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Last Post 30 Jun 2009 03:53 PM by  annedep
R-08-0016 Petition to Amend Rule 35(b) Arizona Rules of the Supreme Court
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Author Messages

06 May 2008 09:33 AM



    Robert B. Van Wyck
    Chief Bar Counsel
    State Bar of Arizona
    4201 N. 24th Street, Suite 200
    Phoenix, AZ 85016-6288
    Phone: 602 340-7241
    Fax: 602 271-4930

    Filed May 7, 2008

    ADOPTED as modified, effective January 1, 2012.

    20 Feb 2009 05:22 PM
    R-08-0016 Petition to Amend Rule 35(b) Arizona Rules of the Supreme Court

    Hon. Janet Napolitano, Governor
    State of Arizona
    Office of the Governor
    1700 W. Washington Street
    Phoenix, AZ 85007
    Ph: 602-542-4331
    Fax: 602-542-7601

    02 Apr 2009 12:09 PM
    R-08-0016 Petition to Amend Rule 35(b) Arizona Rules of the Supreme Court

    Theodore Campagnolo
    Vice-Chair, Committee on Examinations
    1501 W. Washington Street, Suite 104
    Phoenix, AZ 85007-3222
    Ph: 602-452-3971

    06 Apr 2009 04:44 PM
    Hon. Ruth V. McGregor
    Chief Justice of the Arizona Supreme Court

    I am writing in support of the Petition to Amend Rule 35(b) of the Arizona Rules of the Supreme Court, which seeks to include aspects of Indian law on the Arizona State Bar examination.

    A large part of my practice has been representing Indian tribes and their business entities, particularly involving personal injury claims and some commercial disputes. It is true that most every lawyer practicing in Arizona will face questions involving tribal law, and with increasing frequency, yet few are equipped to recognize fundamental principles of jurisdiction and sovereignty which go to the heart of every case. All too often new lawyers (as well as seasoned practitioners) simply do not appreciate these issues and pitfalls, which not only is a disservice to the client, it can be legal malpractice.

    "Indian law" is complex, and there are far too many issues to cover as a whole on the bar exam, which is all the more reason why lawyers should be able to recognize when an Indian law issue exists and be keenly aware that jurisdiction and sovereignty will be case dispositive. For example, most cases arising on a tribal reservation within the state of Arizona will implicate tribal court jurisdiction, and many commerical and tort remedies involving tribal govenments and business enterprises require an understanding tribal law and procedure will likely govern. A lawyer proceeding under the false assumption "Indian law" claims can be litigated in Federal Court will find the case dismissed leaving the client with no remedy, except against the lawyer.

    It is not too much to ask that applicants sitting for the Arizona Bar Examination be expected to understand that Indian tribes have a unique status as sovereign nations, and that claims involving tribal governments or occurring on tribal lands will necessarily require careful analysis and faithful adherence to the applicable rules of law and procedure. I strongly urge the Court to Amend Rule 35(b) to include these discrete issues of Indian law on the Arizona Bar Examination.

    Theodore A. Julian, Jr.
    702 E. Osborn, Suite 200
    Phoenix, AZ 85014


    28 Apr 2009 07:28 PM
    William C. Canby, Jr.
    401 W. Washington St. Spc 55
    Phoenix, AZ 85003-2156
    Phone: 602-322-7300
    Fax: 602-322-7309
    Bar No. 002926

    I urge the adoption of the proposed rule to include tribal jurisdiction and tribal sovereign immunity as areas that may be tested in the Arizona Bar Exam. I offer these comments as a student and former teacher, and writer, of Indian Law; my comments do not represent the views of the United States Court of
    Appeals of which I am a member.

