In this podcast episode, renowned experts on American Indian law and policy, Matthew Fletcher and Wenona Singel, discuss the nuanced and highly complex field of American Indian Law. The speakers explore the history of tribal sovereignty, and discuss the rights of American Indians as both tribal citizens and U.S. citizens. They then explore jurisdiction across border lines, particularly in a criminal context, and discuss the history of violence against Native women, and why, until recently, prosecution has been so difficult. The history of and current U.S. court challenges to the Indian Child Welfare Act are also examined.
This article first examines the Supreme Court's "New Federalism"–a series of cases that have extended the scope of state sovereign immunity and increased the level of scrutiny the courts will apply to federal legislation enacted under the commerce or enforcement powers–and places in perspective its significance to the problem of sex discrimination in employment. The author then discusses New Federalism's application to the provisions of the Family Medical Leave Act (FMLA) that are at issue in Nevada Department of Human Resources v. Hibbs, and offers a few observations about the implications of these developments and some thoughts on legislative strategies for the future.
This is a case where the Supreme Court decided it had no original jurisdiction when tribes sued states, as tribes were "domestic dependent nations." Chief Justice John Marshall wrote that "the relationship of the tribes to the United States resembles that of a 'ward to its guardian.'" This case demonstrates the racist origins of Federal Indian Policy during the Manifest Destiny era.
This article will examine the generalities about tribal jurisdiction by using the historical and contemporary situation of the Winnebago Tribe as an example. The Winnebagos are small, in both people and land, but their efforts over the course of more than two centuries exemplify the interaction of American Indians with the majority society. The tribe's recent proposal involving tribal jurisdiction and implicating the civil liberties of non-Indians is very much in the mainstream of modern Indian legal issues. Thus my hope is that the discrete experience of the Winnebago tribe will provide a fit context for broader, systemic issues by putting flesh and blood into the many practical and jurisprudential considerations raised by the matter of civil liberties in Indian country.
In this YouTube video, professors engage in a panel discussion as part of the series on Race and the 1L Curriculum. The panel explores a range of constitutional issues-typically uncovered in the 1L curriculum that arose in the decades following the Civil War and Reconstruction. For example, Professor Ponsa-Kraus discusses some of the legal questions surrounding the status of Puerto Rico and other U.S. territories; Professor Young in turn will discuss the failure of the 14th Amendment to prevent the collapse of Reconstruction.
This article discusses the importance of intersectionality and how the single-axis framework that is dominant in antidiscrimination law contributes to the marginalization of Black women in feminist theory and in antiracist politics. Kimberle Crenshaw, a world renowned scholar in critical race theory and intersectional feminism, argues that Black women are sometimes excluded from feminist theory and antiracist policy discourse because both are predicated on a discrete set of experiences that often does not accurately reflect the interaction of race and gender. The author concludes that problems of exclusion cannot be solved simply by including Black women within an already established analytical structure.
This podcast episode discusses three important LGBT rights cases: a 9th circuit ruling affirming citizenship for a child of a gay couple; a Federal court ruling temporarily blocking New York state from requiring a religious adoption service to work with married same-sex couples; the development of Federal courts allowing plaintiffs to extend the landmark Supreme Court Bostock v. Clayton County ruling protecting gay and transgender people from discrimination in the workplace to Equal Pay Act claims and employment benefits.
This article explores some of the legal issues raised by the existence of lynching in America's past. Part II examines the phenomenon of lynching in the South. Part III reviews the South's failure to enforce the law against lynchers. Part IV examines the only serious effort Congress made during the Progressive Era to enact anti-lynching legislation. Part V chronicles the stories of the Mann Act, the Harrison Narcotics Act, and the prize-fight film legislation as evidence of Congress's willingness to ignore constitutional and states' rights concerns in order to combat the perceived threat that black men posed to white women.
This article examines two key constitutional cases involving immigration and citizenship, Chae Chan Ping v. United States and Fong Yue Ting v. United States, which profoundly affect the development of the American national identity, but are notably absent from the legal curriculum. These two cases are the roots of Congress's plenary power over immigration, which has effectively immunized the federal government's substantive immigration decisions from judicial scrutiny.
This article traces the history of the “Gentlemen’s Agreement" – informal non-binding agreements that limited Japanese immigration to the United States – and reconsiders their place in history. This history also sheds light on the disadvantages of a United States constitutional structure that is hamstrung by a system of federalism developed more than two centuries ago.
This article first briefly describes the doctrinal alterations worked by the Court's "New Federalism," then discusses its application to the provisions of the Family Medical Leave Act (FMLA) that are at issue in Nevada Department of Human Resources v. Hibbs. It offers a few observations about the implications of these developments and some thoughts on legislative strategies for the future, and closes with a brief summary that places in perspective the New Federalism and its significance to the problem of sex discrimination in employment.
This article argues that the deep cultural division over marriage fundamentally is driven by disagreement over gender and sexual identity. Gender and sexual identity depend on microperformances, which are either observed and contested in specific local places, or are visible and contested in an a geographic discursive space. These processes are at once very small scale and very large scale. In sum, federalism raises tactical issues of considerable importance, but is not the main event, because the Kulturkampf is about microperformances of identity and their shared meaning.
This article explores the impact of a same-sex marriage amendment on the place of Indian tribes in the federal constitution. The Constitution has not been amended to incorporate Indian tribes into the federal union, rendering their place in Our Federalism uncertain and unpredictable. A same-sex marriage amendment that applies to limit or expand tribal authority to recognize or authorize same-sex marriage could constitute an implicit recognition of Indian tribes as the third sovereign in the American system of federalism.
This article first argues how the modern law of sex discrimination is limited, in constitutional legitimacy and critical acuity, by the ahistorical manner in which the Court derived it from the law of race discrimination. Part II explores the constitutional history that would support a different, socio-historical approach to sex discrimination law. Parts III and IV examine the history of the women suffrage campaign. Part V traces the juridicial erasure of this constitutional history. Part VI considers how this history might bear on the way we interpret the Constitution today.
This essay offers "a highly personal discussion of the madness and psychological strain involved in being [B]lack in America." The author argues that instead of citing the Bill of Rights' protections as a theoretical construct for individual Americans' liberties, we should bring the Bill of Rights to life as the basis of resolving the central dilemma in American history-racial inequality. "The problem is not in the Bill of Rights... The flaw lies in its application and the opinions and attitudes we have employed to distance ourselves from the glory of the Bill of Rights."
This is a seminal case where the Supreme Court decided that the states did not have the right to impose regulations on Native American land, and the Court held that the Cherokee Nation was "a distinct political community" within which Georgia law had no force. This decision created an important precedent through which American Indians could, like states, reserve some areas of political autonomy.