New Faculty Associate & New MLS Course

This upcoming summer, the Indian Legal Program (ILP) is expanding the Master of Legal Studies (MLS) program with a new course on civil jurisdiction in Indian Country. Paul Spruhan joins as faculty associate of the Sandra Day O’Connor College of Law. Spruhan is the Assistant Attorney General for the Litigation Unit of the Navajo Nation Department of Justice in Window Rock, Arizona.

This new course compliments the current curriculum offered to ILP students enrolled in the MLS program as it will allow an in-depth and comprehensive study on the foundational laws that have shaped civil jurisdiction in Indian Country today. This course will examine the relationship between the circuit courts and the United States Supreme Court in the development of binding case law that directly impacts the reach and impact of tribal sovereignty.

“Issues of civil jurisdiction in Indian Country are complex but vital for the development of tribal sovereignty,” said Spruhan. “This class will discuss the important federal cases and statutes and apply those cases to real world situations, so that tribal leaders and others within and outside Indian Country can understand the framework created by federal Indian law to make the important policy decisions that affect tribal communities.”

Professor Ann Marie Bledsoe Downes (Winnebago Tribe of Nebraska) is the Director of the Masters of Legal Studies for ILP and works on the development of curriculum for the Indian Gaming and Tribal Self-Governance programs for the MLS and LL.M programs. Professor Bledsoe Downes is excited to expand ILP’s online Federal Indian Law courses for the MLS program. There are now three Indian law MLS emphasis areas and this new course developed and taught by Spruhan is an important addition to each of these study areas. “Paul’s expertise in this area and talent for the online classroom are the perfect fit for the Indian Legal Program and our new Indian Gaming and Tribal Self-Governance Programs,” said Bledsoe Downes. “We also anticipate MLS students from other emphasis areas pursing this course, which is a great way to expose more of our student body to the field of Federal Indian Law and to improve understating of tribal governments and tribal sovereignty.”

Please join ILP in welcoming Paul Spruhan to the ILP family!

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DesiRae Deschine
(’19)
Attorney, Navajo Nation Department of Justice

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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First Annual Trends in Indian Gaming Conference a Virtual Success

The Indian Gaming and Tribal Self-Governance Programs hosted its first annual “Trends in Indian Gaming” webinar on July 15-16.  Indian Gaming and Tribal Self-Governance Executive Director Larry Roberts welcomed a national audience of nearly 300 attorneys, students, professionals and thought leaders convening to discuss evolving Indian gaming issues.  Dean Douglas Sylvester opened the virtual conference acknowledging that ASU sits on the traditional homelands of tribal Nations. He shared ASU Law’s longstanding and enduring commitment to tribal nations and how the Indian Gaming and Tribal Self-Governance Programs are the latest reflection of that commitment. Special Guest Ernie Stevens, Chairman of the National Indian Gaming Association (NIGA), shared NIGA’s enthusiastic support of ASU’s new Indian Gaming and Tribal Self-Governance focused degree programs and provided an overview of how tribes are again leaders in gaming during these difficult times.

The virtual conference opened with a panel focused on how tribes across the country were balancing covid-19 and reopening, which was moderated by Patty Ferguson-Bohnee, Director of ASU’s Indian Legal Clinic and Clinical Professor of Law. Mohegan Tribe Vice Chairwoman Sarah Harris shared details of the Tribe’s reopening as well as its work with Federal and State officials to address the pandemic and reopening. Shakopee Mdewakanton Sioux Community’s General Counsel William Hardacker provided an overview of how the Midwest Tribe navigated legal issues brought about by the pandemic and how the facility was operating in this changed environment. Providing a west coast perspective, Dan Little, San Manuel Band of Mission Indians’ Chief Intergovernmental Affairs and Tribal Affairs representative, shared the Tribe’s forward-leaning efforts to provide a safe entertainment environment and how the Tribe’s leadership in this area was acknowledged as the gold standard for reopening gaming facilities.

Day 1 of the virtual conference closed with a spirited overview of the latest developments concerning Indian gaming compacts.  Moderated by Morongo Band of Mission Indians’ General Counsel Kimberly Cluff, ASU Law alumni Brad Bledsoe Downes (’94) and Scott Crowell (’84) provided their views on the current state of play in Arizona and California regarding tribal gaming compacts.  Iowa Law Dean Kevin Washburn shared his insights from his time serving as Assistant Secretary of Indian Affairs and the current state of litigation with the Oklahoma Governor and Indian tribes in Oklahoma. Attorney Andrew Caulum, who focuses on tribal gaming issues for the Solicitor’s Office in the Department of Interior, provided a timely overview of how the Department processes its review of tribal-state gaming compacts.

Participants for Day 2 of the virtual conference were welcomed by ASU Law alum Ann Marie Bledsoe Downes (’94), Director of the Indian Gaming and Tribal Self-Governance Programs. Special guest ASU alum A. Gay Kingman, Executive Director of the Great Plains Tribal Chairmen’s Association extended a warm welcome to the attendees and shared her support for ASU Law’s new programs.  She noted ASU’s long-standing commitment to serving the educational needs of tribal nations and tribal citizens.  Day 2 opened with a panel moderated by Burton Warrington, Indian Ave. Group, focused on the latest trends in online gaming. Pechanga Band of Luiseño Indians’ General Counsel and ASU Law alum Steve Bodmer (’06) provided an update on the latest developments in California and the complexities moving forward.  NIGA Executive Director Jason Giles provided a national perspective of how tribes are approaching online gaming with the Congress. Bay Mills Indian Community Chairman Bryan Newland shared how the tribes in Michigan have worked with the State to offer online gaming under existing tribal-state compacts and to offer off-reservation online gaming under state law. Rion Ramirez, CEO, Port Madison Enterprises provided an update on how tribes in the pacific northwest are approaching online gaming and potential future hurdles. 

The virtual conference closed with a panel providing updates on actions by the Trump Administration impacting tribal nations, moderated by David Mullon, Partner, Venable LLP. Two ASU Law alumni, Charlie Galbraith (’06), Partner at Jenner & Block, and National Congress of American Indians’ General Counsel Derrick Beetso (’10), shared their insights regarding Interior and White House actions concerning tribal interests. National Indian Gaming Commission (NIGC) Chairman Sequoyah Simermeyer provided an update on NIGC’s efforts to assist tribal gaming operations during covid.  Department of the Interior Deputy Solicitor for Indian Affairs Kyle Scherer provided an overview of litigation in which the Trump Administration supported tribes, including defending the Indian Child Welfare Act. 

We extend special thanks to the National Indian Gaming Association, the San Manuel Band of Mission Indians, the Shakopee Mdewakanton Sioux Community for their sponsorship of this inaugural event. These sessions will be posted in the coming weeks on ASU Law’s Indian Gaming and Tribal Self-Governance website – we hope you enjoy the content.

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Promoting Excellence in Diversity

On Feb. 15, Professor Patty Ferguson-Bohnee was honored as one of five recipients of the American Bar Association’s 2020 Spirit of Excellence award in Austin, Texas. This title is awarded annually to legal professionals that demonstrate excellence and commitment to diversity in law. We are so proud that she is a part of our program, and we are grateful to the ILP alumni and friends who came to support her achievement. Congratulations! 

“I realize that the opportunities I’ve had resulted from the work and sacrifice of a lot of people who fought for those opportunities. That’s why I spend a lot of time giving back to my tribe and serving my tribe in a pro bono capacity. I think it’s awesome because I feel that when I do things, I’m not just representing myself, but I am also representing my family, my tribe and where I come from.” 

Read more here or here