    The purpose of the bar exam, of course, is to assure an adequate level of competence in Arizona practitioners of law. It is difficult to see how that level can be achieved without some basic knowledge of the general structure of Indian law. More than a quarter of the land mass of Arizona is Indian country, which is a term of art with enormous jurisdictional consequences for the state, federal and tribal courts. The 22 tribes that exercise sovereign authority over this expanse conduct an extraordinary amount of annual business, both in the legal and commercial sense. The influx of gaming revenues in the past several years has led to a huge increase in economic activity by the tribes, not only in the operation of casinos, but in numerous other economic activities made possible by increased resources. All of these endeavors are leading to greatly increased contact between the Indian and non-Indian populations of Arizona, with the usual legal consequences of such interaction. For example, Arizona Indian gaming compacts require tribes to make arrangements for dealing with tort claims of casino patrons. These arrangements are tribal, but an attorney representing a tort claimant may not think to look into the possible existence, and exclusivity, of tribal remedies if he or she is ignorant of the sovereign status of the tribe and its territory. The same problem potentially exists with the thousands of Arizona non-Indians who are employed, permanently or for specific projects, in Indian country, or who live on reservations and engage in consensual activities, including marriage, with Indians and their tribes. Many others engage in business transactions with tribes or their members. A competent attorney representing these clients needs to know threshold issues of jurisdiction and sovereign immunity that may affect or even determine the outcome of a claim arising from such activity.

    I have recently had occasion to survey the whole area of Indian Law over the period of the last five years, as part of updating a book on Indian law. I have done this several times before, but this time I was truly impressed with how many more cases of Indian law were decided by state and federal courts in the last five years, compared to the number in previous periods. The numbers are multiples of what they were fifteen years ago. I was especially struck by the large increase in cases challenging tribal sovereign immunity, generally without success. These cases reflect both increased litigation pressures and, likely, ignorance on the part of claimants about the existence or strength of tribal immunity. The increase in legal activity in Indian Law in general is undeniable. A quick Westlaw search in Arizona under key words "Indian" and "tribe" and "jurisdiction" brought up more than a dozen reported cases from the Arizona state appellate courts in the last two years. Arizona federal courts decide many more, and state and federal trial courts many more again. This is an area that the bar exam should not entirely overlook.

    The state bars of New Mexico, Washington, and South Dakota are in various stages of implementing the inclusion of Indian Law on their bar exams, and I am told some other states are considering the matter. Arizona is a prime candidate for two reasons. First, we have the most Indian country and the highest reservation population of any state. Second, like New Mexico, we are not a state subject to Public Law 280, which gave certain states civil and criminal adjudicatory jurisdiction over Indian country. A practitioner in a Public Law 280 state might be relatively safe in assuming that litigation will occur in state or federal, rather than tribal court, no matter where the claim arose. In a non-Public-Law-280 state like Arizona, that mistake may be fatal to a lawsuit because claims against Indians arising in Indian country lie within the exclusive jurisdiction of tribal court, even if the plaintiff is a non-Indian. What the practitioner does not know can hurt the client.

    The rule change proposed by the State Bar is a sensible and modest one. It does not require all practitioners to know the intricacies of Indian Law, but it does require them to know the potential jurisdictional and sovereign immunity problems that will require inquiry when they have a case with Indian country contacts. The chances that an Arizona practitioner will have such cases in the future are high, and ever increasing.

    For these reasons, I strongly and respectfully urge the adoption of the State Bar rule change. And I thank the Arizona Supreme Court for affording me the opportunity to express these views.

    William Canby

    05 May 2009 12:49 PM
    Honorable Ruth V. McGregor
    Chief Justice of the Arizona Supreme Court

    Dear Chief Justice McGregor:

    On behalf of the Indian Legal Program at the Sandra Day O'Connor College of Law, I am writing in support of the Petition to Amend Rule 35(b) of the Arizona Rules of the Supreme Court, to include basic principles of Federal Indian Law that concern jurisdiction and tribal sovereign immunity. I am aware that many key organizations and offices within the State have supported this change, including the Office of the Governor and the Arizona State, Tribal and Federal Court Forum. These statements outline in detail the substantial concerns that motivated the Petition and do not need to be duplicated in this letter. However, I also realize that the Arizona Supreme Court's Committee on Examinations continues to resist such a change, on the grounds that Indian law is "a specialized topic" that is not required by law schools, and that the bar exam is merely designed to test "core competencies needed to begin the practice of law" and not expertise within any particular area of specialization. I would like to respond specifically to that perspective, from my position as a law professor and Executive Director of the Indian Legal Program at the Sandra Day O'Connor College of Law.

