Anita Sinha A LINEAGE OF FAMILY SEPARATION 87 Brooklyn Law Review 445 (Winter, 2022) History, as nearly no one seems to know, is not merely something to be read. And it does not refer merely, or even principally, to the past. On the contrary, the great force of history comes from the fact that we carry it within us .. This article is rooted in the belief that the articulation of shared narrative histories advances the pursuit of... 2022
Ashley Albert , Amy Mulzer ADOPTION CANNOT BE REFORMED 12 Columbia Journal of Race and Law 1 (July, 2022) I. Introduction. 2 II. Adoption as Family Regulation. 8 A. Child-Saving and the Creating of Legal Adoption. 10 B. Georgia Tann and the Development of Sealed Records. 14 C. The Baby Scoop Era. 16 D. The Rise of Transracial Adoption, the Modern Family Regulation System, and the Permanency Ideal. 18 1. The Indian Adoption Project. 18 2. The... 2022
Kelly Monahan AGING OUT OF FOSTER CARE AND OVER THE SERVICE CLIFF: ANALYSIS OF THE FAMILY FIRST PREVENTION SERVICES ACT AND STATES' PARENS PATRIAE DUTY TO SUPPORT OLDER YOUTH IN AND AGING OUT OF FOSTER CARE 19 Rutgers Journal of Law & Public Policy 235 (Spring, 2022) In the U.S. today there are over 400,000 children and youth in foster care. In 2020, less than half of the children and youth discharged from foster care were reunified with their parents and approximately 20,000 young people aged out of foster care. Aging out refers to the transition to adulthood for older youth in foster care when no legal... 2022
Matt Reynolds AMERICA'S LOST CHILDREN 108-JUL ABA Journal 42 (June/July, 2022) When researchers began the painstaking work of identifying Indigenous children who died at the Genoa U.S. Indian Industrial School in Nebraska, they kept making chilling discoveries. Although old newspaper clippings, student newsletters and death records revealed students had died of flu, complications from tuberculosis, measles, polio and... 2022
James T. Campbell AURELIUS'S ARTICLE III REVISIONISM: REIMAGINING JUDICIAL ENGAGEMENT WITH THE INSULAR CASES AND "THE LAW OF THE TERRITORIES" 131 Yale Law Journal 2542 (June, 2022) The Supreme Court's unanimous decision upholding the appointments structure of Puerto Rico's controversial Financial Oversight and Management Board in FOMB v. Aurelius has, to date, yielded commentary fixated on what the Justices did not say. The bulk of that commentary criticizes the Court for declining to square up to and overturn the Insular... 2022
Nicole Russo BACK TO BASICS: THE SUPREME COURT'S RETURN TO FUNDAMENTAL PRINCIPLES OF FEDERAL INDIAN LAW IN MCGIRT v. OKLAHOMA AHEAD OF EQUAL PROTECTION CHALLENGE TO THE INDIAN CHILD WELFARE ACT OF 1978 55 Suffolk University Law Review 123 (2022) [T]he Supreme Court has been inattentive, flippant, and disrespectful of Indian rights, and has seen its task as one of finding arguments that will make actions by the other two branches appear legal. Many doctrines' have emerged over the course of 170 years of hearing Indian cases, but the various courts have felt no compulsion to follow... 2022
Amy Reavis BETTER TOGETHER: TOWARD ENDING STATE REMOVAL OF SUBSTANCE-EXPOSED NEWBORNS FROM THEIR PARENTS 46 New York University Review of Law and Social Change 362 (2022) The United States' child welfare system has long been an emperor with no clothes. The stated mission of the federal Children's Bureau is to strengthen families, prevent child abuse and neglect, and ensure permanency for children. This mission is impossible to critique in the abstract. But the reality is that this behemoth of a system--operating... 2022
