Shifting Foundation: The Problem with Inconsistent Implementation of Federal Recognition Regulations

Lorinda Riley

The establishment of federal recognition is the cornerstone of federal Indian law. All rights, including criminal jurisdiction, tax status, gaming rights, and hunting and fishing rights, stem from this initial acknowledgment. Yet prior law review articles have focused only on the overarching process of federal recognition without closely examining the actual administrative findings of the Department of the Interior.

This article will provide an in-depth examination of the regulations governing whether an Indian entity is entitled to the benefits of a government-to-government relationship with the United States. Specifically, this article examines the regulatory process for filing a federal recognition petition and critiques four of the criteria that petitioning Indian entities consistently fail to meet. By reviewing Department of the Interior decisions, this article demonstrates the inconsistencies in regulatory interpretations and guidance documents as well as the inherent biases in the current regulatory framework.
Finally, the article discusses potential solutions to these problems and identifies the first step necessary in order to fully understand the depth of this regulatory issue.

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Playing Devil’s Advocate: The Constitutional Implications of Requiring Advocacy Organizations to Present Opposing Viewpoints

Alex Reed

Credit: sabihclicks. Creative Commons License.

For more than sixty years, the Internal Revenue Service has employed a methodology test in determining whether a nonprofit organization’s advocacy of a particular viewpoint is sufficiently educational to warrant its designation as a public charity. The test’s focus is not upon the viewpoint advocated, but upon the method used by the organization to communicate its viewpoint to others. Consistent with this purpose, the Service has identified four factors that are indicative of a noneducational methodology.

The Service’s application of the test, however, suggests the existence of an additional, previously undisclosed factor. This factor regards a refusal to present opposing viewpoints as indicative of a noneducational methodology.

This article concludes that the methodology test is unconstitutional for three reasons. First, the test is void for vagueness because it does not disclose one of the factors considered by the Service in evaluating whether an advocacy organization may be said to employ an educational methodology. Second, the test violates the compelled speech doctrine by requiring advocacy organizations to accommodate the very speech they are organized to oppose. Third, the test imposes an unconstitutional condition by conditioning advocacy organizations’ eligibility to receive tax-deductible contributions on the absolute forfeiture of
their First Amendment rights.

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By the Courts, for the Bar: Judicial Exemption of Lawyers from the Scope of Consumer Protection Laws

Chris Fox-Lent

The highest courts in a number of states have invoked the principle of separation of powers in order to insulate lawyers from liability under consumer protection laws. The courts have held that regulation of the bar is a judicial
function and cannot be exercised by the legislature through consumer protection statutes prohibiting deceptive trade practices (often called Deceptive Trade Practices Acts, or DTPAs). This article exposes a number of problems with these state court decisions. First, courts rely on the assumption that these DTPAs “regulate” lawyers in a way that treads on the judicial branch’s authority. An explicit justification of this assumption would have broader consequences. Second, courts fail to ask whether judicial regulation of lawyers fares any better under separation of powers analysis than legislative regulation of lawyers. A
systemic bias of judges in favor of lawyers is at work in these opinions, which courts should counteract by giving deference to the constitutional and statutory interpretations of other branches. Courts should increase deference to legislatures by abandoning the “clear statement rule” that reads lawyers out of DTPAs as written. Finally, courts should seriously consider the statutory interpretation undertaken by state attorneys general, both because these officers are often charged with enforcing DTPAs and because they are the most obvious officials to look to for the executive branch’s interpretation of a statutory provision.

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Using Storytelling to Achieve a Better Sequel to Foster Care than Delinquency

Lisa Beth Greenfield Pearl

Credit: Street Photography by Tomasz Kulbowski. Creative Commons License.

California’s child welfare system is failing its mandate to serve its neediest children. A significant portion of the 60,000 foster children that California cares for are dually involved with the dependency and delinquency systems. Children who have suffered abuse or neglect severe enough to be removed from their homes are more likely than well-treated children to come into contact with the delinquency system and possibly lose their dependency status in favor of delinquency status. For the young person for whom the state has taken on the parenting role under the dependency system, the blow of delinquency status is significant because of the resulting loss of the “parent” and the concordant services and rights that the “parent” has afforded. This article advocates that we use applied legal storytelling principles to direct more attention to the foster child’s character, voice, and viewpoint to allow formal, earlier intervention at the phase where the child is at risk of delinquent behavior so that delinquency has a better chance at being avoided. By invoking applied legal storytelling concepts to focus child welfare advocates on children’s unique narratives, this article suggests that we consider a new framework to help solve the present foster care-to-delinquency cycle to better serve foster young people and their communities.

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