Copyright (c) 2009 All rights reserved. http://works.bepress.com/ann_juliano Recent documents in Ann C Juliano en-us Sun, 31 May 2009 03:27:58 PDT 3600 http://works.bepress.com/ann_juliano/7 http://works.bepress.com/ann_juliano/7 Mon, 13 Aug 2007 06:15:51 PDT Ann C. Juliano http://works.bepress.com/ann_juliano/6 http://works.bepress.com/ann_juliano/6 Mon, 13 Aug 2007 06:14:42 PDT Ann C. Juliano http://works.bepress.com/ann_juliano/5 http://works.bepress.com/ann_juliano/5 Mon, 13 Aug 2007 06:13:36 PDT Ann C. Juliano http://works.bepress.com/ann_juliano/4 http://works.bepress.com/ann_juliano/4 Mon, 13 Aug 2007 06:13:02 PDT Ann C. Juliano http://works.bepress.com/ann_juliano/3 http://works.bepress.com/ann_juliano/3 Mon, 13 Aug 2007 06:12:02 PDT Ann C. Juliano http://works.bepress.com/ann_juliano/2 http://works.bepress.com/ann_juliano/2 Mon, 13 Aug 2007 06:06:15 PDT This article addresses an ongoing problem in the area of Indian law. For years, the Native American community has complained of conflicts of interest in the Department of Justice. The conflict within Justice arises from the federal government's special trust relationship with the Indian tribes. The federal government assumed a special trust relationship with the Indian tribes early in the United States' history, that has developed over time through treaties, statutes and case law. The trust relationship represents an affirmative duty on the part of the United States to protect the tribes, serve their best interests and uphold the other trust duties under a standard of good faith. As trustee, the United States, usually acting through the Department of the Interior, manages a significant portion of tribal land and a great deal of tribal resources. The Department of the Interior retains responsibility for many other federal programs and federal lands. The Department of Justice represents Interior and most other federal agencies in court. Thus, Justice must represent both tribal and non-tribal interests, often involving the same land or within the same case. Indeed, Justice must make litigating decisions in these cases with the knowledge that a position in one case may impact another case. A private trustee could not function in the manner that Justice functions. Doing so would violate the duty of undivided loyalty required from a trustee. Justice, however, maintains that the duties of a private trustee do not apply to Justice. In doing so, Justice relies on a Supreme Court case, United States v. Nevada, and a 1979 letter from then Attorney General Griffin Bell. To show the inaccuracies in Justice's position, I examine the underpinnings of Justice's position, beginning with the letter by former Attorney General Griffin Bell and then turning to Nevada v. United States. After also examining the lower courts' interpretation of Nevada, I conclude that Nevada holds simply that when Justice proceeds in the face of congressionally imposed conflicting interests, the doctrine of res judicata still applies to bind the United States and the tribal parties to that litigation. It may seem that Indian tribes could be adequately compensated for conflicts through money damages. However, due to a pair of Supreme Court cases, breach of trust actions based on conflicts of interest are not viable. In this article, I examine and explain how this avenue of redress is effectively closed to tribes. Thus, I argue the solution to the conflict problem must be found earlier in the decisional process. In order to fully protect Native American rights, any successful solution must address the problems created by the Eleventh Amendment and the rules of preclusion. I therefore recommend the creation of a separate litigating agency outside of Justice and Interior and the adoption of special preclusion rules to govern litigation by Justice as trustee. This combination will provide both procedural and substantive protection to the Native American beneficiaries and will allow the United State to fulfill its role as trustee. Ann Carey Juliano Indian Law http://works.bepress.com/ann_juliano/1 http://works.bepress.com/ann_juliano/1 Mon, 13 Aug 2007 06:06:11 PDT After overcoming the obstacles to advancement, women who reach managerial positions are still subject to harassment. At times, this harassment comes from subordinates. The incidence of those employees with "lesser" power harassing those with more power presents a dilemma for traditional thinking on sexual harassment and for the developing judicial doctrine of sexual harassment. It is well-established that Title VII protects employees from discrimination because of sex. Yet, it is unclear whether the statute reaches as far as contra-power harassment. Traditionally, sexual harassment was considered an abuse of power in the workplace. If this is true, how can female supervisors be harassed? Or are they harassed but not within the meaning of employment discrimination law? Is such behavior simply the "price of success"? When women have organizational power, how can they be harassed and why should the law protect them if they do not protect themselves? The answers to these questions necessitate the consideration of differing conceptions of power and the expectations for the exercise of such power. Accepting contra-power harassment as an actionable claim requires courts to conceive of "power" in a different manner than a hierarchical/organizational power. I argue in this article that courts should conceive of power in a socio-cultural manner and accept contra-power harassment claims. A contra-power harassment claim is limited to a hostile environment claim in that subordinates do not have the power to grant or deny tangible employment benefits. Two of the elements of a hostile environment claim require special consideration. First, a plaintiff must prove that the behavior at issue is severe or pervasive so as to affect a term, condition, or privilege of employment. An analysis of the case law shows that courts are downplaying the severity of behavior when the victim of the harassment is a supervisor. I argue that courts should not consider the organizational relationship of the target and the harasser when deciding if the workplace has been rendered hostile. In doing so, the courts are ignoring the importance of social-cultural power which allows lower status men to harass women at work. By exercising their societal power, men are able to harass their supervisors and to change the terms and conditions of women's employment. However, the organizational relationship is important for determining employer liability. The standard to hold the employer liable for harassment by its employees turns on the organizational status of the harasser and the employer's response to the harassment. I argue that a negligence standard is the appropriate standard for contra-power harassment claims. In applying this standard, courts should not presume that women who have risen to the rank of supervisors are incapable of choosing to exercise their power simply by virtue of their status as women. However, courts should not require the supervisor-target to exercise discipline preemptively. In other cases of sexual harassment, a complaint of sexual harassment puts the employer on notice. There is no compelling reason to create a different rule here. Supervisors should be penalized for failing to exercise power only when the employer explicitly authorizes the exercise of such power. Ann C. Juliano Women