ANTICOMMANDEERING & INDIAN AFFAIRS LEGISLATION
62 Harv. J. Legis. ___ (forthcoming 2025)
The Supreme Court recently applied the narrow and relatively new anticommandeering doctrine for the first time to federal Indian Affairs legislation in Haaland v. Brackeen without explaining why the doctrine should be extended from the Interstate Commerce Clause context to that of the Indian Commerce Clause, as well as to the other congressional powers that form the basis of the Indian Child Welfare Act (ICWA). In subsequent cases relating to Indian affairs legislation, the Court should clarify that only a very narrow version of the anticommandeering doctrine applies in this context because of the virtual absence of state authority in the area and the history of acceptance of federal activities that can be described as commandeering state enforcement activities. Existing literature in this area is limited, with Matthew Fletcher and Randall Khalil having argued, before Brackeen was issued, that ICWA should be interpreted as having been enacted under Section 5 of the Fourteenth Amendment, an invitation that the Court ultimately did not take up. This Essay, Anticommandeering and Indian Affairs Legislation, is important because it explains holes in the Court’s reasoning in Brackeen and because it safeguards Congress’s ability to protect Native Americans and Tribes from longstanding abusive state practices such as the unwarranted removal of Indian children from their homes.
A draft of this forthcoming article can be accessed here.
BISEXUAL ERASURE, MARJORIE ROWLAND, & THE EVOLOUTION OF LGBTQ RIGHTS
46 Harv. J. L. & Gender 265 (2023)
Rowland v. Mad River Local School District, a Sixth Circuit LGBT employment discrimination case from 1984, has not received the attention it deserves. Justice Brennan’s dissent from the denial of certiorari has advanced LGBT rights significantly, while, at the same time, this dissent, along with the dissent from the Sixth Circuit majority opinion and the district court opinion, also serve as a lens to see what work in the area remains to be done. Bisexuals, despite being the largest segment of the LGBT community, are systematically erased, as scholars such as Kenji Yoshino have documented, both generally and from legal history specifically. The case has been mentioned in law review articles and discussed briefly in some sexuality and law textbooks, but warrants a much more in-depth examination. Moreover, the sacrifices Ms. Rowland endured to bring the case are completely unknown in the legal arena. Indeed it appears from the electronic research tools like Westlaw and Lexis that the case has never even been the subject of a case note.
Based on an in-person interview with the plaintiff and original archival research, this article (1) recounts the many compelling aspects of Ms. Rowland’s story, (2) elucidates the contributions of the case to LGBT history, and (3) explains what we can still learn and implement from the district court opinion, the dissent in the Sixth Circuit, and Justice Brennan’s dissent from the denial of certiorari. It shines a light on an important missing piece of the LGBT rights puzzle.
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TRIBAL NATIONS AND ABORTION ACCESS: A PATH FORWARD (with Lauren van Schilfgaarde, Aila Hoss, Sarah Deer, and Stacy Leeds)
46 Harv. J. L. & Gender 1 (2023)
In the wake of Dobbs and its upending the constitutional right to abortion care, commentators have explored the possibility of an abortion “safe harbor” in Indian country. These narratives largely contemplate co-opting tribal sovereignty to provide safety from state criminal and civil liability for non-Native people seeking abortion care. It does not consider the complicated legal and practical considerations that would face Tribes pursuing this strategy, nor the risk to providers and patients. Moreover, Indigenous people are already less likely to receive abortion care. Native reproductive care has long been the target of assimilationist and even genocidal policies, while also being greatly underfunded and neglected, resulting in a population with devastating rates of violence and maternal mortality, and with extremely limited access to abortion care.
However, despite numerous legal hurdles, and a historical context steeped in restricted reproductive health, Tribes, as sovereign nations, may be a position to fill a part of the enormous health care gap to serve their citizens and communities. Tribes have numerous reasons to be unsatisfied with the prospect of delegating their regulatory authority regarding reproductive care to the states. Native authority generally is under increasing threat from state encroachment and federal disestablishment, including in the most recent U.S. Supreme Court holding in Indian law, Oklahoma v. Castro-Huerta. But more fundamentally, Tribes have sovereign obligations to their Indigenous citizenry that include robustly asserting Native reproductive well-being as a human right, and zealously defending that right.
