Deadline Extended – Call for articles: Special Indian Law Edition of the Arizona Attorney 2022

Deadline for 1-2 Paragraph Article Proposals: February 7, 2022

Deadline for Article Drafts: March 18, 2022

The Indian Law Section has extended the deadline for article proposals to be included in the 2022 special Indian Law edition of the Arizona Attorney magazine. Proposals should focus on an issue of interest to those who practice Indian Law. Publication in the Indian Law Edition of the Arizona Attorney magazine is a wonderful opportunity for Indian legal practitioners to showcase their expertise in the field of Indian law.  The Indian Law Section relies on you to contribute articles in order to preserve this outstanding tradition.

Past articles from the 2021 Indian Law edition were:
A View from Tribal Court: Tips for Best Practices
By M. June Harris

Thawing the Freeze: COVID-19’s Effect on the Former Bennett Freeze Area of the Navajo Nation
By Susan I. Eastman

The Words of the Talking God: Sustaining Native Nations Through the Common Law
By Joseph Austin

An Opportunity Arises: Prop. 207 and Arizona Tribes’ New Beginnings for Marijuana Legislation
By Judith Dworkin, Joe Keene, and Candace French

Epidemic Hiding in Plain Sight
By Susan Filan

Spectrum Sovereignty: The U.S. Must Recognize Indigenous Rights to Spectrum
By Darrah Blackwater

Arizona–Tribal 2021 Gaming Compact Amendments: What You Need to Know
By Heidi McNeil Staudenmaier and Ed Hermes

Bent But Not Broken – ICWA Stands: A Summary of “Brackeen v. Haaland”
By Glennas’ba Augborne Arents and April E. Olson

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 February 11, 2022.  The draft of the article for a selected proposal will be due on March 18, 2022.  Final drafts of selected articles are due by April 25, 2022.

If you would like to submit a proposal or if you have questions, please contact:

Glennas’ba Augborne Arents, Secretary, Indian Law Section
gaugborne@rothsteinlaw.com

Or

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

Inclusion on the bench

Representation in Arizona

Of the 26 elected justices of the peace in Maricopa County, Judge Deborah Ann Begay (’10) is representing Indian Country in a big way! In January 2021, Begay made history by becoming the first Native American justice of the peace in Maricopa County and whose swearing in was administered by Navajo Nation President Jonathan Nez. After a full year sitting on the bench, she understands the need to serve and empower underrepresented communities. 

“Because the judicial system has historically been ruled by cisgender white men, people may have biases against judges who do not look like they expect them to,” said Begay in an Arizona Republic article “Maricopa County Justice Courts lead way on representation.” 

Your impactful service is so inspiring and we are proud of you, Judge Begay!

See more of Begay’s personal swearing-in ceremony in ILP blogpost Alumni: Taking the Oath in a Pandemic

(Photo courtesy The Arizona Republic)

Success at the Ninth Circuit Court of Appeals for the Indian Legal Clinic

The Indian Legal Clinic represented the appellants in the United States Court of Appeals for the Ninth Circuit (Case no. 21-35230, Newtok Village v. Andy Patrick) in an appeal from the United States District Court for the District of Alaska that involved defending tribal sovereignty from unlawful intrusion by federal courts.

On behalf of their clients, the clinic appealed an adverse permanent injunction issued by the District Court of Alaska and argued that tribal sovereignty to resolve intratribal disputes prevents federal courts from intervening on such matters and that the District Court of Alaska lacked jurisdiction. On December 22, 2021, the Ninth Circuit unanimously agreed with the appellants’ arguments and vacated the district court’s orders. Judge Richard C. Tallman wrote the opinion, concluding, “Continuing to enforce the permanent injunction here risks the federal court’s impermissible involvement in interpreting the Tribe’s constitution and laws.” 

