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In Arizona, a push for Indian law on state bar exam

By Felicia Fonseca
Flagstaff, Arizona (AP) 10-09

As an attorney specializing in American Indian law, Robert Brauchli routinely fields questions from fellow lawyers about where to file a complaint if a client slipped and fell in a tribal casino or if there was a vehicle accident on reservation land.

With 22 tribes in a state more than one-quarter covered by tribal lands – more than any other state – those jurisdictional issues are likely to surface at least once in an Arizona attorney’s career.

That’s the main argument behind a push to have American Indian law added to the state bar examination. If a complaint is filed in the wrong court, attorneys run the risk of malpractice lawsuits, missing the statute of limitations or simply wasting client’s time and money.

“There should be some general concepts of tribal jurisdiction that a general practitioner should know to stay out of trouble,” Brauchli said.

The state Supreme Court considered a petition from the State Bar of Arizona to add the new legal area last month but is holding off on a decision pending a study on a uniform bar exam.

All but one of the responses to the petition favored having aspiring attorneys address basic jurisdictional and tribal government immunity issues on the state bar exam.

 

The court’s Committee on Examinations was the sole objector, saying American Indian law is too complicated and would further burden test-takers. The committee instead suggested integrating Indian law issues into courses required in law school.

Currently, American Indian law classes are offered as electives in the state’s universities.

Ask any law school graduate about adding another subject to the bar exam, and you might get some push back, said Thomas Murphy, senior counsel for the Gila River Indian Community, “but professionally, I haven’t heard anything but support.”

He compared American Indian issues in Arizona to oil and gas issues in Texas or Wyoming.

“When states are deciding what to put on the examination, it’s important to test on things that are unique to your state,” he said.

The possibility of encountering aspects of American Indian law on a state bar exam happens in only three states – New Mexico, South Dakota and Washington – each of which have sizable American Indian populations and reservation land.

“It’s a no-brainer, and it’s kind of shocking that the state of Arizona still has not done this when other states already have,” said Justin Ruggieri, assistant general counsel for the Tohono O’odham Gaming Enterprise. “I fear our folks are going to fall behind a little bit.”

Attorneys in Arizona wanting to learn more about Indian law can take courses through the state bar association or other groups. “There are a number of different resources to be trained on this subject,” said Cari Gerchick, a state supreme court spokeswoman.

Many American Indian communities are near Arizona’s largest cities, and it’s more common for tribal members and non-tribal members to intermingle now than it was 20 or 30 years ago, said Rebecca Tsosie, executive director of the Indian Legal Program at Arizona State University’s Sandra Day O’Connor College of Law.

Tribal government involvement in real estate and energy development, banking and finance, telecommunications and tourism also increases the likelihood of encountering jurisdictional issues. Attorneys regularly fail to identify the impact that Indian law might also have on lawsuits involving the adoption of an American Indian child, crimes on Indian reservations and environmental compliance, the petition said.

“You need to know the rules that apply in case some incident arises on that 25 percent of the land,” Tsosie said. “That’s just what a competent lawyer should know.”

As for where to file a complaint if someone slips in a tribal casino or gets in an accident on tribal land? What if that person is a tribal member?

“It just depends, and that’s always the answer,” Tsosie said. “The rules in federal Indian law are not so clear that we can say just because a tribal member is involved, this court is going to have it.

 

 

 

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