Professor Reed published his article in the SSRN

Professor Trevor Reed has released his article, Fair Use As Cultural Appropriation, to the SSRN.

Abstract: Over the last four decades, scholars from diverse disciplines have documented a wide variety of cultural appropriations from Indigenous peoples and the harms these inflict. And yet, there are currently no federal laws other than copyright that limit the appropriation of song, dance, oral history, and other forms of intangible culture. Copyright is admittedly an imperfect fit for combatting cultural appropriations – it is a porous form of protection, allowing some publicly beneficial uses of protected works without the consent of the copyright owner under certain exceptions, foremost being copyright’s fair use doctrine. This article evaluates fair use as a gate-keeping mechanism for unauthorized uses of culture. As codified in the 1976 Copyright Revision Act, the fair use doctrine’s four-part test is supposed to help fact finders determine whether an unauthorized use of another’s work is reasonable in light of copyright’s goals of promoting cultural production. But, while the fair use test has evolved to address questions about the purpose behind an appropriation, the amount and substance of the work used, and the effects of the appropriation on the market for the work, the vital inquiry about the “nature” of the original work and the impact of unauthorized appropriation on its creative environment has been all but forgotten by lower federal courts. Combining doctrinal analysis, settler-colonial theory, and ethnographic fieldwork involving ongoing appropriations of copyrightable Indigenous culture, this article shows how this “forgotten factor” in the fair use analysis is key to assessing the real impacts unauthorized appropriations have on culturally diverse forms of creativity. Thus, if we are committed to the development of creativity in all of its varieties and natures, a rehabilitation of the forgotten factor is both urgent and necessary.

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NAGPRA: Celebrating a 30-year milestone

On Nov. 16, the ILP commemorated the 30th anniversary of the Native American Graves Protection and Repatriation Act (NAGPRA) with a webinar “NAGPRA: 30 Years and Beyond.” The roundtable focused on how the law has empowered Tribes to reclaim their ancestors and cultural items from museums and other federally funded institutions, and what changes are needed in both the law and its implementation to better serve Indian Country.

Suzan Shown Harjo (Cheyenne & Hodulgee Muscogee), writer, curator, policy advocate and president of the Morning Star Institute, shared her insights into the important role NAGPRA plays in reversing the harms done to Indigenous ancestors and culture by researchers, federal agencies, and museums. She also spoke to the need for Tribes and their advocates to fully explore NAGPRA’s potential. James Riding In (Pawnee), founding member and associate professor in the department of American Indian Studies at ASU, spoke about his experiences helping Tribes implement NAGPRA and addressed some of ways Tribes can better negotiate with holding institutions. Shannon O’Loughlin, executive director and attorney with the Association on American Indian Affairs, discussed how NAGPRA should not be another way for museums to gather more data from Tribes to fill in gaps left by poor research—It is an enforceable law museums must respect with repatriation as its end goal. ASU Law’s Dean Emeritus Paul Bender, who facilitated the panel for National Dialogue on Tribal-Museum Relations that led to the passage of NAGPRA, moderated the event.

“The panelists’ insights into the origins of NAGPRA really brought the law into perspective,” said Professor Trevor Reed. “They showed us just how much the law can do for Tribal Nations as we build capacity and push to revise and develop it going forward.”

We’re grateful to these experts for sharing their time and knowledge

Pechanga Wills Clinic

Student Attorneys Serving Tribes

Jens Camp (3L) remotely counsels an estate planning client via Zoom during the October Indian Wills Clinic with the Pechanga Band of Luiseño Indians.

As part of broader efforts to help tribal communities address COVID-19 implications, Indian Legal Clinic students increased estate planning assistance in Indian Country. Students met  remotely with 14 members of the Pechanga Band of Luiseño Indians on drafting estate planning documents in October.

Nineteen wills, financial powers of attorney, and health care powers of attorney were executed during the project. The clients were grateful for the students’ “hard work, attention to detail, and graciousness,” said Robyn Delfino, Tribal Treasurer of the Pechanga Band, who managed administration of the program.

