Johnson v. M’Intosh

Posted on March 31, 2023 by dwilliams

International conference was a success

On March 10, the ILP hosted a virtual event “Unraveling the International Law of Colonialism: The 200th Anniversary of Johnson v. M’Intosh.”

Johnson v. M’Intosh is an 1823 U.S. Supreme Court case that used the Doctrine of Discovery to justify denying Native Americans and Indigenous Peoples’ legal rights to their ancestral lands. We had eight Indigenous speakers from South Africa, Norway, India, Canada, New Zealand, and the United States. Our other five speakers added immeasurably to the program. Professor Robert Miller presented and moderated the webinar with 12 speakers to discuss how the Doctrine of Discovery has impacted Indigenous nations and peoples all over theworld but most importantly how Indigenous peoples are fighting back to “unravel” this international law of colonialism.

We thank each of our esteemed speakers and staff for making this a great success. We couldn’t put on these kind of events without the great work of Kate, Theresa, Danielle and Lindsay. We had over 800 registrants and the recording is now available to everyone in the world.

If you missed the webinar, watch the recording.

An article “The International Law of Colonialism: Johnson v. M’Intosh and the Doctrine of Discovery Applied Worldwide” published by Professor Miller that includes a detailed timeline of the Supreme Court case.

Advancing Indigenous innovation and alliances at ASU Law

Posted on February 25, 2023 by dwilliams

On Feb. 21, the Indian Legal Program hosted a meeting between Tribal leaders and representatives and the United States Patent and Trademark Office (USPTO) to develop collaborations to support innovation in Indian Country. Kathi Vidal, Under Secretary of Commerce for Intellectual Property & Director of the United States Patent and Trademark Office (USPTO) attended, along with Lead Judge Georgianna Braden of the Patent Trial and Appeals Board, and Attorney Advisor Susan Anthony of the USPTO Office of Policy and International Affairs. Racquel Black of Change Labs provided they keynote presentation. The Tribes and the USPTO discussed new programs to advance creativity and innovation on Tribal lands while respecting Tribal sovereignty, especially over traditional knowledge, cultural expressions, and genetic resources.

We extend our thanks to the USPTO, the Navajo Nation Division of Economic Development, the Pascua Yaqui Tribe and the McCarthy Institute for their support of the Indian Legal Program’s efforts to promote Indigenous innovation.

Call for articles: Special Indian Law edition of the Arizona Attorney 2023

Posted on January 19, 2023 by dwilliams

Deadline: February 28, 2023

The Indian Law Section is soliciting proposals for articles to be included in the 2023 special Indian Law edition of the Arizona Attorney magazine. The proposal should focus on an issue of interest to those who practice Indian Law.

Either a short or a long article may be proposed. Generally, a long article will be between 2,000 and 2,500 words (in a Microsoft Word document, about 9 to 12 pages including endnotes) and will be about 3 to 4 pages in the magazine. A short article will be approximately 1,500 words and typically will be 2 pages in the magazine.

The proposal should provide the following information: author’s name and contact information (e-mail address, phone number, and name of employer/firm); the subject matter of the article (e.g., ICWA, NAGPRA, Water Rights, Land Use, Tribal Sovereignty, etc.); the anticipated title; and a concise summary of the thesis of the article.

Proposal authors will be notified on whether their proposed article has been accepted by March 10, 2023. The draft of the article for a selected proposal will be due on April 7, 2023. Final drafts of selected articles are due by May 5, 2023.

Past articles from the 2022 Indian Law edition were:

McGirt v. Oklahoma: The Most Impactful Indian Law Case in a Century?
By Professor Robert J. Miller

ICWA- The Gold Standard: Golden Nuggets of Evidence from Arizona
By Tara Hubbard & Fred Urbina

Indigenous Erasure in Public Schools: Critical Race Theory, Discriminatory Policies, and Remedies for Students
By Mia Montoya Hammersley, Adriana M. Orman & Wouter Zwart

“Authentic” From Time Immemorial: Reforming Rule of Evidence 902 To Reflect Tribal Sovereignty
By Henry Oostrom-Shah

The Cabazon Decision, 35 Years On
By Glenn M. Feldman

Tribal Labor and Employment Law: The Evolution of the Navajo Preference in Employment Act
By Paul Spruhan

Indian Law From Behind the Bench
By Alexander Mallory (’19)

Oral History on Trial
By Robert Alan Hershey

If you would like to submit a proposal or if you have questions, please contact
Glennas’ba Augborne Arents (’16), Secretary, Indian Law Section
gaugborne@rothsteinlaw.com

Hon. June Harris, Member-at-Large, Indian Law Section
JHarris@sc.pima.gov

Your vote, your voice

Posted on November 16, 2022 by dwilliams

2022 is another year that has seen Arizona Native voters and their rights disproportionally challenged on the ballot. “Native advocates say voter ID rules in Proposition 309 could disenfranchise Arizona Indigenous voters,” said Native Vote fellow Torey Dolan (’19) in her interview with the AZ Central. The article discusses the impact that Proposition 309 will have on Tribal communities if passed. Proposition 309 would limit the forms of identification that are acceptable for in-person voting and would eliminate many forms of Tribal identification that voters currently rely on.

