Kansas Law Review

Bethany Berger on the McClanahan Case and the DNA Lawyers Who Litigated It

Matthew L.M. Fletcher

Bethany R. Berger has posted “Rosalind’s Refund: The Woman, the Lawyers, and the Time that Created McClanahan v. Arizona,” forthcoming in the Kansas Law Review, on SSRN.

Here is the abstract:

Rosalind McClanahan was just twenty-two when she set one of the most important cases in federal Indian law into motion.  On April 1, 1968, she filed her Arizona tax return, along with a protest that all the money withheld from her pay—$16.29—should be refunded because she was a Navajo citizen whose income was earned entirely on the Navajo reservation.   The Arizona Tax Commission ignored her claim and the Arizona courts rejected it. But the Supreme Court ruled unanimously in her favor, building a foundation for many more decisions rebuffing state jurisdiction as well as  landmark legislation such as the Indian Child Welfare Act  and Indian Gaming Regulatory Act. This Essay, the first full history of McClanahan,  examines the origins of the decision as part of the Kansas Law Review’s symposium on impact litigation in Indian country.

Rosalind McClanahan was born in an era of renewed pressure for Indian assimilation but came of age as tribes and Indigenous people increasingly insisted on self-determination.  This moment had a direct influence on her case: her education at Window Rock High School (where she was elected Class Treasurer) resulted from new pathways to challenge Indian exclusion from public schools; her employer was the First Navajo National Bank, which opened in 1962 as the first bank on the 16-million-acre Navajo Nation; and her lawyers came from Diné be’iiná Náhiiłna be Agha’diit’ahii-Legal Services (shortened to “DNA”),  which the Navajo Nation brought to the reservation as part of a new wave of federally funded organizations providing legal services to the poor.  Each of these developments shaped both the decision and its impact.

I really enjoyed this article, especially the origin story of the DNA-People’s Legal Services. Recommended!!

Translation: I am a sad tax collector.

Jessica Shoemaker on the Indian Land Tenure Problem

Matthew L.M. Fletcher2 Comments

Jessica Shoemaker has posted “No Sticks in My Bundle: Rethinking the Indian Land Tenure Problem,” forthcoming in the Kansas Law Review.

Here is the abstract:

This article analyzes the modern rule that individual Indian co-owners of allotted land retain no direct rights to use and possess their own property without a lease or other prior permission from their co-owners. This special Indian no-use and no-possession rule is of a relatively recent vintage, and it is contrary to the rights of co-owners in nearly every non-Indian jurisdiction. This rule is also ahistorical and contrary to current federal policy to promote Indian use of Indian land. While other scholarship on Indian land tenure has focused on the practical challenges of coordinating among so many co-owners in Indian lands’ fractionated state and on the limits imposed by the federal trust status’s alienation restraints on these lands, this article argues that the lack of legal possession and use rights for Indian co-owners is a third and previously overlooked factor in the problem of Indian self-determination. This article ultimately concludes that the federal co-ownership rules for individual Indian lands are poorly designed and are exacerbating other land tenure and social and economic problems in Indian Country. This article ultimately proposes tribally driven solutions to create a more rational and culturally congruent property system for indigenous people.