Indian Legal Clinic Director Patty Ferguson-Bohnee argued the case before the Ninth Circuit Court of Appeals on November 9, 2021. Watch the recording of the oral argument. Vinnie Amato (3L) assisted with research, and Native Vote Fellow Torey Dolan (’19) and Jens Camp (’21) assisted in drafting the briefs before the Ninth Circuit. Jacob Broussard (3L) provided notes for the oral argument prep, and Native Vote Fellow Blair Tarman-Toner (’21) and Dolan assisted in preparing and refining Ferguson-Bohnee’s oral argument. The clinic collaborated with co-counsel James J. Davis, Jr. of the Northern Justice Project LLC in Anchorage, Alaska.

Native Vote

Mapping the next election

Redistricting

The State is wrapping up its redistricting efforts, and the Arizona Independent Redistricting Commission will finalize the legislative and congressional maps early next week. Native Vote Fellow Blair Tarman-Toner (’21) tracked the Commission’s deliberations over the course of its 14 decision-making meetings, as well as tracked  the public comments made at 32 public hearings. Tarman-Toner also regularly presented to tribes on the redistricting process, assisted tribes in drafting public comments, and submitted oral and written comment regarding the importance of complying with the Voting Rights Act and maintaining a strong Native American majority-minority district.  

2022 Legislative Session

The Indian Legal Clinic has kicked off its Native Vote policy project with the start of the legislative session this week. The project will focus on tracking bills that impact voting and keeping tribes informed and involved regarding how those bills will impact their tribal members. The clinic will also work with other voting rights organizations through the Arizona Voting Rights Defense Coalition. Native Vote Fellow Torey Dolan (’19) serves on the Coalition’s Coordinating Committee that manages the broader Coalition. 

____

Blair Tarman-Toner (’21)
Native Vote Fellow, Indian Legal Program, ASU Law

Job Opportunity: Staff Attorney

The ACLU seeks applicants for the full-time position of Staff Attorney in the Racial Justice Program of the ACLU’s National office in New York, NY or Remote.

The Racial Justice Program (RJP) is part of the ACLU’s Trone Center for Justice and Equality, and works on a broad range of racial justice issues.

See full job posting.

ILP Family legacy

Native American Heritage Month

ASU's Native American Law Students Association (NALSA) president and 2L Ashleigh Fixico (Muscogee Creek Nation) rocking her mocs

As a team representing 10 tribes at the Sandra Day O’Connor College of Law, the Indian Legal Program aims to educate and celebrate on the ancestral lands of the Akimel O’odham. The program was established 33 years ago by the efforts of two ASU Law students – Gloria Kindig (’89) and LynDee Wells (’89). Over the years, we have excelled and built on that vision and created the Indian Legal Clinic, the Arizona Native Vote Election Protection Project, the Indian Wills Clinic, the Pathway to Law Initiative, the Rosette LLP American Indian Economic Development Program, and the Indian Gaming and Tribal Self-Governance programs.

  • Kate Rosier (Comanche), ILP Executive Director and Assistant Dean of Institutional Progress
  • Patty Ferguson-Bohnee (Pointe-au-Chien), ILP Faculty Director and Indian Legal Clinic Director
  • Professor Robert Miller (Eastern Shawnee), Willard H. Pedrick Distinguished Research Scholar and Director of the Rosette LLP American Indian Economic Development Program
  • Professor Stacy Leeds (Cherokee), Foundation Professor of Law and Leadership
  • Professor Trevor Reed (Hopi), Associate Professor of Law
  • Professor Ann Marie Bledsoe Downes (’94) (Winnebago Tribe of Nebraska), Professor of Practice and Director of the Indian Gaming and Tribal Self-Governance Programs
  • Professor Derrick Beetso (’10) (Navajo), Director of the Indian Gaming and Tribal Self-Governance Programs
  • Professor Helen Burtis (’07), Faculty Associate
  • Professor Lance Morgan (Winnebago Tribe of Nebraska), Faculty Associate
  • Professor Pilar Thomas (Pascua Yaqui Tribe of Arizona), Faculty Associate
  • Danielle Williams (Navajo), Program Coordinator Sr
  • Theresa Beaulieu (Stockbridge-Munsee), Program Coordinator
  • Honore Callingham (’18), Senior Specialist, Indian Legal Clinic
  • Torey Dolan (’19) (Choctaw Nation of Oklahoma), Native Vote Policy Fellow, Indian Legal Clinic
  • Blair Tarman (’21) (Chickasaw), Native Vote Policy Fellow, Indian Legal Clinic

In addition to the JD program, we also offer a Master of Laws (LLM) program and Master of Legal Studies (MLS) program. 

