Sex Discrimination under Tribal Law

This article broadly identifies and then briefly examines tribal laws that prohibit sex discrimination and secondarily addresses laws that make sex-based distinctions. As explained below, the project is somewhat limited in scope due to the lack of widespread availability of many tribes\u27 laws. 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

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

This law review Article examines: (1) the underpinnings of tribal sovereignty within the American system; (2) the need for restoration based on the Court\u27s drastic incursions on tribal sovereignty over the past four decades and the grave circumstances, particularly tribal governments\u27 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\u27 ability to provide governmental services and to protect their unique institutions, to problems of widespread on-reservation violence, particularly against Indian women. 7he 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

Unjustifiable Expectations: Laying to Rest the Ghosts of Allotment-Era Settlers

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. My purpose in this Article is to question both the substance of these presumed expectations and their justifiability. I begin this questioning with a thorough analysis of previously unexamined historical newspaper articles concerning non-Indian settlement of Indian reservations during the allotment era. I then argue that, as reflected by the above quote from Superintendent King, most non-Indians during the allotment period cared little about whether Indians were treated justly. Furthermore, I argue that many non-Indians had notice that tribes were being unjustly deprived of their lands through the allotment process, and that some non-Indians even advocated for this very injustice to occur. Both notice of injustice and complicity in the government’s unjust actions precluded non-Indian purchasers from forming justifiable expectations. This rigorous, context- specific look at non-Indian expectations suggests that, in sharp contrast to current Supreme Court practice, tribal jurisdiction over nonmembers should generally be upheld and Indian reservations should not generally be held to have been diminished or disestablished as a result of allotment

Off-Reservation Treaty Hunting Rights, the Restatement, and the Stevens Treaties

The underdevelopment 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 Article explores those challenges and offers some solutions for dealing with them in subsequent editions of the Restatement. Specifically, this Article explores the potential usefulness of historical law in interpreting treaties, the need to tie treaty interpretation to the language of the treaty when an explicit right is at issue, the proper application of the reserved rights doctrine and the Indian canons, and how the canons should be applied in the face of conflicting tribal interests. This piece also celebrates the successes of those two sections and of the Restatement in general

Bridging the Gap in LGBTQ+ Rights Litigation: A Community Discussion on Bisexual Visibility in the Law

This essay discusses the genesis of BiLaw, a coalition of Bi+ lawyers and law students, and highlights the importance of a 2021 Lavender Law session organized by BiLaw in which representatives of LGBT rights organizations discussed the erasure of Bi+ persons in jurisprudence and the importance of, and their commitment to, serving the needs of the Bi+ community, along with those of other stakeholders. A transcript of the groundbreaking discussion follows the essay

Bridging the Gap in LGBTQ+ Rights Litigation: A Community Discussion on Bisexual Visibility in the Law

This essay discusses the genesis of BiLaw, a coalition of Bi+ lawyers and law students, and highlights the importance of a 2021 Lavender Law session organized by BiLaw in which representatives of LGBT rights organizations discussed the erasure of Bi+ persons in jurisprudence and the importance of, and their commitment to, serving the needs of the Bi+ community, along with those of other stakeholders. A transcript of the groundbreaking discussion follows the essay

Brief Amici Curiae Legal Scholars of Sex and Gender In Support of Plaintiff-Appellant

This amicus brief was filed in Griffith v. El Paso County, Colorado, case no. 23-1135 (10th Circuit) in support of appellant Darlene Griffith. Amici curiae are legal scholars of sex and gender. They offerexpertise in their personal capacities to assist the Court of Appeals for the Tenth Circuit in assessing whether the El Paso County Sheriff officials violated Ms. Griffith’s Fourteenth Amendment right to equal protection when they refused to house Ms. Griffith, a transgender woman, in the women\u27s unit of the El Paso County Jail as a pretrial detainee