ILC: 2022 Year in Review

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

ASU ILP’s Native Vote Recap

This year, Professor Patty Ferguson-Bohnee and Native Vote Fellows Torey Dolan (’19) and Blair Tarman-Toner (’21) worked on a variety of voting rights issues. The goals of the Arizona Native Vote Election Protection Project at ASU Law for this year was to: analyze the 2020 election cycle, track democracy developments in the state legislature and with the Arizona Independent Redistricting Commission, and prepare for the upcoming midterm election.

Mapping & Redistricting
The U.S. Constitution requires states to redraw their congressional and state legislative district boundaries every 10 years following each decennial Census. The goal of redistricting is to protect the constitutional right to “one person, one vote” by ensuring that each district has approximately the same number of people. In Arizona, the Independent Redistricting Commission (IRC) is tasked with redrawing the State’s congressional and state legislative districts. 

Why It’s Important for Arizona Native Voters
Ensuring that the redistricting process remains fair is critical for Native American voters in Arizona, as it determines whether voters can elect their candidates of choice into state and federal offices. The redistricting process ultimately determines access to resources as well as a communities’ political representation.

ILC Redistricting Efforts
Tarman-Toner joined the Native Vote team as a Native Vote Fellow and hit the ground running by tracking the Arizona Independent Redistricting Commission as they redrew the State’s congressional and legislative districts. Tarman-Toner tracked the Commission’s deliberations over the course of its fourteen decision-making meetings as well as tracked the public comments made at thirty-two public hearings. The ILC created a redistricting guide, regularly presented to Tribes regarding the redistricting process, and assisted Tribes in drafting public comments. The ILC submitted oral and written testimony regarding compliance with the Voting Rights Act, maintenance of a strong Native American majority-minority district, and respecting reservation boundaries as communities of interest.

Tarman-Toner also created a redistricting summary from the 2021 redistricting cycle to share with Tribes.

Dolan was recently quoted in The Guardian’s article “Redrawn Arizona congressional map drains Native American voting power.”

Litigation
In September 2021, the Pascua Yaqui Tribe reached a settlement with Pima County to restore  an in-person early voting location on the reservation. This provides voters living on the reservation an opportunity to vote in-person early, safely, and in their community just as other Arizonans have voted across Pima County for the past four years. The settlement agreement also provides for cooperation on voter registration and outreach. Student attorneys at the time Aspen Miller (’21), Jens Camp (’21) worked with Ferguson-Bohnee and Dolan to prepare for the preliminary injunction hearing in Fall 2020. 

In April 2022, ILP legal team defends voting rights in Arizona. ILP advisory council member Judith Dworkin (JD ’86) and Ferguson-Bohnee represented the Inter Tribal Association of Arizona in an amicus brief regarding the constitutionality of early voting.  Dolan and Tarman-Toner assisted in drafting the brief.

Testimony and Reports
The Native Vote Election Protection Project actively to protect the rights of Native American voters in Arizona. On October 27,  Ferguson-Bohnee testified at the “Voting Matters in Native Communities Hearing” before the Senate Committee on Indian Affairs. Native Vote Fellows Dolan and Tarman helped prepare the testimony that was delivered to the Committee.

Dolan and Tarman-Toner co-authored an article discussing the Native American Voting Rights Act for the Daily Journal.

The team issued its 2018 Native Vote Election Protection Project Report, which details voter issues faced by Tribal voters in the 2018 election. 

Legislative Analysis
Throughout the 2022 Legislative Session, Dolan and Tarman-Toner tracked bills impacting the right to vote and identified 142 democracy-related bills in the Arizona State Legislature—72 in the Senate and 70 in the House of Representatives.

Outreach
The ILC coordinated with its voting partners, Tribes, and counties to address issues in anticipation of the 2022 election cycle. As members of the Arizona Native Vote Coalition, the ILC worked with ITCA and All Voting is Local to host and present at monthly Native Vote Strategy Sessions. In addition to strategic planning for 2022, Dolan and Tarman-Toner regularly provided legislative analysis and updates to Tribes at the sessions.

In September 2021, Ferguson-Bohnee emceed the Secretary of State’s first-ever Tribal Nations Conference. 

On May 4, the ILC joined the “May the Vote Be With You” event organized by Angela Salazar-Willeford (MLS ’22) and hosted by her tribe Salt River-Maricopa Indian Community and ITCA.

Native Vote: Preparing for 2022

Last month, the White House issued the “Report of the Interagency Steering Group on Native American Voting Rights” after hosting a series of regional consultations with tribal leaders and members and engaging in listening sessions with organizations advocating for improved tribal voting rights. ASU Law’s Indian Legal Clinic participated in the White House consultations as part of the clinic’s Arizona Native Vote Election Protection Project. The White House report explores the problems that Native American voters face and presents best practices and recommendations to mitigate and eliminate barriers that Native American voters encounter. The report featured the clinic’s polling locator tool created by Native Vote Fellow Torey Dolan (’19). 

In response to a special action petition filed in the Arizona Supreme Court challenging the constitutionality of early voting in Arizona, Patty Ferguson-Bohnee and Judy Dworkin (JD ’86) represented the Inter Tribal Association of Arizona, Inc. (ITCA) in an amicus brief in the case. The amicus explained the history of Native American disenfranchisement in Arizona, that early voting is constitutional, that all early voting options are needed to address the unique barriers experienced by Native American voters, and that eliminating drop boxes and in-person early voting may expose Arizona to federal litigation. Native Vote Fellows Dolan and Blair Tarman-Toner (’20) assisted in drafting the brief.