    When I was in law school, the popular view was that Indian law was an esoteric subject understood only by a small subset of "experts" who delved into ancient treaties and the labyrinth of federal statutes and regulations that governs Indian lands and Indian tribes. The popular analogy was to "admiralty law" and students were advised to take such subjects, if and when they were ever offered, only out of interest and not because the issue would ever come up in practice. In the contemporary world, nothing could be further from the truth. Tribal governments today exercise active jurisdiction over their lands, and most have quite sophisticated executive, legislative and judicial structures, which must interact daily with federal and state government entities. This was the impetus behind the development of the Arizona State, Tribal and Federal Court Forum, which enhances coordination between all of these court systems, and is also represented by efforts within the Office of the Governor, which regularly sponsors state-tribal forums on a variety of subject areas requiring intergovernmental coordination, such as health, education, and environmental protection. The advent of Indian gaming and other forms of economic development on tribal land has attracted huge numbers of non-Indians to the reservation, and thus it can no longer be said that there is only a "remote" possibility of an "Indian law" case arising in the daily practice of a lawyer in Arizona. I regularly get calls from attorneys throughout the state seeking a "place to start" on Indian law issues, ranging from tort lawsuits to criminal defense actions, to contract actions, to property claims, to domestic relations actions where one spouse or party resides on the reservation. Many of these attorneys have never had Indian law and some only realize that they have an "Indian law" issue at a point in the litigation where interests of the client have already been compromised.

    In a state where over 25% of the land is tribal land, where there are 22 federally recognized tribal governments enacting laws to govern their lands and members, and where non-Indians go onto the reservation on a daily basis, it is incomprehensible that Arizona would not require some jurisdictional knowledge that there are tribal governments operating on tribal lands and that tribal governments enjoy sovereign immunity and other attributes of the sovereign powers enjoyed by other governments. That is the "competent practice" of law in Arizona and is surely a permissible standard to set for attorneys who aspire to practice within the state. By continuing the myth that Indian law is like admiralty law, we compromise the rights of clients and impose considerable burdens on the courts to protect rights (for example in an Indian Child Welfare Act case) which have not been identified by the attorney. That cannot be an acceptable result. The more appropriate analogy is probably to "community property" which is required by states such as Arizona and California that maintain community property systems, but may not be required in states that do not have this system of marital property.

    I believe that the proposed modification can be phased in, with appropriate notice to students, in ways that do not compromise interests of fairness, but instead enhance the ability of attorneys to meet the legal needs of clients throughout the state. This has already occurred in states such as New Mexico, which also contains a significant amount of tribal land, and is under active consideration by many other states. Arizona should follow the modern trend, rather than holding to past mythologies about the "esoteric" nature of Federal Indian law.

    I appreciate the opportunity to share these perspectives and hope that they are useful to you as you discuss this important issue.


    Rebecca Tsosie
    Willard H. Pedrick Distinguished Research Scholar, Professor of Law, and
    Executive Director, Indian Legal Program
    Sandra Day O'Connor College of Law
    Arizona State University
    P.O. Box 877906
    Tempe, Arizona 85287


    05 May 2009 02:26 PM
    Dear Chief Justice McGregor and Honorable Justices of the Arizona Supreme Court:

    I write to support the State Bar of Arizona, Indian Law Section’s Petition #R08-0016, which requests that the Arizona Supreme Court amend Rule of the Supreme Court 35(b) to include Federal Indian Law as a potential subject of examination for admission to the State Bar of Arizona.

    As you may or may not know, three other states with far fewer Indian reservations, Native American residents, and percentage of territory classified as Indian reservations currently include Federal Indian Law as a subject on their respective bar examinations. Washington, New Mexico, and South Dakota include Federal Indian Law as a potential subject of examination. Likewise, in July 2007, the New York State Bar Examination included a question in its multistate performance test (“MPT”) that addressed Federal Indian law issues indirectly.

    In Arizona, approximately 28% of the State’s total land base is comprised of Indian reservations – home to 22 Indian tribes. The geographic location of those Indian reservations is not remote; some border major metropolitan areas such as Phoenix, Scottsdale, Tempe, Mesa, and Chandler. As a result, Arizona attorneys regularly encounter matters that involve Federal Indian law issues, including but not limited to law enforcement and jurisdiction; employment and labor; tort; probate; domestic relations; construction; regulatory and taxation authority; contracts; land use; criminal law; and environmental issues.