“We are thankful our students have the opportunity to bring this important service to the citizenry of the Pechanga Band,” said Professor Helen Burtis (’07). “These estate planning clinics give students unparalleled opportunities to counsel clients and learn the intricacies of drafting wills that conform with the American Indian Probate Reform Act.”

Students who participated are Mariah Black Bird (3L), Jens Camp (3L), Brendon Clark (3L), Aspen Miller (3L), Dustin Rector (3L) and MacArthur Stant (3L). They were supervised by Michele Fahley, Deputy General Counsel of the Pechanga Band, Mark Vezzola, Directing Attorney of the Escondido California Indian Legal Services, and Burtis.

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Helen Burtis (’07)
Faculty Associate, Indian Legal Program, ASU Law

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Job Opportunity – Associate Attorney

Sonosky, Chambers, Sachse, Endreson, & Perry LLP is seeking an associate attorney with 1-5 years of experience in transactional and other Indian law experience for our San Diego, CA office.  Interested applicants should have strong credentials and a commitment to representing Native American interests, and a clerkship is also highly preferred. 

Sonosky, Chambers is a national law firm dedicated to representing Native American interests in a wide range of endeavors – including trial and appellate litigation, federal Indian law, tribal law, Indian self-determination and self-governance matters, transportation and infrastructure, natural resources, and economic development, among others.  More detail about the firm is available at www.sonosky.com.

To apply, candidates should send an application that includes a cover letter, resume, law school transcript, and a writing sample to Colin Hampson at champson@sonoskysd.com.  Or visit the website at http://www.sonosky.com/careers.html to apply.  This position is open until filled, but applicants should apply by January 15, 2020.  Applicants must be licensed to practice law in California, or willing to become licensed.

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Job Opportunity – Attorney Advisor

Cybersecurity and Infrastructure Security Agency
Arlington, VA

Closing date: 9/30/20

Responsibilities

Joining the Cybersecurity and Infrastructure Security Agency (CISA) means being part of the team focused on securing the Nation’s physical and cyber infrastructure against threats to public health and safety, economy, and national security. Within CISA, the Office of the Chief Counsel (OCC) is responsible for all legal activities within CISA and represents the agency in all legal forums. OCC provides legal counsel on all matters pertaining to cybersecurity, infrastructure security, emergency communications, operations, and risk management. OCC determines CISA’s legal position in order to provide effective legal services dealing with policies, legislation, governance, claims, litigation, and alternative dispute resolution. OCC drafts legislation proposed by CISA officials and furnishes legal advice in connection with reports on legislation proposed by Congress and other Federal agencies. OCC develops, implements, and coordinates CISA’ ethics program for current and former CISA employees

In this position, you will serve as an Attorney Advisor. Typical work assignments include:

  • Reviewing and providing legal opinions regarding the application of fiscal and appropriations law to all aspects of CISA Programs.
  • Providing legal advice and guidance to senior officials on legal issues relating to appropriations and fiscal law and the possible effects on missions and programs.
  • Attending meetings and coordinating written products and advice, as appropriate with other Chief Counsel divisions, the Office of the General Counsel, and other relevant CISA and DHS offices
  • Providing advice and guidance to attorneys in the CISA Chief Counsel’s office and staff in CISA Divisions and contributes to the formation of CISA-wide policies particularly on matters relating to fiscal and appropriations law.
  • Performing legal analysis and research, conducting or participating as necessary in meetings, conferences, and consultations, preparing memoranda and opinions, and maintaining continuing liaison with clients.
  • Providing written and oral counsel, legal reviews, opinions, or decisions in the application of fiscal and appropriations law to programs conducted or assisted by CISA Divisions, and to CISA policies

Qualifications

To qualify for this position you must meet the following requirement:

Be an active member in good standing of the bar of the highest court of a State, U.S. Commonwealth, U.S. territory, or District of Columbia, and a graduate of a law school accredited by the American Bar Association.

In addition to the above requirement you must satisfy the minimum education and experience standards for this position as defined below, in the absence of a qualifying exception to the standard.

