One Step Forward, Two Giant Steps Back: How the Existing Indian Family Exception (Re)imposes Anglo American Legal Values on American Indian Tribes to the Detriment of Culltural Autonomy

This article describes the profound changes to American Indian kinship and social structures caused when European and Anglo American legal norms were imposed on American Indian tribes without respect for Indian culture or values. Although these sovereign nations were entitled to self-determination, they were for centuries subjected to laws crafted without their input or representation. This article takes the position that law should come from within a culture to ensure that it reflects that culture\u27s values and permits it to flourish in its own way. When law is imposed by outsiders, it becomes a means of colonization, forcing one group to conform to another culture\u27s expectations and beliefs. This process can be seen in the relationship of United States law to American Indian tribes-a relationship in which tribes were placed under the control of a legal system that all too often failed to incorporate or reflect tribal values. Thirty years ago, Congress took one step forward to rectify this history. Recognizing the tribes\u27 right to cultural autonomy, Congress permitted American Indians to bring their own cultural norms to the table and have them recognized in laws such as the Indian Child Welfare Act. But that progress has been short-lived. State courts have thwarted ICWA\u27s full potential through the judicially created existing Indian family exception, which denies ICWA application in defiance of the Act\u27s plain language, Supreme Court precedent, and congressional intent. Under this exception, tribes are once again being subjected to laws that regulate and define Indian family and social life without benefit of the tribes\u27 input. To remedy this, I propose that Congress must act to halt the states\u27 grab, so that ICWA lives up to its promise to permit the tribes to control their own cultural futures

Fraying the Knot: Marital Property, Probate, and Practical Problems with Tribal Marriage Bans

While marriage equality is thought to be the law of the land, that is not necessarily true for members of nearly a dozen Indian tribes that continue to prohibit same-sex marriage. Whether a tribe permits same-sex marriage rests on the tribes’ inherent authority to govern their own internal affairs. Acting pursuant to that inherent authority, many tribes were leaders on the issue of marriage equality, legalizing same-sex marriage when most states prohibited such marriages. Other tribes, however, like the Navajo Nation, limit marriages to “one man and one woman.” As a consequence, a married Indian couple may have their marriage recognized by their state government and by the federal government, but not by the government of perhaps their most important community—their tribe. With a focus on property rights, this article considers how a tribe, like the Navajo Nation, that denies marriage rights to same-sex couples, would dispose of marital assets upon the death of a spouse who dies without a written will. Like most Americans, tribal members are more likely to die intestate. Consequently, their marital assets will be subject to a probate code that typically allocates a priority share to the surviving spouse as a mechanism to ensure financial support for the surviving spouse and children of the deceased. Unlike most Americans, however, tribal members are subject to at least three separate jurisdictional probate codes: (1) the federal American Indian Probate Reform Act that determines the allocation of the deceased’s real property held in trust; (2) their tribe’s probate code; and (3) a state probate code for any property located outside the reservation, such as bank accounts. While the federal and state probate processes would require recognition of the surviving same-sex spouse intestate share, the tribe would deny the surviving spouse his share of his deceased spouse’s estate. Accordingly, this article explores how a tribe’s rejection of same-sex marriage may divest a surviving spouse of her intestacy share on account of her spouse’s gender—and how that conflicts with federal and state law that prohibits such discrimination. It further examines how the denial of intestacy benefits undermines the stability and financial security of same-sex couples and their families. This article proposes that, if Indian tribes continue to prohibit same-sex marriage, they should recognize lawful same-sex marriages performed outside the tribe’s jurisdiction on the basis of either full faith and credit or comity. While a tribe may opt not to solemnize a marriage, refusing to recognize a marriage lawfully undertaken in another jurisdiction denies property rights to surviving spouses and undermines the ability of spouses to support each other and their offspring

Qualidade de vida de indivíduos com HIV: revisão integrativa / Quality of living of individuals with HIV integration review

 A qualidade de  vida de pacientes vivendo com HIV/AIDS é essencial, tendo em vista o caso específico dos adolescentes é ainda mais importante porque o jovem além de lidar com a resistência e a aceitação da doença, deve também enfrentar os conflitos da puberdade.O presente trabalho tem como objetivo realizar uma revisão integrativa em relação a qualidade de vida dos pacientes com HIV. Trata-se de um estudo de revisão integrativa realizado no período de 2016 a 2017, utilizando-se o banco de dados Medline e Lilacs. Apesar do impacto da infecção pelo HIV/AIDS na saúde psicológica e nas relações sociais dos indivíduos infectados, assim como no domínio físico, o uso da TARV provocou consequências positivas na saúde psicológica, proporcionando a desconstrução da ideia de morte advinda ao diagnóstico de portador do HIV/AIDS e a construção de melhores perspectivas de vida. A adesão ao tratamento em HIV/AIDS está relacionada a um aumento da sobrevida e de sua qualidade. Porém deve-se respeitar a posição pessoal do portador para fazer ou não o tratamento

