October 23, 2020

Native Nations & Rural America: An Unlikely Partnership?

(Source) Introduction In the wake of McGirt v. Oklahoma, Tribes across America celebrate the Supreme Court’s reaffirmation of tribal sovereignty and self-governance. In the landmark case, the Court held that the Muscogee Creek reservation had not been disestablished and that criminal jurisdiction remained with the Tribe and the federal government – not the state. This cause for celebration brings with it new economic pressures for Oklahoma Tribes. With criminal jurisdiction, a Tribe must have adequate infrastructure including courts, jails, employees for both, and additional resources related to criminal justice systems. The Court’s decision restored criminal jurisdiction to the Tribe for much of Eastern Oklahoma. The reservation spans over three million acres, and includes the state’s second largest city, Tulsa. Although criminal jurisdiction is limited by the Major Crimes Act, nearly 300,000 Native Americans live within the reservation. Cases involving Native American perpetrators of a crime on the reservation are now directed to the Tribe’s one district court, Okmulgee, where the court and the tribal services are located, is a forty-five minute drive from Tulsa, and an even further drive for individuals from towns at the edge of the reservation.  For successful application, the McGirt ruling demands funding and infrastructure that [read more]
October 19, 2020

Setting the Course for the Supreme Court: What to Do About the Court’s Politicization

(Source) Justice Ruth Bader Ginsburg, a liberal icon, died on September 18, 2020, and the Supreme Court holds the national spotlight as Trump and the Senate prepare to appoint conservative Amy Coney Barrett to the Court. The public reacted immediately and intensely to Republicans’ decision to push a nominee through the Senate weeks before the election. Some lambasted Trump’s decision as “cynical and insulting to the millions of women who view the late Supreme Court justice as a feminist icon,” while some praised the decision as a “powerful, positive statement.” Much of this rhetoric around the current nomination process reveals, and exacerbates, intense partisan conflict. So, how did we arrive at such a polarized and politicized nomination process for the Supreme Court? Perhaps the Supreme Court never was the independent and high-minded institution we have imagined it was in the past. Rachel Shelden, a history professor at Penn State, points out that “[n]ineteeth-century Americans. . . understood that the Supreme Court would be [partisan],” and that “partisan fidelity — not legal ability — was the primary consideration in presidents’ Supreme Court appointments.” For instance, when John Adams lost to Thomas Jefferson in the 1800 presidential election, he politicized the court [read more]
October 16, 2020

It’s Time to Break Up Big Tech

(Source)   Introduction Amazon obtained a place in the popular psyche that has far surpassed its principal market function as an online retailer and entertainment provider. The conventional wisdom was that Amazon operated much like the major industrial powerhouses at the turn of the last century—standard oil, railroads, and steel—and thus warranted the same basic sort of legal treatment that its ancestor monopolies received. Perhaps the laws would have to be updated somewhat, but the idea was that Amazon had justly achieved its privileged position in society through free and fair competition in the marketplace. Jeff Bezos was predestined to be next in the line of a venerable lineage of American entrepreneurs whose spiritedness and ingenuity entitled them the rarefied perches they occupy in public life. In short, Bezos’s outsized influence in society today, a consequence of his unprecedented wealth (now upwards of two hundred billion dollars), has enabled him to lobby lawmakers for exceptionally lenient policies—skirting oversight of his company’s adverse working conditions and slyly evading a number of pesky environmental issues—for a handsome return payment deposited in the coffers of both Democratic and Republican lawmakers.  From one point of view, to deny Bezos of his wealth and fame [read more]
October 12, 2020

Neither Snow nor Rain, but Political Interference: Voter Suppression and the USPS

(Source)   In a year of unprecedented events, among the most unexpected is Trump’s ongoing attempt to erode public faith in the United States Postal Service (“USPS”) and its ability to ensure a free and fair election through mail-in ballots. How exactly did we get here?   Money Talks Congressional Republicans passed the Postal Accountability Enhancement Act (“PAEA”) in 2006 to reform USPS operations after its business model was deemed no longer viable, but PAEA’s passage was perceived as hostile to the USPS’ efforts to stay in business. PAEA, among other things, set up a pre-funding requirement that the USPS make annual payments, which amounted to between $5.4 to $5.8 billion a year, into a retirement healthcare benefits fund through 2016 to cover its obligations to current and retired employees; the USPS defaulted on these payments beginning in 2012. However, this was only one strain on the USPS’s finances. Another is the long-running decline in first-class mail volume since 2001. After 2006, the USPS went into debt and stayed in the red for 13 consecutive years. In February, the House passed the USPS Fairness Act with some bipartisan support to alleviate needless burdens on the USPS by undoing the prefunding [read more]
October 9, 2020

Chasin’ Carry: Assessing the IRS’ § 1061 Proposed Regulations

(Source)   The world of private equity is fascinating. Larger-than-life firms pool immense amounts of capital from individual and institutional investors. Firms organize these pools into funds, secure leverage, and begin investing in, restructuring, and ultimately selling for profit, a variety of assets, like distressed businesses and real estate. In theory, numerous parties stand to share in the spoils. Should they successfully argue their case before the fund, asset owners can raise capital without navigating the burdensome processes of debt financing or issuing public shares. Moreover, the owners and their assets also benefit from the knowledge and management expertise accompanying the private capital. Of course, the fund’s investors stand to gain substantial returns on their investments. And the spoils are plenty: according to Bain and Company’s 2020 Global Private Equity Report, in 2019 total buyout value was $551 billion and total exit value amounted to $405 billion. What do the fund managers gain from all of this? In return for their services, fund managers are assigned interests in the investments’ ultimate profits. These interests are termed “carried interests,” or, more colloquially, “carry.” (The term stems from the practices of medieval merchants in Europe who were issued interests in the profits [read more]
September 18, 2020