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.
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OFF-RESERVATION TREATY HUNTING RIGHTS, THE RESTATEMENT, & THE STEVENS TREATIES
97 Wash. L. Rev. 835 (2022)
The under-development of the law of off-reservation treaty hunting and gathering poses challenges for treatises like the groundbreaking Restatement of the Law of American Indians (“Restatement”). With particular attention to Sections 83 and 6 of the Restatement, this essay explores those challenges and offers some solutions for dealing with them in subsequent editions of the Restatement. Specifically, this essay explores the potential usefulness of historical law in interpreting treaties, the need to begin treaty interpretation with the language of the treaty when an explicit right is at issue, the proper application of the reserved rights doctrine and the canons, and how the canons should be applied in the face of conflicting tribal interests. Additionally, this piece celebrates the successes of Sections 83 and 6 of the Restatement and of the project of the Restatement in general.
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TRIBES, FIREARM REGULATION, & THE PUBLIC SQUARE
55 UC Davis L. Rev. 2625 (2022)
This paper explores tribal policies towards firearm regulation through four different lenses. First, tribal participation in recent state and federal legislative debates regarding firearm regulation is explored. Second, the essay examines ways that Native Americans continue to be harmed by notions of savagery, including through high rates of victimization of violent crime and high rates of police killings. Third, it explores the historical importance of firearms for many tribal cultures. Finally, tribal firearm regulations are examined, specifically in the context of laws regulating the ability to bring firearms into sensitive spaces and those relating to use of firearms in a threatening manner.
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HAS FEDERAL INDIAN LAW FINALLY ARRIVED AT “THE FAR END OF THE TRAIL OF TEARS”?
37 Ga. St. U.L. Rev. 739 (2021)
This essay examines the United States Supreme Court’s July 9, 2020 decision in McGirt v. Oklahoma, which held that the historic boundaries of the Creek reservation remain intact, and argues that the decision likely signals a sea change in the course of federal Indian law of the magnitude of Obergefell v. Hodges in the LGBT rights arena. The essay shows how the opinion lays a very strong foundation for a much-needed return to traditional federal Indian law principles, respectful treatment of tribal governments as a third sovereign in the American system, and an understanding of fairness from the perspective of tribes and Native individuals. The essay concludes with the hope that Justice Gorsuch’s majority opinion will foster predictability in the wildly unstable area of disestablishment and diminishment jurisprudence, as well as in other facets of federal Indian law.
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THE VALIDITY Of TRIBAL CHECKPOINTS IN SOUTH DAKOTA TO CURB THE SPREAD OF COVID-19
2021 U. Chi. Legal F. 233 (2021)
This essay examines the question of whether, during a public health emergency, tribes located in a state that has adopted minimal protections to curb the pandemic may enact stronger protections for their own citizens and territories. May they do so, even when enforcement of these protections causes inconvenience to those simply passing through the reservations and when the regulations affect non-member residents of the reservations? Based on Supreme Court case law, the answer is yes—tribes are within their rights in adopting and enforcing regulations designed to protect their citizens and other reservation residents from a public health emergency.
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INSURING BREAST RECONSTRUCTION
66 UCLA L. Rev. Disc. 2 (2018)
Women who are faced with a devastating diagnosis of breast cancer often confront a grueling treatment regimen, typically involving some combination of surgery, chemotherapy, and radiation. Many of these women desire reconstruction and have a right to insurance coverage for it under the Women’s Health and Cancer Rights Act (WHCRA). However, because of an unduly narrow interpretation of the Act, such women are often presented with a false dichotomy between a full mastectomy with reconstruction and a partial mastectomy or lumpectomy without. This Article uses legislative history, plain meaning, and state case law on similar issues to show that the WHCRA is properly interpreted as providing a right to insurance coverage for reconstruction after partial,
as well as full, mastectomies.
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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 . . . OUTLAWS, WOLVES, . . . 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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