Kirsten Matoy Carlson BRINGING CONGRESS AND INDIANS BACK INTO FEDERAL INDIAN LAW: THE RESTATEMENT OF THE LAW OF AMERICAN INDIANS 97 Washington Law Review 725 (October, 2022) Abstract: Congress and Native Nations have renegotiated the federal-tribal relationship in the past fifty years. The courts, however, have failed to keep up with Congress and recognize this modern federal-tribal relationship. As a result, scholars, judges, and practitioners often characterize federal Indian law as incoherent and inconsistent. This... 2022
Sydney Groll COMMUNITIES AS CARETAKERS: THE INDIAN CHILD WELFARE ACT AS AN ANTIRACIST FRAMEWORK FOR ALL CHILD WELFARE CASES 19 Rutgers Journal of Law & Public Policy 279 (Spring, 2022) Americans have long been trained to see the deficiencies of people rather than policy. It's a pretty easy mistake to make: People are in our faces. Policies are distant. We are particularly poor at seeing the policies lurking behind the struggles of people. --Ibram X. Kendi The child welfare system is racist. As with all systems in the United... 2022
Josh Gupta-Kagan CONFRONTING INDETERMINACY AND BIAS IN CHILD PROTECTION LAW 33 Stanfor Law and Policy Review 217 (September, 2022) The child protection legal system faces strong and growing demands for change following at least two critiques. First, child protection law is substantively indeterminate; it does not precisely prescribe when state agencies can intervene in family life and what that intervention should entail, thus granting wide discretion to child protection... 2022
Tim Eigo CULTURE, DENIAL, JUSTICE 58-AUG Arizona Attorney 4 (July/August, 2022) Once again, leaders of the State Bar Indian Law Section are making us at the magazine look absolutely prophetic. The issue you hold in your hand or scroll through online took almost a year to put together. It started with deep thinking by Indian Law practitioners, followed by a call for content, consideration of submissions, hard choices, thorough... 2022
Janice Beller DEFENDING THE GOLD STANDARD: AMERICAN INDIAN TRIBES FIGHT TO SAVE THE INDIAN CHILD WELFARE ACT 65-FEB Advocate 16 (February, 2022) While most folks rush in and out of their local post office, indifferently dropping off or picking up mail on their way to somewhere else, Malissa Poog remembers the Blackfoot Post Office with an entirely different set of feelings. Melissa, a member of the Shoshone-Bannock Tribe, fondly remembers often visiting the post office with her mother as a... 2022
Gabriel J. Chin DRED SCOTT AND ASIAN AMERICANS 24 University of Pennsylvania Journal of Constitutional Law 633 (June, 2022) Chief Justice Taney's 1857 opinion in Dred Scott v. Sandford is justly infamous for its holdings that African Americans could never be citizens, that Congress was powerless to prohibit slavery in the territories, and for its proclamation that persons of African ancestry had no rights which the white man was bound to respect. For all of the... 2022
Ann Laquer Estin EQUAL PROTECTION AND THE INDIAN CHILD WELFARE ACT: STATES, TRIBAL NATIONS, AND FAMILY LAW 35 Journal of the American Academy of Matrimonial Lawyers 201 (2022) The complex legal relationship between states, the United States, and Native nations can produce serious confusion in family law. Our system of federal Indian law, developed over several centuries, recognizes tribal sovereignty and defines the scope of state power with respect to federally-recognized Indian lands and communities. For the most part,... 2022
Cassondra M. Church EXPOSED: HOW HIGH-PROFILE LITIGATION IMPACTS INDIAN CHILDREN'S PRIVACY 69-APR Federal Lawyer 26 (March/April, 2022) I reminisced about the memories that were frozen within each photo on a lazy Sunday afternoon. Each photograph was neatly kept in a large leatherbound photo album, beginning with a blurry photo of an ultrasound and ending with a photo of my high school graduation. As I flipped through the weathered pages, I remember thinking how impressive it was... 2022
