Publications: Scholarship

 

TRIBAL LAWS & SAME-SEX MARRIAGE: THEORY, PROCESS, AND CONTENT

46 Colum. Hum. Rts. L. Rev. 104 (2015)

Although twelve federally recognized Indian tribes are currently known to allow same-sex marriage, comprehensive information on the content of each of these laws and the processes by which they came to be adopted is not available from any single source. This lack of information is due in part to the fact that tribal same-sex marriage laws as we know them today are a relatively new phenomenon. Indeed, seven of the laws were adopted, or began to be interpreted to allow same-sex marriage, in 2013, 2014, or 2015—those of the Pokagon, Little Traverse, Colville, Leech Lake, Puyallup, Central Council of the Tlingit and Haida Indian Tribes, and the Eastern Shoshone and Northern Arapaho. Moreover, some tribal laws that allow same-sex marriage, such as Mashantucket Pequot’s, apparently escaped public notice altogether. Tribal domestic partnership laws are even less well-known and their application to same-sex couples has not been examined by any legal scholar.

On the other side of the controversy, at least ten tribes have Defense of Marriage Acts (DOMAs), and many others have marriage laws with sex-specific language that may or may not have been intended to bar same-sex marriage. The content of these laws has not been examined in any comprehensive fashion. Finally, the precedential weight and likely practical effects of the Supreme Court’s decision in United States v. Windsor on tribal law have not yet been analyzed in legal scholarship.

This Article addresses all of these issues, making it a unique source of information on, and legal analysis of, tribal law and federal law relating to marriage equality. Based on original interviews and correspondence with tribal members, tribal employees, and members of same-sex couples who have married under tribal law, as well as other sources, this Article concludes that tribal laws allowing same-sex marriage appear to be largely the result of grassroots efforts by tribal members. This pathway to marriage rights contrasts sharply with the early methods for adopting such laws among U.S. states. The first states to adopt marriage equality legislation did so through judicial decision, with other states following later via legislative action.

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EMPLOYMENT DISCRIMINATION AGAINST BISEXUALS: AN EMPIRICAL STUDY

21 Wm. & Mary J. of Women & L. 699 (2015) (with Dr. Karen Yescavage)

By most counts, bisexuals make up the largest sexual minority group in the United States, and they have been litigating and advocating for their right to be free of discrimination since the early days of the gay rights movement. Yet they remain largely invisible in the case law and in the popular understanding of discrimination. Why is this? While more than one academic in the field suggested—in informal discussion about this project—that lack of discrimination was the reason for bisexuals’ invisibility in the case law, this supposition is inconsistent with the emerging social science data on the experiences of bisexuals. It also conflicts with the results of our study, which is the first published quantitative study to focus comprehensively on bisexuals’ experiences with employment discrimination. Our study demonstrates that bisexuals face considerable discrimination in the workplace.

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TRIBES AND GUN REGULATION:  SHOULD TRIBES EXERCISE THEIR SOVEREIGN RIGHTS TO ENACT GUN BANS OR STAND-YOUR-GROUND LAWS?

78 Alb. L. Rev. 101 (2015) (invited essay)

In light of the Second Amendment’s inapplicability to Indian tribes, tribes appear to have the greatest freedom to experiment with gun laws of any sovereign in the United States. What have they done with that freedom and what sorts of regulations should they pursue? This article attempts to answer both questions.

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HOW ALLOTMENT-ERA LITERATURE CAN INFORM CURRENT CONTROVERSIES ABOUT TRIBAL JURISDICTION AND RESERVATION DIMINISHMENT

82 U. Toronto Q. 924 (2013) (invited article) (peer reviewed)

This article examines whether allotment-era literature that pertains to the Sioux Nation is a potential source of notice as to the injustices that the Sioux Nation, its constituent tribes, and, by extension, tribes in other areas faced as a result of the allotment of their reservations and the sale of so-called surplus lands to non-Natives. Relatedly, I examine the extent to which Native-authored allotment-era literature has the potential to enrich our collective understanding of allotment and its devastating effects on tribes and Native individuals.

Purchase the article here or read a draft version on Ann’s ssrn page.


UNJUSTIFIABLE EXPECTATIONS:  LAYING TO REST THE GHOSTS OF ALLOTMENT-ERA SETTLERS

36 Seattle U.L. Rev. 129 (2012)

During the allotment era, the federal government took land from tribes and parceled some of it out to individual tribal members, while, in most cases, selling off the remainder to non-Indian settlers. Those actions, which are properly understood as unconstitutional takings, have been reinforced through decades of Supreme Court precedent. Specifically, the Court has used the now repudiated federal allotment policy, which contemplated eventual abolition of tribal governments, to justify contemporary incursions on tribal jurisdictional authority as well as other limitations on tribal sovereign rights. In this way, the Court builds new injustices upon old ones.

This Article responds to this Supreme Court precedent with two main points. First, it shows that non-Indians at the time had notice that the allotment policy was unfair to tribes (and that they sometimes directly advocated for its injustices). From this information, I argue that non-Indian purchasers of tribal lands—and subsequent purchasers from them—should not be understood to have had justifiable expectations that the reservations would disappear and that they therefore could not be subject to tribal jurisdiction in the future. Second, I argue that the Supreme Court should stop using the troubled history of allotment, which it construes based on incomplete information and without taking account of tribal interests and perspectives, to justify further restrictions on tribal sovereignty.