Despite this ballot measure and redistricting issues, the Indian Legal Clinic’s Native Vote Election Protection team organized and strategized with its partners to remain steadfast leading up to Election Day. Dolan presented at the Tribal leaders meeting hosted by the Inter Tribal Council of Arizona and discussed the propositions’ impacts on Tribal communities and Native voters.

Indian Legal Clinic student attorneys Mallory Moore (3L) and Autumn Shone (3L) led and conducted two trainings for volunteers.

This year, 66 volunteers served as Election Protectors stationed at multiple polling locations to assist voters at 9 Tribal communities: the Ak-Chin Indian Community, the Fort McDowell Yavapai Nation, the Gila River Indian Community, the Navajo Nation, the Pascua Yaqui Tribe, the Salt River Pima-Maricopa Indian Community, the San Carlos Apache Tribe, the Tohono O’odham Nation and the White Mountain Apache Tribe.

On Election Day, the Native Vote team worked with the Navajo Nation to assist in emergency litigation due to delays in the opening of a polling location in Many Farms, Arizona. Katherine Belzowski, an attorney with the Navajo Nation Department of Justice Economic and Community Development Unit, said “The Indian Legal Clinic was instrumental to the Navajo Nation’s success in the 2022 Election. ILC worked with the Navajo Department of Justice (NDOJ) to monitor state polling locations across the Nation. With ILC’s assistance NDOJ was able to timely investigate and respond every concern submitted to the ILC and NDOJ voting hotline.”

Thank you to all volunteers, advocates and allies for serving as Election Protectors and organizing the Native Vote power! With your help, we were able to assist voters through the hotline and in the field, ensuring that Native voters were able to cast ballots free from intimidation and without undue challenges. This year’s ILC Native Vote leadership team includes dedicated ILP Native Vote Fellows Torey Dolan (’19) and Blair Tarman-Toner (’20), student attorney leads Mallory Moore (3L) and Autumn Shone (3L), and student attorneys Chad Edwards (3L), Brittany Habbart (3L), Michael LaValley (3L), and Ruben Zendejas (3L), under the supervision of Professor Patty Ferguson-Bohnee.

Building Communication between Tribal & Federal Courts & the Agencies Administrating Justice in Indian Country

Posted on October 5, 2022 by Indian Legal Program

Friday, October 21, 2022
9:30 a.m. – 12:00 p.m.

Sandra Day O’Connor Courthouse, Jury Assembly Room
401 W. Washington St., Phoenix, AZ, and via Zoom

There is no charge for this event. Space is limited and registration is required. CLE may be available.

Registration for In Person: rsvp.inperson@azd.uscourts.gov

Registration for Virtual: rsvp.virtual@azd.uscourts.gov

Link to More Information

Questions: humetewa_chambers@azd.uscourts.gov

Tribal Nations and Abortion Access: A Path Forward

Posted on August 18, 2022 by dwilliams

These Indian Law Scholars joined forces and co-authored an article “Tribal Nations and Abortion Access: A Path Forward,” forthcoming in the Harvard Journal of Law and Gender. Currently available on the SSRN. This article outlines the legal realities of providing abortion care in Indian country, particularly in the context of avoiding state prohibitions. Abortion care is a fundamental human right of Indigenous people. The ability to safely end a pregnancy is consistent with Tribal conceptions of autonomy, privacy, and individual self-determination.

Professor Lauren van Schilfgaarde, UCLA School of Law
Professor Aila Hoss, Indiana University Robert H. McKinney School of Law
Professor Ann E. Tweedy, University of South Dakota School of Law
Professor Sarah Deer, The University of Kansas
Professor Stacy Leeds, Sandra Day O’Connor College of Law

The Aftermath of Castro-Huerta

Posted on July 19, 2022 by dwilliams

On July 7, ASU Law’s Indian Legal Program and Indian Gaming and Tribal Self-Governance programs hosted a virtual event – Oklahoma v. Castro-Huerta: Rebalancing Federal-State-Tribal Power.