You qualify for the GS-15 grade level (starting salary $142,701.00) if you possess following:

A first professional law degree (LL.B. or JD); or a second professional law degree (LL.M.).

AND

Specialized professional legal experience in excess of three (3) years that include serving as a legal representative in legal actions and providing legal counsel and guidance on organizational activities that include fiscal and appropriations law. Note: Your experience must be commensurate with the duties and responsibilities of the position. The quality of the individual’s background may be evidenced by the relatedness of his or her specialization.

For application and full job description click here.

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Welcome: Meet People of the ILP

Kate Rosier (Comanche) 
Executive Director, Indian Legal Program
Assistant Dean of Institutional Progress
She completed her undergrad at Capital University with a concentration in Business Management. Kate is responsible for recruitment, student retention, fundraising, alumni development, jobs, grant writing, CLEs and programs. 

Fun facts about me: 1) I am an Ironman! In 2010 in honor of my 40th birthday I swam 2.4 miles, biked 112 miles, and ran 26.22 miles. 2) I was voted Homecoming Queen in high school. 3) My husband, sister-in-law, and brother-in-law all are ASU Law grads and participated in ILP. I am the only one who didn’t. (sad face) 

Patty Ferguson-Bohnee (Pointe-au-Chien Indian Tribe) 
Faculty Director, Indian Legal Program
Director, Indian Legal Clinic.
She completed her undergrad at Stanford University with a concentration in Native American Studies with an Emphasis in Policy and Law.
Patty directs and teaches the Indian Legal Clinic and advanced research seminars on Native Vote – Election Protection and Climate Impacts affecting Tribal Cultural Heritage.

Fun facts about me: 1) I spent time in France as an undergrad, law student, and spent an academic year doing research.  I love France!  2) I help to organize a culture camp for Pointe-au-Chien youth every summer. 

Robert J. Miller (Eastern Shawnee Tribe of Oklahoma) 
Professor of Law 
He attended Eastern Oregon University and received his B.S. in 1988. Professor Miller teaches Federal Indian Law I and II, and Economic Development in Indian Country.  

Fun facts about me: 1) I was born and raised in Portland Oregon which is a LOT cooler than Phoenix. 2) I worked in my dad’s used car business for 19 years before I went to college [I know how to repossess cars, so I must be really tough!] 3) I played soccer for 30 years and we won the Portland city championship three times! 

Trevor Reed (Hopi) 
Associate Professor of Law 
He completed his undergrad at Brigham Young University with a concentration in Music composition. Professor Reed teaches Federal Indian Law II, Property, and Intellectual Property

Fun facts about me: 1) I love hiking and mountain climbing and once summited Mt. Rainier. 2) I’m a bass player and music nerd who loves everything from classic rock to symphony. 3) My favorite foods right now are Noqwivi (Hopi stew) and Harumi Sushi. 

Larry Roberts (Oneida Nation (WI)) 
Professor of Practice and Executive Director of the Indian Gaming and Tribal Self-Governance Programs 
Professor Roberts teaches Indian Gaming Law and Administrative Law. He completed his undergrad at the University of Wisconsin – Madison concentrating in Political Science and Sociology. 

Fun facts about me: 1) I’ve run 8 marathons, including NYC, DC and Chicago. 2) I briefed President Obama in the Roosevelt Room. 3) the first concert I ever saw was the Police during their Synchronicity tour – the ticket was $17.50.     

Ann Marie Bledsoe Downes (Winnebago Tribe of Nebraska) 
Professor of Practice and Director, Indian Gaming and Tribal Self-Governance Programs 
She attended Wayne State College with a concentration in Social Sciences Education. Professor Bledsoe Downes works on development of curriculum for the Indian Gaming and Tribal Self-Governance programs, oversight and administration of the programs, as well as recruitment and retention of students in the MLS and LL.M. Degrees.  

Fun facts about me: 1) I love to run and do yoga. 2) I always use pencils instead of pens.  3) My husband Brad and I were the first ILP marriage. 