    Attorneys and their clients will benefit from testing of Federal Indian Law on the Arizona Bar Examination. The necessity and ability as attorneys to recognize potential Indian law issues will increase the competence of the profession in the State of Arizona and provide at least a basic knowledge of jurisdictional issues that are prevalent in Arizona.

    The ability to determine that the Indian Child Welfare Act may apply to an adoption; that a Tribal court may be the appropriate forum for a dispute; that a contract’s dispute resolution provision may or may not be effective depending upon choice of law and forum provisions; and the determination of controlling law and jurisdiction are a small sample of issues that can more effectively and efficiently be addressed by attorneys that gain a basic understanding of Federal Indian Law through a requirement that said subject be included on the Arizona Bar Examination.

    While I anticipate that some naysayers and opponents will claim that they will never deal with Federal Indian Law issues, the same can be said for many of the subjects that are potentially examined in any given year. While I may not address community property or wills in my daily practice, the requirement that I learn the basic precepts of those areas of law in preparation for the Arizona Bar Examination does not diminish the importance of those subjects to the greater portion of the legal profession or the citizens of the State of Arizona. Although I do not practice in the fields of domestic relations, wills, or trust and estates, my ability to recognize those issues and take appropriate action was enhanced by the requirement to study those subjects in preparation for the Bar Examination. Similarly, the rule change does not require practitioners to have an intricate knowledge of Federal Indian Law, but will require understanding potential jurisdictional and tribal sovereign rights issues.

    Likewise, inclusion of Federal Indian Law as a potential subject for the Arizona Bar Examination will enable exam takers to recognize three distinct governments operating within the State of Arizona, i.e., the State, federal government, and individual tribal governments. The ability to identify issues of tribal government jurisdiction and sovereignty that are implicated in a myriad of common situations will benefit the citizens of the State of Arizona, the courts, and the profession.

    I urge the adoption of the proposed rule change. Thank you in advance for your consideration of these comments.


    Bradley G. Bledsoe Downes
    Bledsoe Downes & Rosier, PC
    4809 East Thistle Landing Drive, Suite 100
    Phoenix, Arizona 85044
    T: 480.346.4216
    F: 480.346.4217
    SBN: 23105


    06 May 2009 04:40 PM
    Brian L. Lewis and Raymond J. Campbell
    Armstrong Hall, 1100 South McAllister Avenue
    PO Box 877906
    Tempe, Arizona 85287

    07 May 2009 01:35 PM
    Leah Lussier

    08 May 2009 12:15 AM
    Honorable Justices of the Supreme Court

    As Immediate Past Chair of the Indian Law Section and current Chair of the Bar Exam Exploratory Committee of the Indian Law Section, I respectfully submit the attached letter from the current Indian Law Section Chairman, Mr. James Stipe.

    Amy B. Courson
    Immediate Past Chair
    Indian Law Section
    AZ Bar No. 022399
    4400 E. Broadway, Suite 700
    Tucson, AZ 85711

    James M. Stipe
    Burch & Cracchiolo
    P.O. Box 16882
    Phoenix, AZ 85011

    11 May 2009 04:04 PM
    Barbara Atwood
    U of A College of Law
    P.O. Box 210176
    Tucson, Az 85721-0176

    In light of the increasingly important role played by Indian tribes and tribal members in the state's economy, I strongly favor including Indian law as a potential subject for the bar examination. As pointed out in the petition, the 22 tribes in this state account for over 1/4 of the state's land. A lawyer engaged in a general civil practice is likely to encounter issues concerning service of process across reservation boundaries. enforcement of judgments within tribal courts, enforcement of tribal judgments within state courts, and questions regarding tribal sovereign immunity. In addition, those engaged in family law practice may come across dificult jurisdictional clashes between tribal and state officials regarding divorce, child support, and child custody. Similarly, criminal law practitioners may come across tribal misdemeanor prosecutions as well as state and federal court prosecutions of Indian defendants.