Oklahoma v. Castro-Huerta is the most recent federal Indian law case decided by the U.S. Supreme Court and held that states share concurrent jurisdiction with the federal government in prosecuting crimes committed by non-Indians against Indian victims in Indian country. The majority decision, authored by Justice Brett Kavanaugh, departs significantly from earlier principles and precedent in this area and the panel discussed their thoughts on what this decision means on the ground for Indian tribes.

The event was moderated by Derrick Beetso (’10), Indian Gaming and Tribal Self-Governance Director, and included a fantastic lineup of Native leaders in academia: Kevin Washburn, Dean of Iowa Law School; Professor Stacy Leeds, ASU’s Foundation Professor of Law and Leadership; and Professor Robert Miller, ASU’s Willard H. Pedrick Distinguished Research Scholar and ASU Faculty Director of the Rosette LLP American Indian Economic Development Program.

The ILP and the Indian Gaming and Tribal Self-Governance programs thank each of our panelists for their time and for sharing their views on this case, and we thank all those who tuned in to listen to this discussion. If you missed the webinar, you may watch the recording.

On this topic, our expert faculty contributed to the national conversation happening in the media.

“Wednesday’s decision removes the jurisdictional boundaries of tribal sovereignty that have kept state and local police from entering tribal lands in some cases,” said Leeds to NBC News. Leeds’ legal expertise was also featured in KOSU, Reuters,Bloomberg Law and U.S. News & World Report.

“It will have an impact in Indian Country, so only the future will tell us if it’s good or not,” said Miller in an Associated Press news article. Miller also spoke to the Arizona Republic, saying: “Supreme Court rulings could weaken tribal jurisdiction and sovereignty.”

“Through this opinion, Kavanaugh rallied his cavalry of five to perform the modern version of slashing and burning peaceful Native communities and their resources and provisions to the ground,” Beetso wrote in his Indianz.com op-ed, “SCOTUS’ Decision in Oklahoma v. Castro-Huerta Departs Wildly from U.S. Constitution.”

ILC: 2022 Year in Review

Posted on June 10, 2022 by dwilliams

This year, Professor Helen E. Burtis (’07) helmed the Indian Legal Clinic while Professor Patty Ferguson-Bohnee sharpened her focus on other projects on sabbatical. During the academic year, eleven student attorneys worked over 3600 hours handling 22 cases covering a variety of subjects and venues, including tribal, state, and federal courts. Some of the accomplishments that students realized on behalf of their clients included assisting an elder to officially enroll in her tribe after a lifetime of paperwork complications, creating bylaws for a nonprofit funding youth in the arts, and successfully starting or concluding several appointments of personal representatives in probate cases. Students also researched and recommended options to protect tribal land, to recover expenses for services not performed, and to recover debts.

This was the first year students were able to appear in tribal courts for criminal cases since the start of the pandemic. While still not at full capacity, seven student attorneys made appearances in tribal courts for both prosecution and defense. For many students, this was their first appearance in court.

The ILC also expanded services for Indian Wills Clinics, forging new partnerships with two tribes while continuing two existing partnerships. In September 2021, 3L student attorneys Jacob Broussard, Liliana Elliot, Lindsay Ficklin, Zaine Ristau and Dwight Witherspoon and Professor Burtis traveled to Winterhaven, California for the third Wills Clinic for the Quechan Indian Tribe and in October, the same team also provided the third Wills Clinic for the Pechanga Band of Luiseño Indians in Temecula, California.

In February 2022, clinic students Gwendolyn Bell (2L), Ryan Maxey (2L), Lena Neuner (2L), Claire Newfeld (2L), Ravynn Nothstine (2L) and David Streamer (3L) and Professor Burtis traveled to Santa Rosa Rancheria, California for the first Wills Clinic for the Tachi Yokut Tribe.

In March, this team remotely provided another first Wills Clinic from ASU Law to the Mashantucket Pequot Tribal Nation in Connecticut.

Overall, student attorneys created estate planning documents including wills, healthcare powers of attorney, and financial powers of attorney for 45 tribal clients during these Wills Clinics.

The ILC Team, including Native Vote Fellows Torey Dolan (’19) and Blair Tarman-Toner (’21) and Professor Ferguson-Bohnee, continues to work with tribes to protect tribal land and resources, uphold tribal sovereignty, advocate for cultural protections, support voting rights, and assist with status clarification of Tribes. Notably, Ferguson-Bohnee successfully argued and won a case before the Ninth Circuit Court of Appeals that found “intratribal disputes are generally nonjusticiable in federal courts.”