The ITCA hosts monthly “Native Vote Strategy Sessions” to assist tribal governments in planning for upcoming elections. Native Vote Fellows Dolan and Tarman-Toner provided a legislative update at the “March Strategy Session.” Dolan and Tarman-Toner are continuing to track bills in the Arizona State Legislature that impact voting in tribal communities. 

We appreciate our valuable Native Vote partners and the ongoing efforts that impact our voting power.

____

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

ILC Students at Ak-Chin Court

On March 15, Gwendolyn Bell (2L) and David Streamer (3L) appeared in court for the first time as student attorneys. Bell and Streamer represented their clients at arraignment hearings at the Ak-Chin Indian Community Court in Maricopa, Arizona. Although both students had just returned from Nebraska where they participated in the ILP traveling class, “Contemporary Issues in Tribal Economic Development,” they entered the hearings with successfully negotiated plea agreements and their clients were released later that day after the judge accepted the plea agreements. 

The Indian Legal Clinic appreciates the guidance of Chief Judge Yancy Jencsok provides to clinic students during their formative career experiences.

Meeting Estate Planning Needs

Over the past month, the Indian Legal Clinic (ILC) has continued to assist tribal members with their estate planning. On Feb. 25-26, Professor Helen Burtis (’07) and clinic students Gwendolyn Bell (2L), Ryan Maxey (2L), Lena Neuner (2L), Claire Newfeld (2L), Ravynn Nothstine (2L) and David Streamer (3L) travelled to Santa Rosa Rancheria, California to draft and execute wills for the Tachi Yokut Tribe.

Students enjoyed the opportunity to interact directly with tribal members and assist them with completing a challenging life step. This was the first Wills Clinic with the Tachi Yokut Tribe. The ILC thanks the Tachi Yokut Tribal Council, especially Councilman Bryce Baga, for organizing and sponsoring the Indian Wills Clinic. 

ILC presentation David Streamer, Gwendolyn Bell, Claire Newfeld

On March 2, Bell, Newfeld and Streamer presented live over Zoom to the Elders Council of the Mashantucket Pequot Tribal Nation in Connecticut. The students’ presentation included information on the importance of estate planning and how to prepare for the upcoming Wills Clinic. Members of the Elders Council were actively engaged in the presentation and prepared with many questions that students expertly fielded. 

The ILC is grateful to Chairperson Marjorie Colebut-Jackson and members of the Elders Council for joining the informational presentation and students look forward to meeting the Mashantucket Pequot elders again during the remote Indian Wills Clinic later this month. 

Native Vote: Tracking bills, tracking redistricting

Last month, the Arizona Native Vote Communications Working Group made its return. Native Vote Fellow Blair Tarman-Toner (’21) attended the group’s meeting, and she will participate in the planning and organizing of election education and outreach materials to share in tribal communities as the group continues to meet regularly. 

ASU Law’s Indian Legal Clinic has continued working on the Native Vote policy project since Arizona’s legislative session began last month. Native Vote Fellows Torey Dolan (’19) and Tarman-Toner will continue tracking bills that impact voting and will inform tribes as to how particular bills impact their tribal members. So far, the Indian Legal Clinic has identified 142 democracy-related bills in the Arizona Legislature – 72 in the Senate and 70 in the House of Representatives. Additionally, the clinic has continued its work with other voting rights organizations through the Arizona Voting Rights Defense Coalition. 

The Indian Legal Clinic is preparing to present at two upcoming meetings of the Inter Tribal Council of Arizona to discuss barriers to voting in Indian Country and the upcoming elections. 

Additionally, the Arizona Independent Redistricting Commission certified the state’s congressional and legislative maps. Tarman-Toner will continue tracking the county-level redistricting process. The county-level district lines must be finalized by July 1. 

ILC at Local Tribal Courthouse

The Indian Legal Clinic started off the semester with a visit to the Ak-Chin Indian Community Tribal Courthouse on Jan. 21. Chief Judge Yancy Jencsok led the tour for Professor Helen Burtis (’07) and student attorneys Gwendolyn Bell (2L), Ryan Maxey (2L), Lena Neuner (2L), Claire Newfeld (2L), Ravynn Nothstine (2L), and David Streamer (3L). Clinic students will become authorized to practice law before the Ak-Chin Indian Community Court and represent defendants.

“I have never been to a tribal courthouse, so it was an awesome experience to see and tour the courthouse with Chief Judge Jencsok,” said Streamer. “It was refreshing and inspiring to hear about Chief Judge Jencsok’s work and positive experiences with tribal courts, but more importantly it was nice to see that tribal courts like Ak-Chin Indian Community are operating, growing and have knowledgeable staff and judges like Chief Judge Jencsok.”

“It’s an empowering feeling to see a tribe exercise their sovereignty and jurisdiction,” said Nothstine. 

“Tribal courts are a literal concrete expression of a tribe’s sovereignty and it was an honor to have this opportunity to speak to Judge Jencsok about the role of the court in the community while familiarizing myself with a court I’d be practicing in with the clinic,” said Maxey.

We appreciate the Ak-Chin Indian Community Tribal Courthouse and Chief Judge Jencsok for the continued support.

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. Native Vote Fellow Torey Dolan (’19) and Jens Camp (’21) assisted in drafting the briefs before the Ninth Circuit. Dolan provided notes for the oral argument preparation, and Native Vote Fellow Blair Tarman-Toner (’21) and Dolan assisted in preparing and refining Ferguson-Bohnee’s oral argument. The ILC 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