An Idea of American Indian Land Justice: Examining Native Land Liberation in the New Progressive Era

This article is inspired by Professor Robert Odawi Porter’s remarks during the 2009 D.C. Federal Indian Bar conference in which he outlined a seemingly radical proposal for “land liberation” for American Indian tribes – the abandonment of United States trusteeship over tribal land, and return of title and associated rights to numerous tribes who have lost their land due to nefarious governmental policies and bad deals. In an effort to bridge Porter’s visionary legal viewpoint with renowned economist and philosopher, Amartya Sen’s recent visionary contribution on justice, An Idea of American Indian Land Justice, helps revive an Indian law, critical studies tradition calling for greater tribal sovereignty, but in a new light, however, that examines a global political climate that embraces the human rights mantle to one degree or another. This article tries to illuminate two liberationist outlooks to scrutinize a legal proposal by a leading mind in Indian law that also has wide-reaching implications for other movements, struggles, and communities across the world

Election Report: A Heartland Vote for Islamic Bigotry

The author discusses the legal community’s reaction to the Oklahoma referendum on November 1, 2010, in which voters approved a state constitutional amendment that bans the use of Islamic Law and international law in state court decisions

Election Report: A Heartland Vote for Islamic Bigotry

The author discusses the legal community’s reaction to the Oklahoma referendum on November 1, 2010, in which voters approved a state constitutional amendment that bans the use of Islamic Law and international law in state court decisions

An Idea of American Indian Land Justice: Examining Native Land Liberation in the New Progressive Era

This article is inspired by Professor Robert Odawi Porter’s remarks during the 2009 D.C. Federal Indian Bar conference in which he outlined a seemingly radical proposal for “land liberation” for American Indian tribes – the abandonment of United States trusteeship over tribal land, and return of title and associated rights to numerous tribes who have lost their land due to nefarious governmental policies and bad deals. In an effort to bridge Porter’s visionary legal viewpoint with renowned economist and philosopher, Amartya Sen’s recent visionary contribution on justice, An Idea of American Indian Land Justice, helps revive an Indian law, critical studies tradition calling for greater tribal sovereignty, but in a new light, however, that examines a global political climate that embraces the human rights mantle to one degree or another. This article tries to illuminate two liberationist outlooks to scrutinize a legal proposal by a leading mind in Indian law that also has wide-reaching implications for other movements, struggles, and communities across the world

Religious Exemption or Exceptionalism? Exploring the Tension of First Amendment Religion Protections & Civil Rights Progress within the Employment Non-Discrimination Act

The District of Columbia (D.C.) marked a landmark civil rights achievement in December 2009 when the city passed the Religious Freedom and Civil Marriage Equality Amendment Act. The law’s enactment allowed D.C. to become the sixth jurisdiction to sanction same-sex marriage in the United States. Supporters hailed the law as a victory for lesbian and gay equality, while detractors vowed that their efforts to traditionally define marriage would continue. Among the most public opponents of the law was the Catholic Archdiocese of Washington, which operates Catholic Charities, a leading service provider to low-income residents in the metropolitan area. The Catholic Archdiocese warned the D.C. City Council that it would sever its professional relationship with the city if the same-sex marriage law passed because same-sex unions are inconsistent with the Church’s core theological teachings. Once the law went into effect, over a year later, the D.C. City Council cancelled the foster and adoption program that the city’s Child and Family Services Agency and the Catholic Archdiocese co-administered for eighty years, citing that the religious organization was no longer eligible to provide services. Weeks later, the Catholic Archdiocese announced that it would no longer offer spousal benefits to its new employees. The political battle between the D.C. City Council and the Catholic Archdiocese remains heated, as the law’s full fall-out is yet to be realized. However, there are two observations from this conflict that should inform lawmakers and policy advocates alike. The first observation is that Catholic Charities’s choice to cut its employee benefits demonstrates the lengths to which some religious organizations will go to deny lesbian and gay equality. D.C.’s same-sex marriage law itself did not require that Catholic Charities discontinue its employee spousal benefits. Rather, the Catholic Archdiocese chose to eliminate spousal benefits for all of its employees to comply with the Equal Pay Act and Title VII of the Civil Rights Act of 1964, which both were triggered by the same-sex marriage law. The Equal Pay Act requires equal compensation for substantially similar work, and Title VII bans employer discrimination on the basis of sex, both of which mandate equal compensation for employees performing similar work, including fringe benefits. Catholic Charities, therefore, would have been exposed to legal liability if the organization did not extend equal employee benefits to those with same-sex spouses. The Catholic Archdiocese ultimately elected to cut spousal benefits for every new employee rather than to offer the same benefits to their new lesbian or gay employees. In other words, Catholic Charities’ administrative decision hurt all of its new workers — gay and straight alike. The second observation is that the D.C. City Council elected to carve out a narrow religious activity exemption in its same-sex marriage law, which states: Notwithstanding any other provision of law, a religious society, or nonprofit organization that is operated, supervised, or controlled by or in conjunction with a religious society, shall not be required to provide services, accommodations, facilities, or goods for a purpose related to the solemnization or celebration of a marriage, or the promotion of a marriage through religious programs, counseling, courses, or retreats, that is in violation of the religious society’s beliefs. The Act’s religious organization exemption, related only to marriage activities, strikes a reasonable balance between religious freedom and civil rights. On one hand, the exemption states that a religious organization may refuse to sanction same-sex unions, but, on the other hand, the exemption also implicitly recognizes that civil society may exercise its institutional prerogative to confer benefits to whomever it chooses. Religious freedom and civil rights, in this way, can harmonize to accommodate a plurality of beliefs and interests. The D.C. law is an exception, however, as many lesbian, gay, bisexual, and transgender civil rights laws fail to strike a reasonable balance between religious freedom and robust discrimination protection. Most notably, the Employment Non-Discrimination Act (ENDA), designed to extend federal employment discrimination protection to gay, lesbian, bisexual, and transgender (LGBT) people, contained a religious organization exemption much broader than the existing Title VII exemption. ENDA’s religious exemption, taking different iterations over fifteen years, begs an important question: why were religious organizations permitted to discriminate against LGBT people but not against other statutorily protected groups? This comment discusses ENDA’s long history of broad religious exemption and its meanings for LGBT civil rights progress ahead. Part I traces ENDA’s religious exemption transformation from 1994 to present, noting a narrowing of the exemption as the LGBT movement witnessed increasing political success. Part II examines the delicate balance between the First Amendment Religion Clauses, as well as LGBT civil rights and religious freedom, and argues that ENDA’s previous exemptions tipped this delicate balance toward religious over-accommodation prohibited by the Establishment Clause. Part III concludes that the LGBT movement experienced a significant victory with the modified religious exemption in the 2009 version of ENDA, which challenged the conservative Christian bloc’s political and cultural monopoly over LGBT rights’ narrative, and represents the defeat of a potentially dangerous precedent for future civil rights struggles