A Strange Kind of Identity Theft: How Competing Definitions of Indian May Deny Individual Identity

To the extent we think about it all, most of us believe what our parents tell us about where we came from-about who our grandparents are, who our ancestors were, our ethnic background, our family histories. My own family story includes claims to Scottish, Irish, French, and English ancestry. It also includes the Cherokee great-grandmother so popular in American genealogical stories. I have not undertaken an extensive genealogical search to more accurately pinpoint the threads of my ancestral quilt; I have simply accepted the family lore without much thought to whether it was verifiable. My family\u27s claimed link to the Cherokee is not unique. In fact, claims of Indian heritage have been called one of the most common genealogical myths in the United States. For most people, talking about their Indian grandmother or relying on family stories to self-identify as Indian-at least in part-is not particularly noteworthy. However, during the 2012 election season, a firestorm erupted over then-U.S. Senate candidate Elizabeth Warren\u27s assertion that she had Cherokee and Delaware Indian ancestors.Warren based her claim on family lore-i.e., she learned of her ancestry from comments about her grandfather\u27s high cheekbones and from stories told to her by her mother and by her grandparents. It was an identity she grew up believing about herself. ... The preoccupation with what Warren stood to gain by claiming Indian ancestry appears to conflate family lore with the legal consequences of Indian status. It is that conflict between legal and social implications of Indianness that is the focus of this article. Part II will discuss the legal and social consequences that flow from Indian status in the United States. Part III will then discuss the myriad legal definitions of Indian and how the application of a particular definition can determine the status of an individual as part of a cultural group. Because federal law includes more than thirty definitions of Indian, the purpose for which the claim is made can affect whether a person is considered legally Indian. Consequently, an individual could be considered Indian under one area of federal law, but not under another. While most people are unlikely to encounter significant problems under this scheme, for some the effect can be profound. Part IV will look at three circumstances where the application of a particular definition can determine an individual\u27s Indian status, resulting in concrete legal consequences. Specifically, it will consider how definitions work to include or exclude individuals in criminal prosecutions, sharing of gaming revenue, and the adoptive placement of Indian children. Part V then considers whether, given the real life consequences, a cohesive definition of Indian is possible or desirable

Fraying the Knot: Marital Property, Probate, and Practical Problems With Tribal Bans

In the summer of 2015, marriage equality advocates celebrated the Supreme Court’s decision in Obergefell v. Hodges, which struck down state prohibitions on same-sex marriage.The Court found that “[t]he right of same-sex couples to marry . . . is part of the liberty promised by the Fourteenth Amendment.” Two years earlier, the Court had struck down parts of the federal Defense of Marriage Act (DOMA), finding that the federal government could not discriminate against same-sex married partners. With these two decisions, the Court ensured that the marriages of same-sex couples would be recognized by the federal government and in all fifty states. Largely left out of the celebration, however, were the members of nearly a dozen Indian tribes that continue to prohibit same-sex marriage either expressly or by implication. For these couples, their tribe’s ban on same-sex marriage remains untouched by the dictates of both Obergefell and Windsor. Instead, whether a tribe permits same-sex marriage rests on tribes’ inherent authority to govern their own internal affairs. Acting pursuant to their inherent authority, many tribes were leaders on the issue of marriage equality, legalizing same-sex marriage when most states prohibited such marriages. Other tribes, however, like the Navajo Nation, instituted their own laws (tribal DOMAs) that, like the federal and some state laws, limited marriages to “one man and one woman.” As a consequence of tribal DOMAs, a married Indian couple may have their marriage recognized by their state government and by the federal government, but not by the government of perhaps their most important community—their tribe

Tangled Up in Knots: How Continued Federal Jurisdiction over Sexual Predators on Indian Reservations Hobbles Effective Law Enforcement to the Detriment of Indian Women