Helen Burtis 
Faculty Associate  
Professor Burtis completed her undergrad at Kansas State University with dual majors in Business Management and General Humanities. She teaches Advanced Legal Writing in Indian Law and the online master’s American Indian Law. Professor Burtis also helps with the Indian Legal Clinic, including the Indian Wills Clinics, the Tribal Court Trial Skills College, and supervising students working on business formation cases.  

Fun facts about me: 1) I am a grateful grandmother of two really fun grandsons. 2) I am an avid hiker and hill climber, venturing out several times each week. 3) After a lifetime of eating meat, I became a vegan in early 2020.  

Tamara Herrera 
Associate Dean of Academic Affairs  
Professor Herrera completed her undergrad at Grinnell College with a concentration in English. She co-teaches the Indian Legal Research course with Beth DiFelice. 

Fun facts about me: 1) I was the first person in my family to go to college (and, obviously, law school). 2) I love amusement parks and rollercoasters. 3) I worked on a soap opera after college as an apprentice production assistant. 

Beth DiFelice 
Assistant Dean and Director, Ross-Blakley Law Library 
Professor DiFelice completed her B.A. in English at Centenary College of Louisiana. She co-teaches the Indian Legal Research course with Tamara Herrera. She oversees the law library and has created the Indian Legal Research Guide, which is very useful.

Fun facts about me: 1) I have a cat who we call Puppy. 2) My hobby is Olympic Weightlifting. 3) I am a former yoga teacher. 

Danielle Williams (Navajo) 
Program Coordinator 
She completed her undergrad at Arizona State University with concentration in Photography and minors in Justice Studies and Anthropology.  She plans and coordinates events, processes business claims, manages ILP social media and monthly newsletter, and all things marketing. 

Fun facts about me: 1) I love dancing and led a virtual powwow fitness session. Balancing health and wellness are super important! 2) I’m a photographer and love documenting—Nell’s Photography. 3) I don’t really like chocolate, but I love (and make a great) tiramisu.  

Theresa Beaulieu (Stockbridge-Munsee) 
Program Coordinator 
She graduated from ASU and UA. She works on ILP events, marketing and processing information for the program. 

Fun facts about me: 1) I lived in Arizona off and on since 1963. 2) I’ve visited all 50 of the United States. 3) And I have webbed toes. We are playing two truths and a lie, aren’t we? 

Bari Barnes 
Program Coordinator 
She completed her undergrad at Phoenix College with concentration in Fashion Merchandising and the Paralegal Certificate Program. Bari works closely with Professor Ferguson-Bohnee in the ILC providing support and assisting Clinic students. 

Fun facts about me: 1) I’ve tandem skydive. 2) I once participated in an Inipi ceremony 3) I am a huge fan of the Jason Bourne series. 

Torey Dolan (Choctaw Nation of Oklahoma), JD ’19 
Native Vote Fellow 
She completed her undergrad at the University of California, Davis in 2016 with concentration in History and Political Science – Public Service. Torey also works closely with Professor Ferguson-Bohnee in the ILC and handles all things Native American Election Protection Vote. 

Fun facts about me: 1) I graduated from ASU and ILP in 2019. 2) My favorite hike in metro-Phoenix is the Javelina Trail at South Mountain. 3) I grew up in Bakersfield, California.   

Ben Zinke, JD ’18 
Law Fellow 
He graduated from Grand Canyon University with concentration in Justice Studies. Ben assists the ILP and faculty with research projects and providing content for reports. 

Fun facts about me: 1) I love Basketball 2) I love Star Wars 3) I have four dogs 

Ah’sha Notah (Navajo)
Office Aide
She is currently working on her undergraduate degree with the ASU’s College of Liberal Arts and Sciences concentration in American Indian Studies. Ah’sha processes business claims, tracks expenses and assists with events.  

Fun facts about me: 1) I make jewelry. 2) I dance (powwow) in my free time. 3) I usually travel to Canada during the summers.

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Danielle Williams
Program Coordinator, Indian Legal Program, ASU Law