Adopting Veronica

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Category: Family Law, Federal Indian Law, Public
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Recently I wrote about the U.S. Supreme Court decision in which the Court declared that a Native American father was not covered by the Indian Child Welfare Act’s procedures for TPR because he had abandoned the child before her birth, and the Court stated that ICWA only protects existing families and their relationships. SCOTUS remanded the case to the South Carolina courts to decide the future custody of the child. Last week, the South Carolina Supreme Court found that the couple seeking to adopt Baby Girl – named Veronica – was the only party properly seeking her adoption, and ordered the Family Court to finalize the adoption.

So what happens now? It appears that Veronica will be transferred almost immediately, which is somewhat unusual. Normally, a court would hold a hearing to determine the best interests of the child, and might gradually re-introduce the child to her adoptive parents since, after two years in Oklahoma with her birth father, little Veronica might not feel comfortable moving back into the Capobianco home in South Carolina. In addition, under so-called “grandparent visitation” statutes, the birth father might be awarded some visitation rights. But here, where the adoptive parents and the biological father have fought bitterly for almost Veronica’s whole life (and where they live half a continent away from each other), shared custody might not be a viable option. Read more »

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When Did Slavery Really End in the United States?

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Category: Constitutional Law, Federal Indian Law, Legal History, Public
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During the 2012-2013 academic year, Marquette University has sponsored “The Freedom Project,” which was described at the outset as “a year-long commemoration of the Sesquicentennial of the Civil War that will explore the many meanings and histories of emancipation and freedom in the United States and beyond.” Much of the recent focus has been upon the Emancipation Proclamation, which was issued in its final form by President Abraham Lincoln on January 1, 1863, an event described in impressive detail by Professor Idleman in an earlier post.

An interesting question rarely addressed is whether either the Emancipation Proclamation or the subsequently adopted Thirteenth Amendment to the Constitution applied to “Indian Territory.”

By Indian Territory, I refer to that part of the unorganized portion of the American public domain that was set apart for the Native American tribes. More specifically, I use the term to refer to those lands located in modern day Oklahoma that was set aside for the relocation of the so-call “Civilized Tribes” of the Southeastern United States: the Cherokee, Chickasaw, Choctaw, Creek, and Seminole. Read more »

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Legal Anomalies in Federal Indian Law, Part II—Tribal Jurisdiction Over Non-Indians

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Category: Criminal Law & Process, Federal Indian Law, Public, U.S. Supreme Court
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Federal Indian Law—the legal provisions and doctrines governing the respective statuses of, and relations among, the federal, state, and tribal governments—is replete with seeming anomalies when compared to the background of typical domestic law in the United States. The purpose of this post, and of the series of which it is a part, is to identify and examine such anomalies in an effort to acquaint readers with the metes and bounds of Federal Indian Law, while shedding some light on the origins and perhaps the future of this unique legal realm.

The prior post examined one such anomaly, namely, the permissibility of the government’s differential treatment of Indian tribes and their members despite the U.S. Constitution’s guarantee of equal protection. In this, the second installment in the series, another topic of significant contemporary interest will be surveyed. This is the oddly diminished character of Indian tribal sovereignty and, in particular, the extent to which tribes, in their own territories, lack criminal and civil authority over non-Indians or non-tribal members.

The capacity to enact and enforce laws is, of course, one of the hallmarks of sovereignty within the Western political tradition. This includes both criminal laws and civil laws, the latter often being divided into powers of regulation, taxation, and adjudication. It is typically accepted, moreover, that the reach of a sovereign’s laws extends along two axes: citizenship and territory. That is, the sovereign has the authority to govern not only its citizens but also all others who enter its territory. Thus, for example, inquiries into the jurisdiction of courts over a person or his property ordinarily entail an examination of the person’s citizenship and/or the relationship between the person’s conduct or property and the territory of the sovereign to which the courts belong.

In recent decades, however, Indian tribal sovereignty has increasingly been confined to a single axis—that of citizenship—leaving tribes largely powerless to enforce their laws against non-Indians who, within the tribe’s territory, commit criminal conduct or engage in activities that would normally be susceptible to regulation, taxation, or adjudication. Perhaps surprisingly, the institution primarily responsible for this diminishing conception of tribal sovereignty is not Congress, which the Supreme Court has repeatedly described as having “plenary power” over Indian affairs, but rather the Court itself. Read more »

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Legal Anomalies in Federal Indian Law, Part I—Equal Protection

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Category: Constitutional Interpretation, Constitutional Law, Federal Indian Law, Public, Race & Law
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Federal Indian Law—the legal provisions and doctrines governing the respective statuses of, and relations among, the federal, state, and tribal governments—is replete with seeming anomalies when compared to the background of typical domestic law in the United States. Such anomalies or aberrations, though frequently noted, have seldom if ever been systematically delineated in cases or in legal scholarship. The purpose of this and succeeding blog posts is to identify and examine several of these anomalies, the hope being that readers will gain a better sense of the unique topography of Federal Indian Law and at least some of the reasons that have brought it about.