We’ve expanded our presence in Nebraska, California and Washington, D.C. We are a growing network because law is a growing field. Over 375 ILP students have graduated from ASU Law and over 150 received a certificate in Indian Law. 

Today, we are proud to have 72 students representing 36 tribes: 44 JD, 1 LLM and 27 MLS. 

To our entire ILP family: Happy Native American Heritage Month!

Performing Estate Planning in Indian Country

The Indian Legal Clinic successfully and safely completed two in-person Indian Wills Clinics with Quechan Indian Tribe and Pechanga Band of Luiseño Indians. Under the direction of Professor Helen Burtis (’07), 3L student attorneys Jacob Broussard, Liliana Elliot, Lindsay Ficklin, Zaine Ristau and Dwight Witherspoon drafted estate planning documents that are designed to provide allotment owners with wills that conform to the provisions of American Indian Probate Reform Act. The past few years have highlighted the need for elders especially to execute Indian wills.

In September, the clinic executed 14 wills for members of the Quechan Indian Tribe near Yuma, Arizona. In October, the clinic executed 16 wills for members of the Pechanga Band of Luiseño Indians in Temecula, California. 

Students appreciated the hands-on experience with Native American clients, especially being able to interact with clients in person again, albeit with safety precautions. “I find doing the Wills Clinic really rewarding,” said Elliott. “I learned a lot that I think will be helpful as a future Indian Law attorney.” 

Witherspoon added, “I appreciate working with Native American clients and assisting them with their allotments that pertain specifically to Native American clients in addressing their estate planning needs.” 

We appreciate the tribes for their generous hospitality and hosting the Indian Wills Clinic at their facilities. The clinic is planning additional Indian Wills Clinics for next semester. 

Judicial Vacancy Announcement – Tohono O’odham Legislative Branch

Sells, Arizona
Tohono O’odham Judicial Court

Closing date: Monday, August 2, 2021
Position: Judge (one position)
Term: One term ending January 31, 2023

Length of Employment:
The Nation’s judges are appointed by the Tohono O’odham Legislative Council and serve six-year terms until a successor is appointed and sworn in. A Nation’s judge is eligible for reappointment to additional terms in office.

Qualifications:
1) Possess a juris doctorate degree and be licensed to practice in any state, be a member in good standing with a state bar association, and have at least three years of experience as a practicing attorney;
2) Possess an associate’s degree and be an enrolled member of the Nation, and have served as a judge for at least six years or have at least ten years of work experience and training in a judicial or law-related field.
NOTE: See 6 T.O.C. Chapter 1, Subsection 1103(C) at http://tolc-nsn.gov/docs/Title6Ch1.pdf for additional requirements and disqualifications.

See full vacancy description here.

Application requirements:
Applicants are strongly encouraged to submit materials electronically.
Interested applicants should submit a letter of interest, resume, three writing samples, and three reference letters along with the completed application forms available at http://tolc-nsn.gov/ to:

ATTN: Leander V. Mase, Chairperson
Judiciary Committee
Tohono O’odham Legislative Branch
Post Office Box 837
Sells, Arizona 85634
(520) 383-5260 leander.mase@tonation-nsn.gov

McGirt v. Oklahoma Supreme Court Decision: Treaties Upheld

On July 9, 2020, the Supreme Court issued its decision in McGirt v. Oklahoma and affirmed that the Muscogee Creek Nation’s reservation was never disestablished. The majority opinion strongly affirmed what Native people have known: Treaty rights are the Supreme Law of the land and do not fade with time. This historic decision is a strong vindication of the Muscogee Creek Nation’s treaty and a promising decision for all treaties. 