    In my view, lawyers who practice in this state need not be expert in the considerable complexities of federal Indian law, but they should at least have a grasp of the basic jurisdictional principles governing tribal/state relations, the role of federal authority vis a vis tribes, and the concept of tribal sovereign immunity. As it happens, the two public law schools in the state each offer nationally-recognized programs in Indian law. Each school could presumably accommodate any increased student enrollment in the basic Indian law course that might result from adoption of this rule change.

    14 May 2009 09:22 PM
    Paul A. Bullis
    Bar No. 007676
    1847 N. Raven Circle
    Mesa, AZ 85207
    480-704-3974 (H) (No FAX no.)

    I submit these comments in support of the petition to amend Rule 35(b) of the Rules of the Supreme Court to include Indian Law as one of the subject areas which may be tested on the Arizona Bar Examination.

    During the time when I was Director of the Arizona Department of Gaming, I saw first hand the need for attorneys to have basic awareness of potential issues involving tribal jurisdiction and immunity. For example, I would become aware from time to time of patron disputes with tribal casinos, and patron and employee injuries, as well as business disputes between tribes and vendors. Each of these matters potentially presents both jurisdictional as well as immunity issues.

    The need for attorneys to have awareness of these issues continues to grow as tribal business grows. Gaming is one area that has shown tremendous growth over the past several years. From Fiscal Year 2004 to Fiscal Year 2008 tribal gaming in Arizona has grown by nearly 50%, and is now a $2 Billion a year industry. That period also included construction or expansion of at least six casinos. In addition, two more casinos are currently under construction and another has been announced. Many of these casinos include hotels and other amenities.

    This growth period has resulted in an increase in jobs as well as an increase in vendors providing goods and services for tribal enterprises. In fact, the most recent reports show that Indian gaming enterprises alone now directly employ over 12,000 Arizona citizens – 60% of whom are non-Indian.

    The number and frequency of these types of disputes will only increase as tribal gaming continues to grow. The need for Arizona attorneys to be able to identify issues of tribal jurisdiction and immunity will also grow as a result. The time has come to include Indian Law as a subject area for testing on the bar exam.


    18 May 2009 05:43 PM
    May 18, 2009

    Honorable Ruth V. McGregor
    Supreme Court, State of Arizona
    Room 402, Arizona State Courts Building
    1501 W. Washington
    Phoenix, Arizona 85007-3329

    Re: Letter of Support for Inclusion of Indian Law on the Arizona State Bar Examination

    Dear Chief Justice McGregor:

    I respectfully submit this letter in support of the Arizona State Bar Association’s petition to amend Supreme Court Rule 35 (b) to include Indian Law as a subject for the Arizona State Bar Examination. In my experiences as both a practicing attorney and an elected official charged with representing the Salt River Pima-Maricopa Indian Community, I have seen first-hand the importance of Indian Law and policy within the legal and political structure of the State of Arizona, and also understand the importance of having a state bar that knows the basics of Indian law, even among practitioners who don’t regularly practice in this area.

    Because Indian tribes are some of the largest employers in the State of Arizona and more non-Indian businesses are locating on Indian lands, Indian law is no longer confined to disputes between tribal members in a tribal court setting. Instead, non-Indians in a variety of professions and walks of life now frequently encounter tribal jurisdiction. Among other examples, family law judges now often hear adoption and foster care placement matters involving Indian children, non-Indians more regularly drive across tribal lands to reach their jobs, and commercial and retail businesses more frequently decide to locate within tribal communities. Without testing Indian Law on the Arizona State Bar Examination, attorneys representing clients who have engaged in activities over which Indian tribes have jurisdiction are less likely to understand the complexities of civil and/or criminal jurisdiction within Indian Country, including what is the proper forum for resolving such disputes.

    In 1999, Arizona Supreme Court adopted the Rules of Procedure for the Recognition of Tribal Court Civil Judgments. This was an important step in recognizing the necessary interplay and coordination between the judicial systems of the State of Arizona and Indian tribal governments, but more must be done.