Agricultural Water Transfers in the Western United States

Irrigation for agricultural production represents the largest consumptive use of water in the western United States. Understanding the ways in which agricultural producers respond to physical and institutional water scarcity is therefore key to managing water risk. One of the important risk management tools available to agricultural producers is the ability to transfer water across space and time. Water transfers range from very informal handshake agreements between neighbors to very formal transfers of real property across large distances with mandatory state and federal reporting. Given the range of potential water transfer mechanisms, there are significant knowledge gaps on the variety, scale, and scope of agricultural water transfers. The goal of this report is to improve understanding of the state of water transfers between agricultural producers in the American West. It is intended for a broad range of practitioners including water district managers and board members, commodity groups, individual agricultural producers, policymakers, researchers, and others interested in gaining insights into how the agricultural sector currently reallocates water, and challenges and opportunities for improving water reallocation. This report was informed by interviews with dozens of water practitioners. Common themes emerging from the interviews include: • Water transfers between agricultural producers are widespread in the American West, implying that these transfers provide value and risk management • Most water transfers seem to be informal and occur at a local, within-water district level • Data collection about transfers is limited and the terminology used is localized and variable: often water transfer participants do not self-identify as undertaking water transfers • Well-defined property rights with strong enforcement encourage water transfer activity In addition to synthesizing key practices and results, the report provides examples of many different kinds of water transfers and supporting mechanisms that are in operation across the western United States. A key objective of this report is to improve understanding of the variety of informal and formal water transfers occurring for agricultural production, to describe the transfer processes and considerations for managers and decision makers considering new transfer programs, and to discuss challenges and opportunities both to scale transfers and to improve data collection. Water transfers between agricultural producers are widespread in the Western United States, implying that such transfers provide both value and risk management to voluntary participants. Most water transfers seem to be informal and occur at a local, within-water district level. Current data collection about transfers is limited and some common types of transfers generate no recordkeeping at all. Moreover, the terminology used for transfers is localized and variable: often water transfer participants do not self-identify as undertaking water transfers. The analysis highlighted the potential benefit of sharing clear information about potential transfer types and their applicability, as well as the need to emphasize the role of well-defined property rights with strong enforcement in building trust for water transfer activities

Hard and soft cap groundwater allocations: a comparison of groundwater pumping restrictions on hydrologic and economic outcomes

While groundwater is an important primary and supplementary source of water in the western United States, its overuse can lead to negative consequences such as stream depletion, seawater intrusion, or land subsidence. An increasing number of groundwater management districts are restricting individual pumping in an effort to limit, or even reverse, such consequences. The nature of groundwater availability lends itself to more flexible allocation schemes, which I call "hard caps" and "soft caps." While a hard cap sets a groundwater user's maximum pumping in a single year, a soft cap allows a groundwater user to meet a multi-year average so that the user may pump more in some years and less in others. While there are many examples of hard and soft caps for groundwater in practice, no study to date has compared the resulting hydrologic and economic outcomes of each scheme. Using coupled agronomic, economic, and hydrologic models, I examine the performance of hard and soft caps for groundwater-fed irrigation. Irrigated agriculture uses the majority of groundwater in the United States and therefore the sector represents a significant stakeholder in the development of allocation schemes. I model the profit-maximizing decisions for an agricultural producer growing irrigated corn in western Nebraska. I illustrate the hydrologic and economic outcomes in the case of groundwater-induced stream depletion, which is a spatially and temporally heterogeneous consequence, or externality, of groundwater pumping. To do so, I combine datasets on regional climate, soils, economic parameters, and aquifer properties and use them as inputs to an instraseasonal crop-water model, an economic optimization, and a stream depletion model. I show that at moderate allocation levels, the soft cap results in higher expected profits and lower variance of profits. However, it can come at a cost: In exceptionally dry years, the soft cap can result in acute groundwater pumping, and therefore, stream depletion. The severity of this result depends on the hydrologic properties of the aquifer and well location. At non-binding or very binding allocation levels, the performances of the caps are similar. The implications for developing appropriately flexible allocations will depend on the combined needs for groundwater management and well-specific properties, meaning that a blended approach to caps in some instances may be desirable