auction sheet at the event with the email bids. Please share with anyone you think would be interested. Thank you.
Let the bidding begin!

Conference at ITCA

Inter Tribal Council of Arizona, Inc.
“Future Directions of Tribal Health Research in Arizona”
Radisson Fort McDowell Resort & Casino
October 30-31, 2008

  • What is Community Based Participatory Research?
  • How does “Academic Freedom” apply to Indian Country?
  • What is the history of tribal health resarch in Arizona?
  • Where do we go from here?

Professor Tsosie will be a presenter during this event.

Carcieri v. Kempthorne

Carcieri v. Kempthorne

Issue: Whether the Narrangansett Tribe may receive benefits under the Indian Reorganization Act of 1934 if the Tribe was not federally recognized on the date of enactment, and whether the Rhode Island Indian Claims Settlement Act foreclosed the Tribe’s right to exercise sovereignty over land in the state.

With Argument Day Approaching, Supreme Court Stalemate Continues
Legal Times
Tony Mauro10-22-2008

Less than two weeks before the case Carcieri v. Kempthorne comes before the Supreme Court, lawyers Theodore Olson and Joseph Larisa Jr. are still at an impasse over which one of them will argue the case for the plaintiffs.

Larisa has the backing of the town council of Charlestown, R.I. to argue in the case as he has in courts below, but Rhode Island Gov. Donald Carcieri and Attorney General Patrick Lynch want Olson, the former solicitor general and now partner at Gibson, Dunn & Crutcher, to appear before the justices Nov. 3. The case is a dispute over an Indian land claim in Charlestown.

On Oct. 15, Olson filed a standard argument form with the Supreme Court clerk’s office stating he would be the one to argue. But the next day Larisa filed an argument form with his own name on it. Since the Court has already denied motions for divided argument, the clerk was faced with the dilemma of two lawyers claiming they will argue at the same time for the same party, when only one lawyer can do so.

On Monday Denise McNerney, the merits cases clerk for the Court, sent the two an identical letter telling them sternly that “The decision as to which attorney will argue on behalf of the petitioners in this case is now to be made amongst the parties.” She gave Olson and Larisa until noon on Oct. 30 to tell her who will be arguing.

Larisa, who wants the choice made by a coin toss, said Tuesday afternoon that the governor has once again refused to decide it that way. “They have not suggested any other option other than ‘Ted wins,'” said Larisa this afternoon. “Less than 13 days to go until oral argument and we cannot agree on a simple coin toss. It is the town’s position that the AG and governor are now affirmatively hurting preparation for oral argument.” Olson could not be reached for comment.

IGRA Quilt is a Hit!

A special thank you to Marlene Jones! ASU College of Law and Indian Legal Program alumnus Marlene Jones (JD/MBA ’97) donated a beautiful quilt to the ILP to help raise scholarship funds for students and commemorate the 20 Years of the Indian Gaming Regulatory Act. The quilt raised $920. Thanks again Marlene.