In their 2L year, Dylan West (Choctaw) and Blair Tarman (Chickasaw) assisted Professor Stacy Leeds (Cherokee) on the Cherokee Nation’s amicus brief.  Read the amicus brief on behalf of Cherokee here. Professor Leeds was the Salt River Pima-Maricopa Indian Community distinguished visiting Indian Law professor at ASU Law during Fall 2019 semester and taught Federal Indian law. 

From this monumental and victorious decision, people of the ILP quickly took action and poured their energy into their work.

In his interview with the Voice of America (VOA) News, Professor Robert Miller (Eastern Shawnee) stated, “The Court is upholding this 1832 treaty that the Creek Nation signed with the United States, and is holding the United States to those promises.” Watch full video here. Miller also presented, “McGirt v. Oklahoma: Understanding the Decision and its Implications for Indian Country” for the Oregon Historical Society. Watch Miller’s presentation  here.

Professor Larry Roberts (Oneida) said, “today’s decision is a significant win for the Muscogee (Creek) Nation and for Tribal Nations across the country. With the Muscogee (Creek) Nation facing opposition from the Trump Administration, this Court made clear that treaties mean something – that they are the supreme law of the land,” in his article for ASU’s American Indian Policy Institute blog. Read blog more here.

“This opinion was not given without opposition, nor does it bar Congress from breaking the treaties in the future,” said rising 2L Taylor Norman (Muscogee Creek). “What it does mean, however, is that rather than kneel to lazy reasoning or racist objection, the Supreme Court of the United States did not break any treaties today.” Read Norman’s full piece here

Joe Keene (’12) (Osage) and Candace French (’17) (Wichita and Affiliated Tribes) recently published an article for Sacks Tierney P.A. summarizing the McGirt case. Read the article here.

The McGirt decision sparked many conversations across Indian Country and to help bring further awareness and understanding, the Indian Legal Program hosted a case overview. “The most significant Indian Law case of the century: McGirt v. Oklahoma” webinar was held on Thursday, July 23.

  • Professor Larry Roberts (Oneida) – Moderator, Executive Director of the Indian Gaming and Tribal Self-Governance Program and Professor of Practice at the Sandra Day O’Connor College of Law 
  • Stacy Leeds (Cherokee) – Vice Chancellor for Economic Development, Dean Emeritus and Professor of Law at the University of Arkansas 
  • Professor Robert Miller (Eastern Shawnee) – Faculty Director, Rosette LLP American Indian Economic Development Program and Pedrick Distinguished Research Scholar at the Sandra Day O’Connor College of Law 
  • Jonodev Chaudhuri (Muscogee Creek Nation) – Ambassador, Muscogee Creek Nation, Partner, Quarles & Brady 
  • Derrick Beetso (’10) (Navajo) – General Counsel, National Congress of American Indian

In November, 1L Ashleigh Fixico (Muscogee Creek Nation) presented on a panel “We Hold the Government to Its Word: A Conversation about McGirt v. Oklahoma.” 

Since the McGirt decision, ILP’s Federal Indian law experts Professor Leeds and Professor Miller have been called for consultation. 

Three weeks after the McGirt decision, Leeds was appointed a judge for the Muscogee (Creek) Nation—the tribe whose boundaries were affirmed in the decision—and continues to hear cases there throughout the year. She also published two articles about the McGirt decision, one dealing with Supreme Court trends and one dealing with Indian taxation.

Professor Miller who not only published his articles, also presented multiple times. Review the full list of his participation here.

This opinion was released during great strife due to the COVID-19 pandemic and continuing racial injustice, but it has brought renewed hope that in this modern era of self-determination for Indian Country the courts will continue to vindicate the rights our ancestors thoughtfully secured for us.  

____
Torey Dolan (’19)
Native Vote Fellow, Indian Legal Clinic, ASU Law

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

Professor Miller and the McGirt case

It’s almost been a year since the Supreme Court issued its decision in McGirt v. Oklahoma on July 9, 2020 and affirmed that the Muscogee Creek Nation’s reservation was never disestablished. The majority opinion strongly affirmed what Native people have known: Treaty rights are the Supreme Law of the land and do not fade with time. This historic decision created dialogue and research for Indian Country, especially for Federal Indian Law experts like Professor Robert J. Miller. It’s been “all McGirt, all the time,” he says.

