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Reviving Indian Country: Expanding Alaska Native Villages’ Tribal Land Bases Through Fee-to-Trust Acquisitions
For the last fifty years, the possibility of fee-to-trust acquisitions in Alaska has been precarious at best. This is largely due to the Alaska Native Claims Settlement Act of 1971 (ANCSA), which eschewed the traditional reservation system in favor of corporate land ownership and management. Despite its silence on trust acquisitions, ANCSA was and still is cited as the primary prohibition to trust acquisitions in Alaska. Essentially, ANCSA both reduced Indian Country in Alaska and prohibited any opportunities to create it, leaving Alaska Native Villages without the significant territorial jurisdiction afforded to Lower 48 tribes. However, recent policy changes from the Department of Interior reaffirmed the eligibility of trust acquisitions post-ANCSA and a proposed rule from the Bureau of Indian Affairs signals a favorable presumption of approval for Alaska Native fee-to-trust applications. This Note reviews the history and controversy of trust acquisitions in Alaska, and more importantly, it demonstrates the methods in which Alaska Native Villages may still acquire fee land for trust acquisitions after ANCSA.Abusing Discretion: The Battle for Childhood in Schools
For too many children the schoolhouse doors become a point of entry into the criminal justice system. Children of color are the most likely to suffer from this phenomenon. The presence of policing in schools is a key contributor to this “school-to-prison pipeline.” This Note argues that broad, discretionary mandates for school resource officers (SROs) promote biased law enforcement that impacts Black girls in different and specific ways. I contend that SRO mandates can be effectively limited by strategically bolstering community organizing efforts with impact litigation.Keeping Counsel: Challenging Immigration Detention Transfers as a Violation of the Right to Retained Counsel
In 2019 U.S. Immigration and Customs Enforcement (“ICE”) incarcerated nearly 500,000 individuals. More than half of the individuals detained by ICE were transferred between detention facilities, and roughly thirty percent of those transferred were moved between federal circuit court jurisdictions. Detention transfers are isolating, bewildering, and scary for the detained noncitizen and their family. They can devastate the noncitizen’s legal defense by destroying an existing attorney-client relationship or the noncitizen’s ability to obtain representation. Transfers also obstruct the noncitizen’s ability to gather evidence and may prejudicially change governing case law. This Note describes the legal framework for transfers and their legal and non-legal impacts. It contends that transfers violate noncitizens’ constitutional and statutory rights to retained counsel by obstructing the attorney-client relationship. Further, it argues that federal courts have jurisdiction to review right to counsel challenges to transfers under the Immigration and Nationality Act. Written with practitioners in mind, this Note canvasses the practical and legal difficulties of making such a challenge.Digital Colonialism: The 21st Century Scramble for Africa through the Extraction and Control of User Data and the Limitations of Data Protection Laws
As Western technology companies increasingly rely on user data globally, extensive data protection laws and regulations emerged to ensure ethical use of that data. These same protections, however, do not exist uniformly in the resource-rich, infrastructure-poor African countries, where Western tech seeks to establish its presence. These conditions provide an ideal landscape for digital colonialism. Digital colonialism refers to a modern-day “Scramble for Africa” where largescale tech companies extract, analyze, and own user data for profit and market influence with nominal benefit to the data source. Under the guise of altruism, large scale tech companies can use their power and resources to access untapped data on the continent. Scant data protection laws and infrastructure ownership by western tech companies open the door for exploitation of data as a resource for-profit and a myriad of uses including predictive analytics. One may believe that strengthening data protection laws will be a barrier to digital colonialism. However, regardless of their relative strength or weakness, data protection laws have limits. An analysis of Kenya's 2018 data protection bill, the General Data Protection Regulation (GDPR), and documented actions of largescale tech companies exemplifies how those limits create several loopholes for continued digital colonialism including, historical violations of data privacy laws; limitations of sanctions; unchecked mass concentration of data, lack of competition enforcement, uninformed consent, and limits to defined nation-state privacy laws.Do You See What I See? Problems with Juror Bias in Viewing Body-Camera Video Evidence
In the wake of the Michael Brown shooting in Ferguson, Missouri, advocates and activists called for greater oversight and accountability for police. One of the measures called for and adopted in many jurisdictions was the implementation of body cameras in police departments. Many treated this implementation as a sign of change that police officers would be held accountable for the violence they perpetrate. This Note argues that although body-camera footage may be useful as one form of evidence in cases of police violence, lawyers and judges should be extremely careful about how it is presented to the jury. Namely, the jury should be made aware of their own implicit biases and of the limited nature of the footage. Taking a look at the biases that all jurors hold as well as the inherent subjectivity of video footage, this Note shows how implicit biases and the myth of video objectivity can create problems in viewing body-camera footage and the footage should, therefore, be treated carefully when introduced at trial.Distant Voices Then and Now: The Impact of Isolation on the Courtroom Narratives of Slave Ship Captives and Asylum Seekers