Examined in this first post will be one such apparent anomaly, namely, the permissibility of the government’s differential treatment of Indian tribes and their members despite the U.S. Constitution’s guarantee of equal protection. This issue goes to the heart of Federal Indian Law, which is largely embodied as statutes in Title 25 of the U.S. Code (denominated “Indians”) and implemented through rules and regulations in Title 25 of the Code of Federal Regulations (also denominated “Indians”). To the extent that the classification of “Indian” ordinarily if not always includes a component of race, ethnicity, ancestry, or perhaps national origin, its use in the federal Code and Regulations—including its derivative use in judicial opinions—would seem presumptively to run afoul of constitutional as well as statutory proscriptions against discrimination on the basis of race, ethnicity, ancestry, and the like. After all, were one to encounter a Title of the U.S. Code designated “African Americans” or “Latinos” or “Germans,” an eyebrow, if not two, would almost certainly be raised in response. Read more »

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Effective Assistance of Counsel and Tribal Courts—A Different Standard?

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Category: Constitutional Law, Criminal Law & Process, Federal Indian Law, Public
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Virtually none of the U.S. Constitution’s guarantees or prohibitions applies to the actions of Indian tribal governments when those governments are exercising their inherent or retained powers. For this reason, among others, Congress in 1968 passed the Indian Civil Rights Act (ICRA), 25 U.S.C. §§ 1301-1303, which imposes on tribal governments most though not all of the guarantees found in the Bill of Rights and 14th Amendment. After almost 45 years, however, it remains uncertain whether or to what extent ICRA’s statutory guarantees must parallel the interpretations given to the respective constitutional guarantees on which they are based.

Among ICRA’s original provisions is a command that “[n]o Indian tribe in exercising powers of self-government shall . . . deny to any person in a criminal proceeding the right . . . at his own expense to have the assistance of counsel for his defense . . . .” This, of course, is an analog to the 6th Amendment guarantee that “[i]n all criminal prosecutions, the accused shall enjoy the right . . . to have the Assistance of Counsel for his defence,” which the U.S. Supreme Court has interpreted as requiring “reasonably effective assistance,” Strickland v. Washington, 466 U.S. 668, 687 (1984), by “an advocate who is . . . a member of the bar,” i.e., a licensed attorney. Wheat v. United States, 486 U.S. 153, 159 (1988).

In the recent case of Jackson v. Tracy, No. CV 11–00448–PHX–FJM, 2012 WL 3704698 (D. Ariz. Aug. 28, 2012), a federal district court has held that ICRA’s assistance-of-counsel guarantee requires neither that one’s advocate be a licensed attorney nor that the advocate be held to the standard of a reasonably effective attorney. Read more »

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The Civil Jurisdiction of Indian Tribes

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Category: Civil Rights, Congress & Congressional Power, Federal Indian Law, Public
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This is the fourth in a series of posts addressing commonly asked questions regarding American Indians, Indian Tribes, and the law. The first post dealt with casinos, taxation, and hunting and fishing rights; the second focused on the relationship between the unique legal treatment of Indian tribes or their members and the U.S. Constitution’s guarantee of equal protection; and the third explored the criminal jurisdiction of tribes. This post will examine the civil jurisdiction of tribes, both over members and especially over non-members, in each its three major forms: regulation, taxation, and adjudication.

As noted in the last post, tribal jurisdiction (not unlike federal and state jurisdiction) is uniquely limited in a manner that reflects the place and circumstances of tribes on the American legal landscape. In particular, each tribe is said to retain its original or inherent jurisdiction—the sovereign authority possessed prior to European contact and the subsequent formation of the United States—except insofar as such jurisdiction has been (1) relinquished or ceded by tribe itself through a treaty or other agreement, (2) expressly abrogated or taken away by Congress, or (3) deemed by the judiciary, especially the U.S. Supreme Court, to have been implicitly lost by virtue of the tribe’s historical circumstances and contemporary status. Read more »

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The Criminal Jurisdiction of Indian Tribes

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Category: Criminal Law & Process, Federal Indian Law, Federal Law & Legal System, Federalism, Public
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This is the third in a series of posts addressing commonly asked questions regarding American Indians, Indian Tribes, and the law. The first post dealt with casinos, taxation, and hunting and fishing rights, while the second focused on the relationship between the unique legal treatment of Indian tribes or their members and the U.S. Constitution’s guarantee of equal protection. This post will explore the criminal jurisdiction of tribes, with the expectation that one or more future posts will similarly explore the criminal jurisdiction of the federal and state governments in relation to Indians or conduct on Indian lands.

Sovereignty, as conceptualized in the Western legal-political tradition, has customarily included the power to enact and enforce a criminal code against persons who, within the sovereign’s territory or against its citizenry, commit conduct injurious to health, safety, welfare, and morals. This is a theoretical standard, however, and today across the globe as well as in the United States—and not just with regard to Indian tribes—one can observe forms of sovereignty that include degrees of diminished (or less-than-plenary) criminal jurisdiction.

The most obvious domestic example involves the respective authority of the federal and state governments. Read more »

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American Indians and Equal Protection

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Category: Civil Rights, Federal Indian Law, Public, Race & Law
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This is the second in a series of posts addressing some of the most commonly asked questions regarding American Indians, Indian Tribes, and the law. The first post addressed casinos, hunting and fishing rights, and taxes. This second post, unlike the first, is devoted to just one question, namely, why doesn’t the unique legal treatment of Indian tribes or their members violate the Constitution’s guarantee of equal protection? Read more »

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Answers to Some Common Questions About American Indians

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Category: Federal Indian Law, Federal Law & Legal System, Public, Wisconsin Law & Legal System
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This blog is written largely for the benefit of non-Indians, readers who have no affiliation with one of the hundreds of federally recognized tribes, eleven of which are found in Wisconsin.  I teach a course on federal Indian law at Marquette’s law school, and the questions that follow are just a few of the ones that I often encounter personally or hear in public discussions. Read more »

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