Repatriation of cultural objects

This year, the Indian Legal Clinic (ILC) student attorneys Brittany Habbart (3L) and Ruben Zendejas (3L) prepared a comment on the repatriation of cultural objects for a new Austrian repatriation project created by the Advisory Committee for Guidelines for Collections in Austrian Federal Museums from Colonial Contexts convened by the Federal Ministry of Arts, Culture, Civil Service and Sport (BMKÖS). BMKÖS requested comments and suggestions while Austria is considering new laws and policies about when to repatriate and the process of repatriation for a variety of materials. Certain items within Austria’s collections have a history of colonialism, violence, or otherwise did not have meaningful consent. The country has opened the important discussion about the way museums acquired their collections, including Austria’s federal museums, and how to address those items present-day. 

The ILC comment suggests, “that meaningful repatriation policy consider all cultural items from historically colonized communities to be subject to and open for repatriation; make considerations for formally recognized indigenous governments, as well as other smaller indigenous communities and even, if necessary, individual claimants; and, the burden of proof be not placed solely on Indigenous communities, but on the western institutions themselves. Further we advise the museum to consider the possibility of digital repatriation — the authorization of licenses, copyrights, etc. — where physical repatriation is not wanted, needed, or possible.” 

The Indian Legal Clinic worked with Professor Trevor Reed to prepare the comment.

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Helen Burtis (’07)
Faculty Associate, Indian Legal Clinic, ASU Law

Honorable Peterson Zah’s advocacy and leadership

The late Honorable Peterson Zah was a dedicated leader to the Navajo Nation, ASU, the Indian Legal Program and all Native students. Zah was the First President and Last Chairman of the Navajo Nation. What many people do not realize is that Zah served as the Executive Director of the DNA People’s Legal Services for 14 years. Under Zah’s leadership several cases advancing tribal sovereignty went before the U.S. Supreme Court. In the early 1970s when Judge William C. Canby Jr. was teaching Indian Law at ASU and training talented Native students, Zah was fighting in the courts and seeing the need for Native attorneys. Zah worked with and hired some of ASU Law’s first Indian students taught by Judge Canby – Claudeen Bates Arthur (’74), Ben Hanley (’71), Louis Denetsosie (’74) and Herb Yazzie (’75) to name a few. 

During Zah’s career he fought for education, helped raise funds for scholarships for Native students and encouraged students to go to law school. Zah was able to work with people at all levels of government to help his Nation. In 1995 Zah continued to use these skills at ASU to bridge the gap between Tribes and ASU. Zah personally helped secure the ASU Law/ Navajo Nation matching funds scholarship program to enable Navajo students to get an affordable legal education at ASU Law. 

As a thank you for his service and his advocacy for tribes and tribal people, ASU Law honored President Peterson Zah in 2017 by announcing the naming of the “President Peterson Zah Active Learning Classroom.” The active learning classroom was selected for Zah because the room allows people to work together on projects and strategize to find solutions just as Zah did throughout his life. This room is located on the 3rd Floor of the Sandra Day O’Connor College of Law at ASU’s downtown Phoenix campus.

Honorable Peterson Zah’s advocacy, leadership and friendship will be missed but not forgotten.

Tribal Nations and Abortion Access: A Path Forward

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

Programs host event at ASU’s California Center

On June 23, the Indian Gaming and Tribal Self-Governance programs traveled to ASU’s California Center in downtown Los Angeles to present “Indian Law and Policy Now.” The community education event was held in the Yuhaaviatam of San Manuel Event Center and co-hosted by the programs and the Academy for Justice. We were delighted that Business Council Member at-large Laurena Bolden, of the San Manuel Band of Mission Indians, was able to provide opening remarks and a blessing to begin the event.

The morning session was hosted by ASU Law Director Derrick Beetso (’10) who presented on the “Foundations of Federal Indian Law and Policy” to help set the stage for the day’s discussion. This was followed by a dynamic panel, VAWA 2022: How We Got Here & Where We Came From. The panel was moderated by Academy for Justice Founder and FacultyDirector Erik Luna and panelists included Stacy Leeds , ASU’s Law’s Foundation Professor of Law and Leadership; Lauren Van Schilfgaarde, UCLA’s San Manuel Band of Mission Indians Tribal Legal Development Clinic director; and Esther Labrado, attorney at Drummond Woodsum. 

This fascinating discussion tracked the history leading up to the historic tribal provisions in the 2013 Reauthorization of VAWA and the more recent expansions of those key provisions in the 2022 Reauthorization of VAWA which were passed and signed into law earlier this year.

The afternoon session closed with Director Beetso and two ILP Salt River Scholars, Noah Goldenberg (3L) and Sophie Staires (2L), summarizing recent proposals by the Bureau of Indian Affairs (BIA) affecting Indian lands and tribal gaming compacts. The BIA has hosted a series of consultations on these proposals and solicited comments from Indian tribes on a number of specific questions. Beetso, Goldenberg, and Staires provided important context for the recent actions, explained the consultation process, and provided broad responses and thoughts to many of the questions proposed by the BIA. 

This event was made possible with the generous support of the San Manuel Band of Mission Indians, the Mohegan Tribe, the Shakopee Mdewakanton Sioux Community, and others.  

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. 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. 

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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.