Tarman-Toner presented to the National Congress of American Indians’ Federal Recognition Task Force. Her presentation provided updates on Tribes seeking to gain federal recognition through legislative, judicial, and administrative avenues.

____
Honore Callingham (’18)
Law Fellow, Indian Legal Clinic, ASU Law

Danielle Williams
Program Coordinator Sr, Indian Legal Program, ASU Law

Our year for Indian Gaming & Tribal Self-Governance Programs

Posted on May 31, 2022 by dwilliams

The Indian Gaming and Tribal Self-Governance Programs (“Programs”) at ASU Law had a successful academic year and we congratulate all the 2022 Master of Laws (LLM) and Master of Legal Studies (MLS) graduates.

In August, the Programs welcomed its current director, Derrick Beetso, a 2010 graduate of the Indian Legal Program (ILP). Beetso is a member of the Navajo Nation who previously served as general counsel for the National Congress of American Indians where he co-directed the Tribal Supreme Court Project alongside colleagues at the Native American Rights Fund, and before that he served as attorney-advisor for the Western Region of the Bureau of Indian Affairs and the BIA’s San Carlos Irrigation Project. He brings with him a wealth of knowledge working in and around federal Indian law and policy and said, “the Indian Gaming and Tribal Self-Governance Programs provide practical learning opportunities for all law students, whether they seek a JD, LLM, or MLS degree, and I’m so proud to help guide how the Programs engage with and respond to Native communities in Arizona and throughout the Nation. It has been a pleasure to work with the ILP team to help realize the professional goals of such a dynamic cohort of students dedicated to improving the lives and well-being of Indian Country.”

Two faculty associates also joined ASU Law’s Indian Gaming and Tribal Self-Governance Programs: Jay Spaan, a citizen of the Cherokee Nation, taught Tribal Self-Governance I and Tribal Self-Governance II, and Michael Hoenig taught Indian Gaming I and Indian Gaming II. Faculty Associates Paul Spruhan taught Civil Jurisdiction in Indian Country and Helen Burtis (’07) taught American Indian Law.

MLS student Roicia Banks enjoyed Professor Spruhan’s class. “I appreciated Professor Spruhan’s extensive knowledge of Federal Indian Law,” Banks said. “But it was more important to me that as a man married to a tribal member, Professor Spruhan was very respectful, woke, and straight forward.”

“As a member of a federally recognized tribe, I took many of the deciding court cases that shaped federal Indian law personally in that I felt it was my duty to understand the past to better understand where we are today,” Richard Picard (MLS ’22) said. “Professor Burtis ensured that all relevant Indian law topics were covered thoroughly and that they were understood as clearly and easily as possible.”

Francisco Olea (LLM ’22) worked for Professor Hoenig in 2016 during his internship with the National Indian Gaming Commission in Washington, D.C. and six years later, Olea was glad to be enrolled in his online Indian Gaming II class.

In September, in partnership with ASU Law’s Allan “Bud” Selig Sports Law and Business Program, the Programs hosted a timely webinar entitled “Betting on Arizona: the Future of Indian Gaming and Sports Betting in Arizona.” The webinar was well attended and featured key attorneys that represented Arizona Indian tribes in negotiating recent compacts and state legislation allowing Arizona’s tribes to participate in the State’s recent sports wagering operation directed by the Arizona Gaming Commission. The rollout of sports wagering in Arizona last year has brought many instances of first impression and the Programs’ students and staff are at the forefront of thinking through various issues presented and helping envision what the future holds for tribes in this area nationally. Beetso has provided regular commentary to gaming publications on recent sports wagering developments; updated the Arizona Indian Gaming Association on current legal and policy issues; and helped moderate a sports betting panel for the Federal Bar Association’s D.C. Indian Law Conference and the ILP’s Wiring the Rez conference.

In October, Beetso taught his first course, Federal Advocacy for the Tribal Client, the ILP’s traveling class at ASU’s Washington, D.C. campus during the fall semester break. The course is designed to instruct students on the basic principles behind effective advocacy before federal agencies, Congress, and the Supreme Court.

Students had the opportunity to engage with professionals, congressional staff, and administrative officials to better understand how federal Indian law and policy is shaped and implemented. While in town, the students also had time to tour the Nation’s Capitol and make professional connections with practicing attorneys during networking opportunities.