2020

On July 12, 2020 Professor Miller was quoted in the Arizona Republic article on the McGirt case. Read article here.

On July 14, Professor Miller along with Professor Larry Roberts, presented on McGirt case to the ILP students.

On July 23, the Indian Legal Program at the Sandra Day O’Connor College of Law at ASU hosted, “The Most Significant Indian law Case of the Century: McGirt v. Oklahoma,” webinar that offered an in-depth case overview, ” which included presenters: Professor Miller, Professor Stacy Leeds, Derrick Beetso (’10), Ambassador, Muscogee Creek Nation Ambassador Jonodev Chaudhuri and moderated by Professor Roberts. View the recording here.

On July 30, Professor Miller gave a two-hour Indian law training for the U.S. DOE Bonneville Power Administration and discussed McGirt case at length.

In July,  Professor Miller stated, “The Court is upholding this 1832 treaty that the Creek Nation signed with the United States, and is holding the United States to those promises” during his interview with the Voice of America (VOA) News. Watch full video here.

Professor Miller also presented, “McGirt v. Oklahoma: Understanding the Decision and its Implications for Indian Country” for the Oregon Historical Society. Watch Miller’s presentation here.

On August 4, Professor Miller co-presented a McGirt webinar for the American Indian Community House in New York City.

On August 31, Professor Miller presented on his upcoming paper “The Indian Law Bombshell: McGirt v. Oklahoma” to law school faculty. Co-author Native Vote Fellow Torey Dolan (’19) joined the discussion. Miller and Dolan published their law review draft article, “The Indian Law Bombshell: McGirt v. Oklahoma” in the SSRN. Read the draft article here.

Professor Miller drafted an 800-word blurb on the McGirt decision for the American Association of Law Schools’ (AALS) Indigenous Nations section newsletter.

On September 15, Professor Miller was a guest on the daily radio program Native America Calling to speak about the McGirt case. Listen here.

On September 17, Professor Miller was a panelist on a 90-minute Zoom conference for the Northeast Corporate Counsel Organization Diversity & Equity Committee and he spoke about the McGirt decision and its impact on corporate clients in Oklahoma. 

On October 26, Professor Miller spoke on a panel session about McGirt for Boston College Law School.

On November 4, Professor Miller gave a keynote speech on McGirt for the “American Society for Ethnohistory Annual Conference” at University of North Carolina. 

On November 13, Professor Miller participated in the Oregon State Bar CLE panel and discussed the McGirt case.

On November 19, Professor Miller presented a one-hour speech for the American Philosophical Society on the McGirt case. Watch the recording here.

On December 11, Professor Miller gave a presentation on his current research on the landmark Supreme Court decision in McGirt v. Oklahoma for ASU’s Indigenous Research Roundtable (IRR).

2021

On Febuary 26, 2021, Professor Miller and Dean Elizabeth Kronk-Warner gave a luncheon talk on McGirt at the George Washington School of Law.

Professor Miller and Professor Robbie Ethridge from University of Mississippi signed a contract to write a book on McGirt for the University of Oklahoma Press.

In April, Professor Miller and Torey Dolan (’19) published their law review draft article, “The Indian Law Bombshell: McGirt v. Oklahoma” in the SSRN. Read the draft article here.

Professor Miller published two short essays for the University of Pennsylvania School of Law’s Regulatory Review journal on the McGirt case and private sector economic development on reservations. 

Professor Miller published the 5,500 word cover article “McGirt v. Oklahoma: The Indian Law Bombshell.” in the April edition of the Federal Lawyer magazine for the Federal Bar Association.

Professor Miller and Torey Dolan (’19) accepted an offer to publish their article “The Indian Law Bombshell: McGirt v. Oklahoma” in 101 Boston University Law Review (2021).