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POLYAMORY AS A SEXUAL ORIENTATION

79 U. Cin. L. Rev. 1461 (2011)

This Article examines, from a theoretical standpoint, the possibility of expanding the definition of “sexual orientation” in employment discrimination statutes to include other disfavored sexual preferences, specifically polyamory. First, it examines the current, very narrow definition of sexual orientation, which is limited to orientations that are based on the sex of those to whom one is attracted, and explores some of the conceptual and functional problems with the current definition. Next the Article looks at the possibility of adding polyamory to current statutory definitions of sexual orientation, examining whether polyamory is a sufficiently embedded identity to be considered a sexual orientation and the degree of discrimination that polyamorists face. After concluding that such an expansion would be reasonable, the Article briefly outlines some issues for further investigation, including potential policy implications and the conflicting evidence as to whether polyamorists want specific legal protections.

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 “HOSTILE INDIAN TRIBES . . . OUTLAWSWOLVES, . . . BEARS . . . GRIZZLIES AND THINGS LIKE THAT?” HOW THE SECOND AMENDMENT AND SUPREME COURT PRECEDENT TARGET TRIBAL SELF-DEFENSE

13 U. Pa. J. Const. L. 687 (2011)

This Article examines the history of self-defense in America, including the right to bear arms, as related to Indian tribes in order to shed light on how the construction of history affects tribes today. As shown below, Indians are the original caricatured “savage” enemy against whom white Americans believed they needed militias and arms to defend themselves. Since the early days, others have ably documented that the perceived enemies have multiplied to include African Americans, immigrants, and the lower classes. But this has not meant that Indians have been let off the hook. Instead, they not only remain saddled with whites’ nightmare images of their savagery, but they continue to be punished for the popular perception of them in very concrete ways. Specifically, they are repeatedly and increasingly denied the right to govern on grounds of their untrustworthiness, and it is entirely possible that the lawlessness of Indian reservations has continued as a result of this very racialization.

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SEX DISCRIMINATION UNDER TRIBAL LAW

36 Wm. Mitchell L. Rev. 392 (2010)

This article broadly identifies and then briefly examines tribal laws that prohibit sex discrimination and secondarily addresses laws that make sex-based distinctions . . . .

Specifically, this article addresses tribal equal protection guarantees as well as all types of tribal statutory and constitutional laws that explicitly prohibit sex discrimination. It also discusses tribal case law addressing such discrimination, including case law addressing equal protection guarantees, cases interpreting tribal codes or policies, and case law creating tribal common law.

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CONNECTING THE DOTS BETWEEN THE CONSTITUTION, THE MARSHALL TRILOGY, AND UNITED STATES V. LARA: NOTES TOWARD A BLUEPRINT FOR THE NEXT LEGISLATIVE RESTORATION OF TRIBAL SOVEREIGNTY

42 U. Mich. J.L. Reform 651 (2009)

This law review Article examines: (1) the underpinnings of tribal sovereignty within the American system; (2) the need for restoration based on the Court’s drastic incursions on tribal sovereignty over the past four decades and the grave circumstances, particularly tribal governments’ inability to protect tribal interests on the reservation and unchecked violence in Indian Country, that result from the divestment of tribal sovereignty; (3) the concept of restoration as illuminated by United States v. Lara, and finally (4) some possible approaches to partial restoration.

The Article first evaluates the constitutional provisions relating to Indians and the earliest federal Indian law decisions written by Chief Justice Marshall on the premise that these two sources shed light on the upper limits of a potential legislative restoration of tribal sovereignty. Next, the Article examines the judicial trend of divestment of tribal sovereignty, focusing particularly on the latest decisions that evidence this trend. The Article further examines the negative effects of this divestment in Indian Country, from impeding tribes’ ability to provide governmental services and to protect their unique institutions, to problems of widespread on-reservation violence, particularly against Indian women. The Article concludes that the judicial trend of divesting tribal sovereignty combined with these dire effects clearly demonstrate a need for restoration. Finally, the Article examines the Lara holding and its implications for the types of restoration that will be upheld by Court, concluding with an examination of options for potential legislative restorations.

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USING PLENARY POWER AS A SWORD: TRIBAL CIVIL REGULATORY JURISDICTION UNDER THE CLEAN WATER ACT AFTER UNITED STATES V. LARA

35 Envtl. L. 471 (2005)

This essay examines the implications of the Supreme Court’s decision in United States v. Lara for tribes seeking Treatment-as-State (TAS) status under the Clean Water Act (CWA). It concludes that, because the CWA recognizes and affirms tribal sovereignty over water quality, the CWA should be read, under Lara, to reinvest tribal sovereignty. First, this article delineates the pre-Lara requirements for TAS status and examines the interpretation by the Environmental Protection Agency (EPA) of the CWA’s TAS provisions. Second, the article explains in detail Lara, its implications, and the context of prior Supreme Court cases on tribal sovereignty. Finally, this essay argues that the CWA’s plain language, its legislative history, and its other provisions support a reading that reinvests tribal sovereignty.

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THE LIBERAL FORCES DRIVING THE SUPREME COURT’S DIVESTMENT AND DEBASEMENT OF TRIBAL SOVEREIGNTY

18 Buff. Pub. Interest L.J. 147 (2000)

This paper examines the Supreme Court’s substantial abandonment of a territorially based conception of Indian tribal sovereignty in favor of a consent-based conception and its recent characterization of tribal sovereignty as a special right, which may be claimed only by weak and dependent tribes. It ultimately attributes these trends, in significant part, to the Supreme Court’s increasing preoccupation with liberal goals in the decades following the Civil Rights Movement. The Supreme Court’s use of liberalism to erode well-established Indian law doctrines suggests that the continued application of liberal ideals poses serious problems for multicultural societies like the United States. These problems include the abolition of Indian tribes’ special status under the law and, more broadly, a threat to all subordinated groups of involuntary assimilation into the majority white culture.

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