TEXAS JOURNAL ON CIVIL LIBERTIES & CIVIL RIGHTS
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CURRENT LOCATION: TJCLCR | Archives | VOLUME 8, ISSUE 1 (Spring, 2003)

 

Volume 8, Number 1, Spring 2003

ARTICLES


The Dialogic of Federalism in Federal Indian Law and the Rehnquist Court: The Need for Coherence and Integration, 1
Alex Tallchief Skibine

The failure of the Rehnquist Court to recognize Indian nations as the “third sovereign” in the federal equation has eroded the power of Indian tribes. Though the “new federalism” advocated by the Court should have led to positive results for Indian tribes in cases involving tribal sovereignty, the Court has failed to integrate its federalism and associational rights jurisprudence into its treatment of federal Indian law.

Part I of the article explores the Court’s failure to view Indian tribes as a political institution operating within the American political system. Rather than clinging to the paternalistic and inherently racist “trust relationship” forged in colonial times between Indian tribes and the federal government, the Court should view the tribes as a distinct third sovereign in the political system.

Part II explores the impact of Court decisions that have been detrimental to tribal interests. The Court’s merging of tribal and federal interests stems from its concern with the perceived inadequacies of Congress and Indian tribes to protect the rights of nontribal members subject to tribal court jurisdiction.

Part III expands on the Court’s willingness to see tribes as a part of the federal government. The Court has readily curbed congressional power pursuant to the interstate commerce power in cases like Lopez and Morrison, but refuses to limit congressional power over Indian affairs. The tension between classifying the tribes as a racial or political group is solved by recognizing the tribes as domestic dependant nations—as sovereigns in their own right.

To further the rights of tribal self-government, the author suggests deriving those rights not from political efforts to effect major legislative change, but instead from looking to the structure of the Constitution, which recognizes the Indian tribes as domestic dependant nations. The article also suggests reconnecting the Court’s Indian jurisprudence with the rest of its federalist legacy by claiming the right of tribal selfgovernment as a first amendment associational right.


 

A Moving Violation? Hypercriminalized Spaces and Fortuitous Presence in Drug Free School Zones, 51
L. Buckner Inniss

In "A Moving Violation? Hypercriminalized Spaces and Fortuitous Presence in Drug Free Zones", L. Buckner Inniss examines in detail drug-free school zones as hypercriminalized spaces, including the zones’ creation and challenges to the zones’ validity and enforceability. Specifically, Inniss evaluates Equal Protection and Due Process claims arising from hypercriminalized school zones, as well as mens rea and Eighth Amendment challenges to their legitimacy. Inniss also considers the “deperimeterizing” effect of drug-free zone statutes by arguing that criminalization of drug use and possession within an area around school buses and property creates a floating, hypercriminalized zone.

Arguing that many people cannot be deterred within these moving zones, Inniss concludes that the deperimeterization of such zones nullifies any potential deterrence.

NOTES

Providing Students with Protection They Deserve: Amending the Office of Civil Rights’ Guidance or Title IX to Protect Students from Peer Sexual Harassment in Schools, 91
Julie A. Klusas

In her Note, "Providing Students with the Protection They Deserve: Amending the Office of Civil Rights’ Guidance or Title IX to Protect Students from Peer Sexual Harassment in Schools", Julie A. Klusas evaluates different standards by which schools must protect students from sexual harassment. Klusas argues that these standards are often so confusing that schools frequently vacillate between not providing enough protection for victimized students and over-punishing offenders for seemingly innocuous crimes.

Instead, Klusas advocates a single standard by which schools should be judged, in both administrative and judicial proceedings, in their treatment of sexual harassment issues. Such a single standard could come to fruition, it is argued, by either amending the
Revised Office of Civil Rights’ Guidance from administrative relief to an actual notice standard or, alternatively, revising Title IX to allow for money damages under the constructive notice standard.


 

The Civil Rights of “Others”: Anti-terrorism, The Patriot Act, and Arab and South Asian American Rights in Post-9/11 American Society, 117
Vijay Sekhon

In his note, "The Civil Rights of “Others”: Antiterrorism, The Patriot Act, and Arab and South Asian American Rights in Post-9/11 American Society", Vijay Sekhon discusses the long-term legal and social ramifications of the Patriot Act in post-9/11 American society, focusing specifically on the Act’s discriminatory effects on Arab and South Asian Americans. Sekhon explores the constitutional and civil liberties that have been threatened as a result of the passage and implementation of the Act. He goes on to
propose social science race theory and critical race studies as an answer to why these liberties were allowed to be undermined, stating that Arab and South Asian Americans were and are not perceived in the United States as true “Americans” but instead as
“others.”