    By including Indian Law on this important examination, the State of Arizona will be taking affirmative steps to: (1) increase lawyer competency; (2) improve the quality of legal services received by clients of Arizona attorneys; (3) reduce the burden on state and tribal courts imposed by lawyers who do not understand tribal sovereignty and who fail to properly identify the applicable jurisdiction and laws; and (4) provide for a meaningful and effective partnership between all Arizona Jurisdictions and judicial systems, including those in Indian Country. I urge your serious consideration and approval of including Indian Law on the Arizona State Bar Examination.


    Diane G. Enos
    Salt River Pima-Maricopa Indian Community
    10,005 East Osborn Road
    Scottsdale, Arizona 85256
    Phone (480) 362-7465
    Fax (480) 362-7575
    Bar # 014413

    18 May 2009 06:28 PM
    Dr. Eugene Clark, Interim Dean and Professor of Law
    Phoenix School of Law
    4041 N. Central Avenue, Suite 100
    Phoenix, AZ 85012
    602 682-6870
    602 682-6998

    May 18, 2009

    Arizona Supreme Court
    1501 West Washington
    Phoenix, AZ 85007-3231

    Re: Indian Law on Arizona Bar Exam

    I am writing as one of the Deans of Arizona’s three law schools in support efforts to have American Indian tribal government jurisdiction and Indian sovereign immunity included as one of subjects on the Arizona State Bar Exam. The matter is currently under consideration before the Supreme Court of Arizona by virtue of State Bar of Arizona Board of Governors Petition # R08-0016, dated May 16, 2008, respectfully urging the Supreme Court to amend bar Rule 35(b) to formally include Indian law as a topic on the state bar exam.

    Other key interested parties strongly support this effort, including the State Bar of Arizona Section of Indian Law, the Native American Bar Association of Arizona, Arizona’s tribal leaders through the Inter-Tribal Council of Arizona, former Governor, now United States Secretary of Homeland Security Janet Napolitano, many Arizona attorneys drawn from across our state, and, as mentioned above, Arizona’s three law schools.

    The evidence is strong that time has come for the Arizona bar to reflect the immense cultural, historical, economic and legal importance of Arizona’s American Indians. The tribes employ thousands of Arizonans, both Indian and non-Indian; they own, operate, manage, employ or house a vast number of industries, retail firms, gaming concerns, natural resources, agriculture, tourist attractions, mining and educational institutions across our state. Approximately 28% of the state is in Indian Country; an astounding 250,000 Arizonans are enrolled in a tribe, and Arizona is home to no less than 22 Indian nations, including America’s largest reservation – the Navajo Nation. Arizona’s Indian nations share strategic boundaries and relationships with cities such as Phoenix, Scottsdale, Tempe, Mesa, Chandler, Prescott, Casa Grande, Florence, Tucson and Yuma.

    The significance of Arizona’s large Indian population and land base is amplified by the many issues of state law intertwining with Indian law. The Indian Child Welfare Act affects many state adoption and family matters. The Indian Gaming Regulatory Act regulates an industry that in 2007 employed nearly 15,000 Arizonans. Federal Indian law governs or affects mining and natural resources, burial sites, archeological finds, decedent’s estates, energy and water issues, criminal jurisdiction, and issues of profound legal significance to Arizona.
    The practice of the typical Arizona attorney is increasingly likely to involve Indian law issues. It is therefore appropriate to ask that a competent state attorney have at least a basic understanding of jurisdiction and sovereignty immunity, so as to protect and advise clients. In recent years the Office of the U. S. Attorney for Arizona, the Office of the Arizona Attorney General, and many of the state’s major law firms have established Indian law practice sections. All three Arizona law schools, the University of Arizona James E. Rogers College of Law, Arizona State University Sandra Day O’Connor College of Law, and Phoenix School of Law offer federal Indian law courses, typically quite popular among the students. Authors of top national law school casebooks in subjects such as Constitutional Law, Property, and Civil Procedure have added Indian law sections to their new editions. Perhaps one of the best indicators of the coming change is that national bar preparation companies have already developed course materials in anticipation of the approaching national wave of Indian law.

    Several other western and mountain states including New Mexico, Washington and South Dakota now include federal Indian law on their bar exams, with more states considering the matter. Arizona, which may bid to fairly outrank all its sister states for its proud richness of native history, culture, and vibrant presence, should be among this first vanguard of states leading the way in acknowledging one of our greatest resources – the descendants of its native inhabitants.