Sunshine Is Still the Best Disinfectant: How the Cornell First Amendment Clinic and the New York Times Fought to Access COVID-19 Demographic Data

(Source) As the coronavirus pandemic began to sweep through the United States in the spring of 2020, outbreaks in cities with significant Black and Latino communities led some to question whether communities of color might be at a heightened risk of both infection and death from COVID-19. As the Congressional Black Caucus (CBC) stated in its April 2020 letter to the Director of the Centers for Disease Control and Prevention (CDC), Dr. Robert M. Redfield, “[c]ommunities of color continue to disproportionately suffer health inequities due to the history of racism and oppression in the United States,” making these communities particularly vulnerable to COVID-19. At the time, state public health departments had begun releasing data confirming these suspicions. Data from Wisconsin, for example, showed that in Milwaukee County, African Americans accounted for almost half of the county’s coronavirus cases and 81% of deaths, despite making up only 26% of the county’s population. This data provided only a partial picture of the outbreak, however, and critics argued that relying on states to release demographic data and the lack of publicly available national demographic data would continue to hamper efforts to develop a robust public health response in low-income communities and communities of [read more]
September 4, 2020

Denying Indigenous Sovereignty: The Execution of Lezmond Mitchell

(Source) On August 26th, 2020, the United States government executed Lezmond Mitchell, the only Native American on federal death row, continuing the Trump administration’s aggressive reinstatement of federal executions after a seventeen-year delay. Mr. Mitchell was pronounced dead at 6:29 PM. Mr. Mitchell’s execution was the 1523rd execution in the United States since the death penalty was reinstated in 1976 and the fourth federal execution in 2020. Two days later, the federal government executed Keith Nelson, who was pronounced dead on August 28th at 4:32 PM. With the federal death toll at five people, the federal government has carried out more executions in the past two months than in the preceding fifty-seven years. They plan to carry out two more by the end of September.  There are many problems with the way the federal government has been going about killing the people on its death row, and Mr. Mitchell’s case is no exception: as with the other people whom the federal government has executed, the global pandemic is still raging, and several of the victims’ loved ones opposed Mr. Mitchell’s death sentence. Further, there were real concerns about Mr. Mitchell’s culpability compared to that of his co-defendant, who did not [read more]
August 24, 2020

The Public Charge and the Pandemic: What Happens When the Dust Settles?

(Source) On July 29th, the Southern District of New York (“Southern District”) enjoined the Department of Homeland Security (“DHS”) from enforcing, applying, or implementing the Trump Administration’s new public charge rule from taking effect during the COVID-19 national health emergency. Responding to the injunction, the U.S. Citizenship and Immigration Services (“USCIS”) stated that the 1999 public charge guidance will control the admissibility of immigrants on public charge grounds until the national health emergency ends. The concept of the public charge has been a part of the American immigration system since the late 1800s. It takes its origins from “poor laws,” which were designed to exclude foreign immigrants who would require public assistance. The modern understanding of what constitutes a public charge was formalized in 1999 to include immigrants who are “primarily dependent on the government for subsistence, as demonstrated by either the receipt of public cash assistance for income maintenance, or institutionalization for long-term care at government expense.” Traditionally, this meant that immigrants could not take advantage of monetizable programs, such as welfare. However, in 2019 the Trump Administration revised the public charge rule and expanded the rule’s impact by barring programs permitted by the 1999 guidance. This lowered the [read more]
August 21, 2020

Legalize and Regulate: The Solution to the Unsolvable Drug Problem

(Source)   Legalizing recreational drug use, which is not morally wrong since its use does not directly harm anyone but the user, will benefit society as a whole by allowing for safer participation, less incarceration, and increased economic contributions through taxes. Since the passage of the 21st Amendment in 1933, which ended the nation’s prohibition on alcohol, the consumption of alcohol has been embraced by society overall. The government legalized alcohol and society widely accepted and consumed it, despite its proven immediate and long-term dangers. Thus, given its approach to alcohol use, the government should permit its constituents to decide what substances they put in their bodies.  Realistically, people will use drugs if they want to use drugs. I am not advocating for an entirely hands-off approach; rather, I argue that broadly legalizing drugs will allow lawmakers to hone in on the aspects of drug use that have raised concern for decades. Part 1: Legalization and Regulation Legal access to drugs does not necessarily equate to increased use and instead creates an opportunity for better oversight. Thus, legalizing all drugs will allow the government to regulate these substances more effectively by crafting targeted legislation, made in conjunction with scientific research, to [read more]
August 17, 2020

From Smallpox Blankets to COVID Ballots: Understanding the Pandemic as a Fundamental Threat to Native American Voters

(Source) Introduction At 5 million positive cases, COVID-19 continues to devastate people across the United States. Due to pre-existing social inequalities, communities of color remain the hardest hit. Among these communities, Native Americans are contracting and dying from the virus at unmatched rates. Federal, state, and local action to mitigate the spread throughout Indian Country has been slow and fallen short of expectations. For example, when the Seattle Indian Health Board expressed an urgent need for testing and medical supplies, the local King County Public Health Department’s shocking response was to send body bags and toe tags. Horrifying? Yes. Far from sensible? Not if you look at death rates for states with sizable tribal communities. Consider the case of New Mexico. While Native Americans make up 10% of the state’s population, as of May, tribal members make up 50% of local COVID-related deaths. As the country prepares for the November presidential election, all eyes should be on the federal government and the steps, or lack thereof, that the Trump administration has taken to ensure a healthy and safe election season. Historical Suppression & Contemporary Barriers Native American voters have long been disenfranchised and excluded from local, state, and federal elections. [read more]
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