Sadie Hart FALLING THROUGH THE CRACKS: THE AMERICAN INDIAN FOSTER CARE TO SEXUAL EXPLOITATION PIPELINE AND THE NEED FOR EXPANDED AMERICAN INDIAN COMMUNITY SERVICES IN MINNESOTA 15 DePaul Journal for Social Justice 1 (Winter/Spring, 2021-2022) Following the discovery of hundreds of children's bodies at residential schools in Canada, United States Interior Secretary Deb Haaland called for an investigation into the federal government's oversight of American Indian boarding schools. This call highlights a growing awareness of the United States' legacy of violence against American Indians.... 2022
Courtney G. Joslin , Catherine Sakimura FRACTURED FAMILIES: LGBTQ PEOPLE AND THE FAMILY REGULATION SYSTEM 13 California Law Review Online 78 (November, 2022) In February 2022, the Texas Governor and the Texas Attorney General declared that parents who provide gender-affirming care to their children should be investigated for child abuse. These declarations expressly authorize the surveillance of, intervention in, and possible destruction of LGBTQ families. Discussions of these developments suggest that... 2022
Victoria Roman FROM APOLOGY TO ACTION: A COMMENT ON TRANSITIONAL JUSTICE IN THE UNITED STATES AND CANADA 37 Maryland Journal of International Law 122 (2022) On September 30, 2021, National Day of Remembrance for Native Americans, Senator Elizabeth Warren (D-Mass) and the Co-Chairs of the Congressional Native American Caucus reintroduced The Truth and Healing Commission on Indian Boarding School Policies in the United States. U.S. Secretary of the Interior Deb Haaland (Laguna Pueblo) first introduced... 2022
Charisa Smith FROM EMPATHY GAP TO REPARATIONS: AN ANALYSIS OF CAREGIVING, CRIMINALIZATION, AND FAMILY EMPOWERMENT 90 Fordham Law Review 2621 (May, 2022) America's legacy of violent settler colonialism and racial capitalism reveals a misunderstood and neglected civil rights concern: the forced separation of families of color and unwarranted state intrusion upon caregiving through criminalization and surveillance. The War on Drugs, the Opioid Crisis, and the COVID-19 pandemic are a few examples... 2022
N. Lauryn Boston HON. ALLIE GREENLEAF MALDONADO 69-APR Federal Lawyer 16 (March/April, 2022) The reservation lands of the Little Traverse Bay Bands of Odawa Indians (LTBB Tribe) lie along the picturesque northern shores of Michigan's Lower Peninsula, where great white pine, red oak, and colorful sugar maple dominate the landscape of a region once called by the native Odawa the land of the crooked tree. It is here that the Hon. Allie... 2022
Tara Hubbard , Fred Urbina ICWA--THE GOLD STANDARD 58-AUG Arizona Attorney 32 (July/August, 2022) In its next term, the Supreme Court of the United States has the important task of deciding the constitutionality of the Indian Child Welfare Act (ICWA) in Haaland, Sec. of Interior, et al. v. Brackeen, Chad E., et al. This case started in the Northern District of Texas when several non-Native prospective adoptive placements brought suit, alleging... 2022
Chris Gottlieb IMPROVING RES IPSA LOQUITUR DOCTRINE IN CHILD ABUSE CASES: A STEP TOWARD RACIAL JUSTICE 25 Journal of Gender, Race and Justice 411 (Spring, 2022) C1-2Table of Contents I. Introduction. 412 II. Prosecution of Civil Child Abuse: Demographics and Res Ipsa Loquitur Doctrine. 415 III. Spreading the Blame. 418 IV. Unprincipled Use of Res Ipsa Loquitur Doctrine in Child Abuse Cases: New York Example. 420 V. Principled Use of Res Ipsa Loquitur in the Realm of Child Abuse. 429 VI. Holding Partners... 2022