    For all these reasons, the Phoenix School of Law community, in furtherance of our founding principles of serving the underserved, and producing highly ethical attorneys imbued with a sense practice-ready public service, respectfully urge the Court to amend Rule 35(b) to add to the subjects that may be tested on the Arizona State Bar Exam, Indian tribal government jurisdiction and sovereign immunity. Thank you for this opportunity to submit our comments.

    Respectfully submitted,

    Dr Eugene Clark
    Interim Dean and Professor of Law



    19 May 2009 01:12 PM
    Honorable Janice K. Brewer, Governor
    State of Arizona
    Office of the Governor
    1700 West Washington Street
    Phoenix, AZ 85007
    Ph.: 602-542-4331
    Fax: 602-542-7602

    James M. Stipe, Esq.
    Burch & Cracchiolo, P.A.
    P.O. Box 16882
    Phoenix, AZ 85011
    Ph.: 602-274-7611
    Fax: 602-234-0341


    19 May 2009 01:43 PM
    Thomas L. Murphy
    Post Office Box 97
    Sacaton, Arizona 85247
    (520) 562-9760
    (520) 562-9769 (fax)
    Arizona Bar No. 022953
    New Mexico Bar No. 7705

    19 May 2009 02:12 PM
    Paul Schiff Berman
    Dean, Sandra Day O'Connor College of Law
    Arizona State University
    P.O. Box 877906
    Tempe, Arizona 85287

    May 19, 2009

    The Honorable Ruth V. McGregor
    Supreme Court of Arizona
    Administrative Office of the Courts
    1501 W. Washington, Suite 104
    Phoenix, AZ 85007-3231

    Re: Petition No. R-08-0016

    Dear Chief Justice McGregor:

    On behalf of the Sandra Day O'Connor College of Law, I am writing in support of the State Bar of Arizona's proposal to amend Rule 35(b), to include Indian Law as a subject on the Arizona Bar Examination.

    Arizona bar applicants should have basic knowledge of subjects or areas of law that are unique and distinct to the State. Arizona, for example, is one of only nine community property states. The Arizona Bar Examination has long included community property as a fair-game subject, yet it fails to include Indian law—an area of law that that is pervasive throughout the State. The Sandra Day O'Connor College of Law has recognized the importance of Indian law to the legal profession by offering many opportunities for students to learn about the basic principles of Indian law and incorporating these principles in many of the fundamental courses.

    The recent growth in tribal economic development in Arizona has led to an increased interaction between legal practitioners unfamiliar with Indian law and the applicability of federal and state laws to Indian tribes and governments. Arizona's Indian tribes are actively engaging in energy, real estate development, natural resource development, agriculture, finance, telecommunications, wholesale and retail trade, tourism, and gaming—all of which contributes billions of dollars to Arizona's economy. Indian Law is no longer a highly specialized field—it touches almost every legal discipline and plays a significant role in Arizona. Indian law issues, for example, may arise in matters involving contracts, constitutional law, international law, family law, torts, criminal law, property rights, civil procedure, business organizations, environmental law, trusts and estates, and employment.

    To date, New Mexico, South Dakota, and Washington test the topic of Indian Law on their bar examinations. These states recognize the importance and the need for their states' future attorneys to have adequate knowledge in the field. I understand that the bar examiners in Idaho, Montana, Oklahoma, Oregon and Wisconsin are also considering adding Indian Law as a subject on their bar examinations.

    As business and governmental interactions increase, so too does the potential for malpractice and numerous ethical violations arising out of transactions involving attorneys ill-informed and ill-equipped to handle Indian Law. Therefore, it is important that we ensure Arizona attorneys have a basic knowledge in Indian Law by testing the subject on the Arizona Bar Examination.

    Given the need for and the important and pervasive nature of the subject area, it would be truly unfortunate if Arizona—the state with the largest percentage of Indian lands in the country—failed to include such an important area of the law on the bar examination. I urge the Court to adopt the proposed rule change.


