Category Archives: Research

Johnson v. M’Intosh

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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.

The Aftermath of Castro-Huerta

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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.”

Collaborative publications

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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

Brilliant Success

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Gathering of Indigenous Legal Scholars

On Dec. 8-9, the ILP and the Native Nations Law and Policy Center at UCLA School of Law teamed up and welcomed current and future Indigenous law faculty from across the country to participate in the “Gathering of Indigenous Legal Scholars” at ASU Law. The purpose of this gathering was to cultivate a community of support for current and future legal scholars across the fields of federal Indian law and tribal law.
On the first day, four emerging Indigenous scholars presented their research to the 25 Indigenous law professors in attendance. The faculty then presented a hybrid-format webinar, “Launching Your Academic Career,” to share knowledge, tips and advice for entering the academic job market. On day two, junior and senior faculty in the field shared their current research with one another. 

The overall event highlighted just how robust scholarship in the field of Indigenous law has become, and how important rigorous legal research is to Indigenous peoples and the development of law and legal systems intended to meet their needs. The event built on previous gatherings for emerging Indigenous faculty organized by senior Indigenous scholars, including Professor Robert J. Miller. 

We are delighted that five ILP affiliates participated: Native Vote Fellow Torey Dolan (’19) presented “Reviving the Promises of the Indian Citizenship Act: Congress’ Trust Obligations to Protect the Native Vote,” Professor Patty Ferguson-Bohnee presented “Self-Determination in a Sinking Basin,” Professor Stacy Leeds presented “Essentials of Going on the Legal-Academic Job Market”, Professor Miller served on the roundtable “Developing Your Research Agenda” and Professor Trevor Reed presented “Restorative Licensing.”

We appreciate our co-host the Native Nations Law and Policy Center at UCLA School of Law and all participants for making this a successful event.

Professor Miller and the McGirt case

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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).

Indigenous Research Roundtable

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Connecting Indigenous Scholars across ASU

For several years now, ASU’s Indigenous Research Roundtable (IRR) has connected Indigenous scholars and allies through a monthly seminar featuring new, cutting-edge scholarship conducted with, by and for Indigenous communities. The IRR was originally organized by Dr. Angela Gonzales from ASU’s School of Social Transformation and hosted at Tempe campus. As the ASU Downtown campus has grown to include numerous ASU colleges, schools and programs serving Indian Country—including Social Work, Journalism, Health Sciences, Law and many others—the IRR is, for the first time, being hosted by two downtown campus Indigenous faculty, ASU Law Professor Trevor Reed and School of Social Work Professor Felicia Mitchell.

“As a new faculty member at ASU, IRR provided me opportunities to meet and connect with Indigenous scholars and allies across ASU,” said Professor Mitchell. “The IRR has also been a supportive space to highlight the important work my colleagues and I are involved in throughout Indian Country.”

In the fall semester, the IRR featured two thought-provoking presentations showcasing the diversity of Indigenous research happening at ASU. On Nov. 4, Professors David Manuel-Navarrete and Tod D. Swanson shared their experiences establishing a new field school in partnership with Tribes in the Ecuadorian Amazon. The field school educates university students from around the world about Kichwa approaches to climate science and biodiversity while also providing a stream of sustainable income for Kichwa peoples. On Dec. 9, Professor Matt Ignacio presented the results of his groundbreaking study of harm-reduction interventions aimed at Indigenous youth who may be at risk for alcohol and other drug use. Then on Jan. 27, School of Social Work Professor Shanondora Billiot shared her research on the effects of land-based healing programs on the mental health and wellbeing of Indigenous communities in Louisiana. Ending the roundtable sessions for the academic year,  Professor Robert J. Miller presented his current research on the landmark Supreme Court decision in McGirt v. Oklahoma on March 24. 

For more information about the Indigenous Research Roundtable or to participate in a roundtable next year, please contact Professor Reed at t.reed@asu.edu.

“Cultural Misappropriation” – Professor Reed 3/31

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Professor Trevor Reed is giving a presentation on Wednesday, March 31 at 5:30-7:30pm EST for Intellectual Property Law Association on “Cultural Misappropriation.”

Register for free to join.

About the program: What is cultural misappropriation and why does it matter? Tune in for a conversation between legal experts and activists covering Copyright and Trademark issues of cultural misappropriation such as the Washington pro football team (Harjo v. Pro Football and its relationship with Matal v. Tam), fashion (Urban Outfitters v. Navajo), photography and music on reservations, and traditional knowledge labeling

Indigenous Research Roundtable

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Connecting Indigenous Scholars across ASU

For several years now, ASU’s Indigenous Research Roundtable (IRR) has connected Indigenous scholars and allies through a monthly seminar featuring new, cutting-edge scholarship conducted with, by and for Indigenous communities. The IRR was originally organized by Dr. Angela Gonzales from ASU’s School of Social Transformation and hosted at Tempe campus. As the ASU Downtown campus has grown to include numerous ASU colleges, schools and programs serving Indian Country—including Social Work, Journalism, Health Sciences, Law and many others—the IRR is for the first time being hosted by two downtown campus Indigenous faculty, ASU Law Professor Trevor Reed and School of Social Work Professor Felicia Mitchell.

In the fall semester, the IRR featured two thought-provoking presentations showcasing the diversity of Indigenous research happening at ASU. On Nov. 4, Professors David Manuel-Navarrete and Tod D. Swanson shared their experiences establishing a new field school in partnership with Tribes in the Ecuadorian Amazon. The field school educates university students from around the world about Kichwa approaches to climate science and biodiversity while also providing a stream of sustainable income for Kichwa peoples. On Dec. 9, Professor Matt Ignacio presented the results of his groundbreaking study of harm-reduction interventions aimed at Indigenous youth who may be at risk for alcohol and other drug use.

Prof. Matt Ignacio's IRR presentation

This upcoming spring semester, the IRR will feature presentations by ASU Law Professor Robert J. Miller who will present his current research on the landmark Supreme Court decision in McGirt v. Oklahoma. School of Social Work Professor Shanondora Billiot will share her research on the effects of land-based healing programs on the mental health and wellbeing of Indigenous communities in Louisiana.

For more information about the Indigenous Research Roundtable or to participate in an upcoming roundtable please contact Professor Trevor Reed at t.reed@asu.edu.

Professor Reed published his article in the SSRN

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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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Welcome: Meet People of the ILP

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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.

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