In November, the Programs had the pleasure of attending the ribbon cutting ceremony for the newly opened Yuhaaviatam of San Manuel Event Center within ASU’s California Center in downtown Los Angeles at the historic Herald Examiner Building. The Programs accompanied ILP faculty, the ILP’s esteemed Salt River Scholars, law school leadership, and representatives from the office of ASU President Michael Crow to celebrate this momentous occasion and important partnership with the San Manuel Band of Mission Indians. The Band has donated generously to the law school’s endeavors to increase its impact in the Los Angeles area and to provide meaningful and practical education opportunities for Native students interested in furthering Indian gaming and tribal self-governance. The Programs are currently planning a community teaching event, to be held at the Yuhaaviatam of San Manuel Event Center this summer, which will showcase the exciting work our students are engaged in, the talent of the law school’s faculty, and the partnerships and community building efforts made possible by substantial investments from the San Manuel Band of Mission Indians, the Shakopee Mdewakanton Sioux Community, the Mohegan Tribe, and other important donors.

Finally, the Programs were honored to host a lunch lecture with Tribal leaders from the Alabama-Coushatta Tribe of Texas to share their unique history and the relevance of the Tribe’s bingo operation to its self-governance. The Alabama-Coushatta Tribe and its bingo operation await a decision from the Supreme Court on a case, Ysleta del Sur Pueblo v. Texas, that will have a direct impact on their self-governance.

The Tribe shared its role in the current litigation before the Court and spoke with students about their interest in Indian gaming and the case specifically. Oral arguments in Ysleta del Sur Pueblo v. Texas were held February 22, 2022 and a decision from the Court is expected soon. The Programs hope to invite tribal leadership from both the Alabama-Coushatta Tribe of Texas and Ysleta Del Sur Pueblo back once the Court’s opinion is published.

Collaborative publications

Posted on February 19, 2022 by dwilliams

Earlier this year, Professor Robert Miller and Native Vote Fellow Torey Dolan (’19) published their article “The Indian Law Bombshell: McGirt v. Oklahoma,” which is now published in print by Boston University Law Review.

In addition to her role with the Indian Legal Program’s Arizona Native Vote Election Protection Project, Dolan could not miss the opportunity when Miller approached her to co-author a law review article.

Q: This is your first published law review article, how does it feel? How did it all start?
A: It feels great to have a published law review article to my name. I like to think that it started when I was a student in Professor Miller’s Indian Law class. I began following the legal question of reservation disestablishment with respect to the Muscogee Creek Nation reservation when it was before the Tenth Circuit Court of Appeals in Murphy v. Royal, the predecessor case to McGirt. The timing of the case coincided with Professor Miller teaching the standards of reservation disestablishment in his class. I would bug him in his office hours talking about the Murphy case and since then, we would talk about the legal issues as we watched the question go up to the Supreme Court. Once the Supreme Court issued their decision in McGirt, Professor Miller invited me to work with him on an article about the case.

Q: You were a student who sat in Professor Miller’s class and now a co-author, what was it like?
A: Good Professors become life long mentors, in my opinion. So, going from learning the area of law from Professor Miller as a student to joining him as a co-author on an article speaks of Professor Miller’s commitment to mentorship that is a core ethic of the Indian Legal Program. In this process I was able to work with Professor Miller as a colleague in intellect, but he also took this as an opportunity to teach me about the world of legal publication and helped demystify the process. The idea of publishing on my own in the future feels more obtainable and far less daunting thanks to going through this experience with Professor Miller.

Q: Throughout the overall process, what did you find interesting?
A: I expected the research and writing to be the most interesting part, but honestly what I found interesting was learning about the world of publication. For academics, publishing means a lot and where, when, and what you publish is important. It was a whole world that I had not thought about nor ever been exposed to.

Q: For those who are considering publishing a law review article, what advice do you have for them?
A: If you can, find a Professor Miller to mentor you through the process. If you want to put your best foot forward with your first publication, having an academic mentor in your corner to not only review your work for substance but also teach you about publishing, SSRN, shopping an article around to journals, can maximize your potential for success.

Congratulations Professor Miller and Torey!

____

Danielle Williams
Program Coordinator Sr, Indian Legal Program, ASU Law

International conference was a success

Friday, October 21, 20229:30 a.m. – 12:00 p.m. Sandra Day O’Connor Courthouse, Jury Assembly Room401 W. Washington St., Phoenix, AZ, and via Zoom

Friday, October 21, 2022
9:30 a.m. – 12:00 p.m.

Sandra Day O’Connor Courthouse, Jury Assembly Room
401 W. Washington St., Phoenix, AZ, and via Zoom