    Paul Schiff Berman
    Dean, Sandra Day O'Connor College of Law
    Foundation Professor of Law


    19 May 2009 05:19 PM
    Commenter's Name: Indigenous Peoples Law & Policy Program, James E. Rogers College of Law
    Mailing address: 1201 E. Speedway Blvd., P.O. Box 210176, Tucson, Arizona 85721
    Phone Number: 520-621-5677
    Fax Number: 520-621-9140
    E-mail address:

    19 May 2009 08:17 PM
    Michael C. Nelson
    P.O. Box 3795
    Phoenix, AZ 85006
    FAX 602-258-4049
    Bar Number 004944

    I support the proposed addition of Indian Law to the subjects to be tested on the Arizona State Bar Exam.

    I have practiced law in Indian Country for thirty-two years. I was the presiding judge of the Apache County Superior Court for almost fifteen years and the Chairman of the Arizona State, Tribal and Federal Judges Court Forum for ten years.

    In Apache and Navajo Counties, the counties with which I am most familiar, state court criminal cases involving Native Americans as either defendants or victims constitute a substantial percentage of the total criminal cases. Virtually every criminal case involving a Native American defendant and/or victim requires a jurisdictional analysis.

    The state court civil cases involving Indian Law issues arise in connection with state-funded on-reservation school districts; the White Mountain Apaches’ Casino at Honda, which is adjacent to the growing communities of Pinetop, Lakeside and Show Low; the New Lands, located around Sanders in Apache County, where a significant number of traditional Navajos from the Navajo-Hopi Land Dispute area were relocated; cases arising on fee lands within the Navajo and White Mountain Apache Reservations and on-reservation non-Indian/non-Indian business dealings.

    The Indian Child Welfare Act does not come into play in adoptions as much as it once did, as those adoptions have become fairly infrequent, but the I.C.W.A. still must be considered in D.E.S. cases involving Native American families and termination of parental rights. Domestic relations cases with Indian Law issues come up more than might be expected, with Native American couples living and/or working off reservation and with mixed Native American/non-Native American couples on-reservation.

    In short, a significant proportion of the cases in Apache and Navajo Counties in a number of practice areas require some Indian Law analysis and understanding. These cases are not handled by Indian Law specialists, but rather by the general practitioners. While the answers to the questions raised by these cases are not always clear, a practitioner in those counties needs to be aware of the issues and needs to know where to go to find the answers. Either they get that background in law school, through a bar review course, or catch as catch can as they learn the law while practicing. Personally, I believe an organized, framed learning experience is preferable.

    I urge the Arizona Supreme Court to approve the inclusion of Indian Law in the Arizona State Bar Exam.

    Michael C. Nelson


    20 May 2009 12:42 PM
    Hon. Ruth V. McGregor
    Chief Justice of the Arizona Supreme Court

    I am writing to convey the support of the Arizona State, Tribal, and Federal Court Forum for the efforts of the Indian Law Section to have Indian law added to the topics that may be included in essay examination questions listed in the Rules of the Supreme Court, Rule 35 (b) (1).

    The Arizona State, Tribal, and Federal Court Forum was established in 1990 by order of the Chief Justice of the State of Arizona. Today the Forum includes members from state, tribal and federal judiciaries and from the public law offices of these three jurisdictions. One of the stated purposes of the Court Forum is:

    To promote improvement in the quality of justice delivered in the context of the overlapping jurisdiction of state, tribal and federal courts through judicial education, professional court administration, education of attorneys and the public about tribal courts, . . . .

    The support of the Court Forum for the Indian Law Section’s efforts , particularly to include civil and criminal jurisdictional issues on the Bar exam, promotes this purpose by prompting Bar examinees to educate themselves on these basic principles before they are licensed to practice in Arizona where these issues are so pervasive.

    I have been involved in Indian law issues in Arizona for over thirty years. An awareness of these issues is more important today than it was when I first began practicing law. Therefore, I urge the addition of Indian law as a subject on the Arizona bar exam.


    Patrick Irvine
    Judge, Arizona Court of Appeals, Division One
    Chair, Arizona State, Tribal, and Federal Court Forum
    1501 W. Washington
    Phoenix, AZ 85007-3329
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