Mia Montoya Hammersley , Adriana M. Orman , Wouter Zwart INDIGENOUS ERASURE IN PUBLIC SCHOOLS 58-AUG Arizona Attorney 22 (July/August, 2022) Every year, millions of Indigenous students walk through our Nation's public schoolhouse gates to receive an education. Historically, however, public schools have served as a tool for the Americanization of the Indian or, put more bluntly, to Kill the Indian, Save the Man. The legacy of erasing Indigenous identity reverberates to this day.... 2022
Addie C. Rolnick INDIGENOUS SUBJECTS 131 Yale Law Journal 2652 (June, 2022) This Article tells the story of how race jurisprudence has become the most intractable threat to Indigenous rights--and to collective rights more broadly. It examines legal challenges to Indigenous self-determination and land rights in the U.S. territories. It is one of a handful of articles to address these cases and the only one to do so through... 2022
Robin Valenzuela, Indiana University Bloomington INTERSTITIAL PRECARITY: THE ROMANCE AND TRAGEDY OF THE TRANSNATIONAL CHILD WELFARE SYSTEM 45 PoLAR: Political and Legal Anthropology Review 94 (May, 2022) This article examines a memorandum of understanding (MOU) between Chicago's Mexican Consulate and the Illinois Department of Child and Family Services (DCFS), which obliges DCFS to provide prompt consular notification after assuming protective custody of a Mexican or Mexican American minor. Developed in 2001, this bilateral agreement also enables... 2022
Genesis M. Agosto INVOLUNTARY STERILIZATION OF NATIVE AMERICAN WOMEN IN THE UNITED STATES: A LEGAL APPROACH 100 Nebraska Law Review 995 (2022) C1-2TABLE OF CONTENTS I. Introduction. 995 II. Why Native Sterilization Matters. 997 A. Significance. 997 B. Contribution to Scholarship. 1001 III. Legal Context of Native Sterilization. 1002 A. Origins of Eugenic Laws in the United States. 1002 B. Infamous Eugenic Cases. 1003 C. Passage of Laws that Allowed Native Sterilizations. 1007 IV. The... 2022
Rebecca Tsosie JUSTICE AS HEALING: NATIVE NATIONS AND RECONCILIATION 54 Arizona State Law Journal 1 (Spring, 2022) I am honored to give the Canby Lecture for 2020, and I thank Patty Ferguson-Bohnee and Kate Rosier for their leadership of the Indian Legal Program and for inviting me today. I'm delighted to return, even in a virtual space, to the Sandra Day O'Connor College of Law at Arizona State University (ASU). This was my academic home for over twenty-two... 2022
Matthew L.M. Fletcher , Wenona T. Singel LAWYERING THE INDIAN CHILD WELFARE ACT 120 Michigan Law Review 1755 (June, 2022) This Article describes how the statutory structure of child welfare laws enables lawyers and courts to exploit deep-seated stereotypes about American Indian people rooted in systemic racism to undermine the enforcement of the rights of Indian families and tribes. Even when Indian custodians and tribes are able to protect their rights in court,... 2022
Patrick Derocher MANIFESTING A BETTER DESTINY: INTEREST CONVERGENCE AND THE INDIAN CLAIMS COMMISSION 24 NYU Journal of Legislation and Public Policy 511 (2021-2022) As debates continue over whether the United States should consider, let alone how it might implement, a reparations plan for the descendants of enslaved people, the conversation often proceeds without recognizing that this country has already administered a similar program: The Indian Claims Commission (ICC). However, the fact that the ICC has... 2022
Matthew L.M. Fletcher MUSKRAT TEXTUALISM 116 Northwestern University Law Review 963 (2022) Abstract--The Supreme Court decision McGirt v. Oklahoma, confirming the boundaries of the Creek Reservation in Oklahoma, was a truly rare case in which the Court turned back arguments by federal and state governments in favor of American Indian and tribal interests. For more than a century, Oklahomans had assumed that the reservation had been... 2022
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