 Last summer, the Department of the Army, which controls the site of the former Carlisle Indian Industrial School in Pennsylvania, said it “stands ready” to assist any tribe or family member who wishes to disinter their relatives and bring them home from the cemetery there.
In 1879, what was then the Carlisle Barracks became the site of the nation’s first Indian boarding school, which was operated by the Department of the Interior until 1918. During those 39 years, it forcibly assimilated 7,800 Native American children from more than 140 tribal nations through a mix of Western-style education and hard labor. At least 194 children from 59 different tribes died there, of disease often made worse by poor living conditions and abuse, and were buried at the school. Exhumations from the Carlisle Barracks Post Cemetery began in 2017, when Yufna Soldier Wolf of the Northern Arapaho Tribe won her 10-year battle to return three Arapaho children. They were reburied on the reservation in Ethete, Wyoming. The Army has since returned a total of 28 children in five disinterment projects. Each project was conducted for about a month during the summer. A team of professionals from the Army Corps of Engineers’ Center of Expertise for Curation arrives to carry out the process of exhuming and identifying each child’s remains. The team consists of 13 people: three tribal liaisons, who oversee family coordination, tribal consultation, and travel logistics; three specialists from the Office of Army Cemeteries, who oversee the site layout, manage all the equipment, and ensure security and privacy; three forensic archaeologists, who exhume the remains; and four biological anthropologists, who conduct forensic analyses on the remains to ensure they match their description. The Army spent over $600,000 in each of the past two summers — 2021 and 2022 — to return seven to ten children, according to spokesperson John Harlow. However, at least 171 children are still buried at the Carlisle Barracks, according to records kept by the Carlisle Indian School Digital Research Center, run by Dickinson College in Carlisle, Pennsylvania. Fourteen of those children are under headstones marked “unknown.” Based on the Army's current projections and the pace of disinterment, it will take 17 years and about $10.2 million to return each child from the Carlisle cemetery, if every child is claimed. To help elucidate the process, Native News Online spoke with a few relatives who have successfully brought their ancestors home from Carlisle, plus a spokesperson from the Army. Step 1: Locating your relative According to Renea Yates, director of the Office of Army Cemeteries, the Army notified all 574 federally recognized tribes that it had Native children buried in its cemetery back in 2016, and will do so again this fall. The Carlisle Indian School Digital Resource Center has been digitizing Bureau of Indian Affairs documents kept on the school and its students for eight years. As a result, anybody can search through detailed student records, which include their age, tribal affiliation, family background, admission and discharge dates, school activities, health reports, and even sometimes school newspaper clippings. For those unsure of whether they have tribal relatives buried at Carlisle, there is also digitized cemetery information that includes the deceased’s dates, plot location, and primary documents on the death and burial of a student. In 2021, Lauren Peters (Agdaagux Tribe) successfully brought her great-aunt, Sophia Tetoff, home to Saint Paul Island in Alaska. She told Native News Online that the Digital Resource Center was a critical resource for gathering the information she needed. She recommends asking archivists there for help navigating that information. “If you contact Dickinson [the Digital Resource Center] directly, they're very open about leading you through the database, and how to find all the different pieces of information,” Peters said. She warns that name misspellings and incorrect tribal affiliations listed in the documents could have derailed Sophia’s return. Sophia, who was about 17 years old when she died in 1906, was a member of the Unangax Nation, but her student card garbled that, listing her as part of the “Aleut” tribe. “So if I had visited the cemetery, I might not have put those two things together,” Peters said.Step 2: Initiating paperwork The Army has made clear that it does not believe it is compelled to repatriate human remains under the Native American Graves Protection and Repatriation Act (NAGPRA), because the Carlisle Barracks Post Cemetery does not constitute a “collection.” Many tribal Nations and Native attorneys dispute that. Instead of following NAGPRA, the Army follows its own rule for exhuming Native American remains: Army Regulation 290-5, which requires that a lineal descendant make the request for disinterment. “Under