Part I compares the nineteenth century cases of the Antelope and the Amistad to identify why they resulted in different outcomes despite having similar fact patterns. The Antelope concerned the fate of approximately 280 African captives discovered on a slave trade ship upon its interception by a U.S. revenue cutter. Since the slave trade in the United States was illegal at the time, the captives were transported to Savannah for trial through which their status—free or slave—would be determined. After a lengthy trial and appeals process in which Spain and Portugal laid claim to the captives, the Supreme Court determined that those captives claimed by a non-U.S. nation were slaves. The Court reasons that however “abhorrent” the slave trade was, the United States was obligated to recognize the rights of other nations to participate in it. In comparison, the Amistad concerned the fate of captives aboard a slave trade ship in which the captives committed mutiny, attempted to sail to Africa, but were captured by a U.S. vessel. The Supreme Court ordered them free despite the Spanish government’s claim that the captives were its property. Part I explores these different outcomes and argues that the absence of Antelope captives’ stories in the litigation process was partly due to the decision to isolate captives in slavery before their status was determined. In particular, it argues that this isolation affected the outcome of the Antelope by preventing captives from sharing their anecdotes and translating them to a format that would resonate with their legal counsel, the public, and judges. In contrast, the Amistad captives, while also detained, were situated close to those who could help them. They were able to transform their truths into a winning narrative for the court by understanding and leveraging the talents and expertise of counsel, and the biases of judges and the public. Part II argues that 200 years later, a similar environment of isolation suppresses the stories of another group with undetermined legal status: asylum seekers. Although slave ship captives were forced into the country with chains, while asylum seekers are driven into the country by fear, the legal status of both groups in their respective time periods was undetermined upon their arrival. Both groups deserved, by legal and moral standards, the opportunity to present the truth behind their arrival and to prove their legal status. Part II argues that the detention of asylum seekers mirrors the isolation of the Antelope captives by removing detainees from those most able to help them develop a persuasive narrative truth. Detention silences important voices, aggravates ineffective representation, damages public perception, and ultimately harms case outcomes.Fairness in the Exceptions: Trusting Juries on Matters of Race
Implicit bias research indicates that despite our expressly endorsed values, Americans share a pervasive bias disfavoring Black Americans and favoring White Americans. This bias permeates legislative as well as judicial decision-making, leading to the possibility of verdicts against Black defendants that are tainted with racial bias. The Supreme Court’s 2017 decision in Peña-Rodriguez v. Colorado provides an ex post remedy for blatant racism that impacts jury verdicts, while jury nullification provides an ex ante remedy by empowering jurors to reject convicting Black defendants when to do so would reinforce racially biased laws. Both remedies exist alongside a trend limiting the role of the jury and ultimately indicate that we trust juries to keep racism out of the courtroom in the exceptions to our normal procedures.Concealed Motives: Rethinking Fourteenth Amendment and Voting Rights Challenges to Felon Disenfranchisement
Felon disenfranchisement provisions are justified by many Americans under the principle that voting is a privilege to be enjoyed only by upstanding citizens. The provisions are intimately tied, however, to the country’s legacy of racism and systemic disenfranchisement and are at odds with the values of American democracy. In virtually every state, felon disenfranchisement provisions affect the poor and communities of color on a grossly disproportionate scale. Yet to date, most challenges to the provisions under the Equal Protection Clause and Voting Rights Act have been unsuccessful, frustrating proponents of re-enfranchisement and the disenfranchised alike. In light of those failures, is felon disenfranchisement here to stay? This Note contemplates that question, beginning with a comprehensive analysis of the history of felon disenfranchisement provisions in America, tracing their roots to the largescale effort to disenfranchise African Americans during Reconstruction, and identifying ways in which the racism of the past reverberates through practices of disenfranchisement in the present day. Applying this knowledge to understandings of prior case law and recent voting rights litigation, a path forward begins to emerge.Pushing an End to Sanctuary Cities: Will it Happen?
Sanctuary jurisdictions refer to city, town, and state governments (collectively, localities or local governments) that have passed provisions to limit their enforcement of federal immigration laws. Such local governments execute limiting provisions in order to bolster community cooperation, prevent racial discrimination, focus on local priorities for enforcement, or even to a show a local policy that differs from federal policy. The provisions are in the forms of executive orders, municipal ordinances, and state resolutions. Additionally, the scope of the provisions vary by locality: some prohibit law enforcement from asking about immigration status, while others prohibit the use of state resources to enforce federal immigration laws. Despite these variations, such local provisions intend to stifle cooperation with the federal government to adopt a more inclusionary local enforcement policy. Immigration policy is unanimously understood as a federal power, suggesting that federal immigration laws preempt the local governments’ provisions. Such preemption challenges have been brought to court, yet sanctuary cities remain largely untouched. The July 2015 murder of Kate Steinle in San Francisco, CA, renewed political discourse on the topic. Juan Francisco Lopez-Sanchez, an undocumented immigrant who had been previously deported five times, was charged for the murder. Mr. Lopez-Sanchez’s long history of crime and immigration violations fueled critiques of city policies and put the federal spotlight back onto sanctuary cities. The House of Representatives has since passed H.R. 3009, which would deny some federal assistance to localities that enact provisions prohibiting officers from taking certain actions with respect to immigration. President-elect Donald Trump recently announced his bold plan to cancel all federal funding to such localities. Other immigration-focused measures continue to be introduced and discussed in Congress. If passed, what practical impact would H.R. 3009, or similar legislation, have on local immigration enforcement? The bill still has considerable obstacles to overcome. However, enactment of such legislation has the potential to push local enforcement towards cooperation with federal policy.How the E-Government Can Save Money by Building Bridges Across the Digital Divide
As government agencies and federal aid recipients begin to build a presence online, they must recognize that language accessibility is morally required, fiscally responsible, and compulsory under federal civil rights law. This Note explores statutes, federal policies, and case law that purport to protect the rights of limited English proficient (“LEP”) individuals in cyberspace. The Note suggests reforms, policies, and programs that should be adopted by federal aid recipients to ensure that LEP individuals have meaningful access to online services.