Consequently, tribal lands have become safe havens for sexual predators, who can commit their offenses with little fear of prosecution. As Fort Peck Tribal Chairman A.T. “Rusty” Stafne explained, “Our people are afraid because there are persons committing crimes against us at night and in broad daylight....We have criminals that are simply unafraid of prosecution.” Indeed, “[t]o a sexual predator, the failure to prosecute sex crimes against American Indian women is an invitation to prey with impunity.” Congress has responded to the epidemic of reservation crime with the Tribal Law and Order Act27 (TLOA). But, as this article explains, the TLOA is fundamentally flawed, and will likely do little to address the underlying impediment to effective tribal law enforcement because it leaves the prevailing jurisdictional confusion in place. Instead, I argue that tribal governments will be able to adequately safeguard their citizens only if Congress expands tribal jurisdiction to permit tribes to arrest and prosecute all those who victimize tribal citizens. Part I discusses the legal barriers that leave reservations and Indian women open to sexual predators who have little fear of prosecution. Part II discusses the TLOA’s provisions to improve tribal law enforcement. Part III concludes that the TLOA does not go far enough to protect Indian women victimized by sexual assault. This article proposes instead that tribes need local control over law enforcement to effectively safeguard their citizens. For too long, tribes have been left powerless to defend their own people against predators who enter reservation lands and commit unspeakable violence against tribal citizens. At the heart of sovereignty is the responsibility of government to protect its citizens. It is time to permit tribes to rise to this responsibility

Fraying the Knot: Marital Property, Probate, and Practical Problems with Tribal Marriage Bans

While marriage equality is thought to be the law of the land, that is not necessarily true for members of nearly a dozen Indian tribes that continue to prohibit same-sex marriage. Whether a tribe permits same-sex marriage rests on the tribes’ inherent authority to govern their own internal affairs. Acting pursuant to that inherent authority, many tribes were leaders on the issue of marriage equality, legalizing same-sex marriage when most states prohibited such marriages. Other tribes, however, like the Navajo Nation, limit marriages to “one man and one woman.” As a consequence, a married Indian couple may have their marriage recognized by their state government and by the federal government, but not by the government of perhaps their most important community—their tribe. With a focus on property rights, this article considers how a tribe, like the Navajo Nation, that denies marriage rights to same-sex couples, would dispose of marital assets upon the death of a spouse who dies without a written will. Like most Americans, tribal members are more likely to die intestate. Consequently, their marital assets will be subject to a probate code that typically allocates a priority share to the surviving spouse as a mechanism to ensure financial support for the surviving spouse and children of the deceased. Unlike most Americans, however, tribal members are subject to at least three separate jurisdictional probate codes: (1) the federal American Indian Probate Reform Act that determines the allocation of the deceased’s real property held in trust; (2) their tribe’s probate code; and (3) a state probate code for any property located outside the reservation, such as bank accounts. While the federal and state probate processes would require recognition of the surviving same-sex spouse intestate share, the tribe would deny the surviving spouse his share of his deceased spouse’s estate. Accordingly, this article explores how a tribe’s rejection of same-sex marriage may divest a surviving spouse of her intestacy share on account of her spouse’s gender—and how that conflicts with federal and state law that prohibits such discrimination. It further examines how the denial of intestacy benefits undermines the stability and financial security of same-sex couples and their families. This article proposes that, if Indian tribes continue to prohibit same-sex marriage, they should recognize lawful same-sex marriages performed outside the tribe’s jurisdiction on the basis of either full faith and credit or comity. While a tribe may opt not to solemnize a marriage, refusing to recognize a marriage lawfully undertaken in another jurisdiction denies property rights to surviving spouses and undermines the ability of spouses to support each other and their offspring

It\u27s Alright, Ma, It\u27s Life and Life Only: Have Universities Been Meeting Their Legal Obligations to High-Risk Faculty During the Pandemic?

Even those universities most firmly committed to returning to in-person instruction in fall semester 2020 recognized that for health reasons some exceptions would need to be made. The CDC had identified two groups—people age sixty-five and over and people with certain medical conditions—as persons at increased risk of severe illness from COVID-19, and it had spelled out various special precautions they should take to avoid contracting the virus. Given the CDC\u27s unique stature, universities very reasonably could have been expected to grant exceptions to faculty falling into either group, but that\u27s not what many universities did. We argue that, properly understood, four separate legal sources required universities to exempt high-risk faculty in the past academic year from any in-person teaching requirement. Two of the four sources are federal statutes that qualify as major statements of national policy—the Americans with Disabilities Act and the Age Discrimination in Employment Act. The other two sources are important state-law doctrines with strong support in the American Law Institute\u27s most recent torts restatement—protection from intentional infliction of physical harm, and protection from intentional infliction of emotional distress. A high-risk faculty member who was denied an exemption may well find this article helpful in trying to decide whether to bring suit. Our primary objective in writing the article, however, is not to encourage people to sue. Instead, it is to drive home to universities that, going forward, they need to be considerably more conscious of, and conscientious about, their legal obligations than many of them were in formulating policies affecting high-risk faculty in the past academic year. And by going forward, we mean not only for the remainder of this pandemic, but also for any crises that the future may hold