Law Commons^™

The New Comity Abstention, John Harland Giammatteo

Journal Articles

In the past ten years, lower federal courts have quietly but regularly abstained from hearing federal claims challenging state court procedures, citing concerns of comity and federalism. Federal courts have dismissed a broad range of substantive challenges tasked to them by Congress, including under the Americans with Disabilities Act, the Indian Child Welfare Act, and various constitutional provisions, involving state court eviction proceedings, foster care determinations, bail and criminal justice policies, COVID-era safety practices, and other instances where state courts determine state policy.

This paper is the first to argue that these decisions constitute a new abstention doctrine, unmoored from …

Icwa’S Irony, Marcia A. Yablon-Zug

Faculty Publications

The Indian Child Welfare Act (ICWA) is a federal statute that protects Indian children by keeping them connected to their families and culture. The Act’s provisions include support for family reunification, kinship care preferences, cultural competency considerations and community involvement. These provisions parallel national child welfare policies. Nevertheless, the Act is relentlessly attacked as a law that singles out Indian children for unique and harmful treatment. This is untrue but, ironically, it will be if challenges to the ICWA are successful. To prevent this from occurring, the defense of the Act needs to change. For too long, this defense has …

Icwa International: The Benefits And Dangers Of Enacting Icwa-Type Legislation In Non-U.S. Jurisdictions, Marcia A. Yablon-Zug

Faculty Publications

For decades, the Indian Child Welfare Act (ICWA) has been considered the “gold standard” in Indigenous child protection. As a result, Indigenous advocates around the world have sought the passage of similar legislation. However, it is far from clear that the benefits of the ICWA are easily exported. The ICWA is based on a recognition of tribal sovereignty. Unfortunately, many of the countries that could benefit from ICWA-type protections do not recognize the sovereignty of their Indigenous populations.

This Article explores how the ICWA would have to be adapted to work in such countries and whether the needed changes would …

Fathers And Feminism: The Case Against Genetic Entitlement, Jennifer S. Hendricks

Publications

This Article makes the case against a nascent consensus among feminist and other progressive scholars about men's parental rights. Most progressive proposals to reform parentage law focus on making it easier for men to assert parental rights, especially when they are not married to the mother of the child. These proposals may seek, for example, to require the state to make more extensive efforts to locate biological fathers, to require pregnant women to notify men of their impending paternity, or to require new mothers to give biological fathers access to infants.

These proposals disregard the mother's existing parental rights and …

Adoption Law In The United States: A Pathfinder, Glen-Peter Ahlers Sr.

Faculty Scholarship

No abstract provided.

Where Cultures And Sovereigns Collide: Balancing Federalism, Tribal Self-Determination, And Individual Rights In The Adoption Of Indian Children By Gays And Lesbians, Steve Sanders

Articles by Maurer Faculty

This article analyzes the complex interplay between adoption (traditionally a matter reserved to state family law) and the federal Indian Child Welfare Act in the context of adoptions by gays and lesbians.

As a federal statute that partially preempts state law for the benefit of Native Americans, ICWA implicates three sovereigns: the United States, the state where the adoption petition is brought, and the tribe whose child is the focus of the proceeding. This interplay of sovereigns in itself makes Indian child welfare law complicated and interesting. Beyond these sovereign interests, also to be considered are the interests and rights …

Indian Child Welfare Act: Keeping Families Together And Minimizing Litigation, Sarah Krakoff

Publications

No abstract provided.