Army policy, and because we have the custody of the remains, we have to allow the family to be the one that notifies us,” Renea Yates said during a press conference last year. “Tribal requests cannot be made. It has to be the individual closest family member.” How to find the closest living relative In several instances, tribal historic preservation officers have been able to locate the closest living descendant through their surnames, research provided from the Digital Resource Center, and consulting with tribal elders. For a few disinternments during the summer of 2022, the Army contacted the Alutiiq Museum in Kodiak, Alaska. The museum took on the role of locating the next of kin for three Alaska Native girls. Relatives of Anastasia Ashouwak, who went home in July, used Ancestry.com to prove their lineal relation to her. “The most significant question to answer and/or research is the family tree and who is the ‘senior’ living descendent that is able to take responsibility for claiming the remains,” Lara Ashouwak, whose husband, Ted, is related to Anastasia, told Native News Online in an email. “We were lucky because I had worked on Ted's genealogy and already knew the answers re: who was who, our relationship to Anastasia, and the line of seniority.” What happens if you can’t find a closest living relative? This is where the process can get a bit tricky. One girl buried at Carlisle was unable to be returned home in 2022 because the museum responsible for initiating the returns couldn’t locate a living descendant. In such instances, the Army requests that a tribal official contact them directly. “The Army recognizes that almost none of the Native children buried at CBPC [Carlisle Barracks Post Cemetery] had detailed parent information listed on the school burial records,” spokesperson John Harlow told Native News Online. “The closest living relatives of the deceased may only be distantly related. We understand that Native American Traditional Knowledge may likely be the basis to determine who is the closest living relative.” What to do once you’ve found the closest living relative Tribes who have found the closest living relative can request disinterment by submitting two documents to the Office of Army Cemeteries. One is a notarized affidavit by the closest living relative of the decedent, requesting the disinterment and including the reason for it. The other is a notarized sworn statement by a person who knows that the person who supplied the first affidavit is the closest living relative. Requests should be emailed to: usarmy.pentagon.hqda-anmc.mbx.accountabilitycoe@army.mil. Yufna Soldier Wolf, the Northern Arapaho tribal member who was the first to return her relatives from Carlisle, created a 23-page document summarizing the Carlisle disinterment process as a tool for other tribal nations. She recommends getting your paperwork in early. “Plan to get it in before Christmas,” Peters echoed. “And if you can't, lower your expectation that this is going to happen in six months.” Planning for the next year’s disinterment project begins around the 4th of July, as soon as the current year’s project is complete, Harlow said. “The detailed planning, preparation and funding is completed by 15 January of each year in order to publish the list of children for disinterment in the Federal Register and properly plan for the families to travel to Carlisle for the next planned disinterment,” he added. Step 3: The Return Once the Army receives and approves your paperwork, they will put you in touch with someone to coordinate logistics, Lauren Peters said. She said it connected her with a tribal liaison, and led her through an orientation over Zoom prior to her trip to Pennsylvania. It included details on what the disinterment will look like, how the transfer will be set up, what your privacy will be like. Family members can choose which cultural protocols for the ceremony they want, and who will be allowed to come in and out of a secure tent during the ceremony. The Army reimburses the cost of travel and expenses associated with the exhumation and burial, but only for two people. Peters recommends getting clear assurances ahead of time about what costs will be reimbursed. It cost $18,000 for her and her son to travel to Carlisle, plus a second leg for her and an additional son to go to St. Paul’s Island in Alaska. The Army reimbursed her for $12,000, she said, and she got the balance covered through a grant from her university. Funding is “a tough one,” Peters said. “Know that you might have to do some fundraising. I think if your expectation is that [the Army is] gonna take care of everything—and I think we all feel that they should, for as many people that need to go out there and witness it—[you’ll see] that’s the difference between being a tribal government and the U.S. government.” Soldier Wolf recommends that family members ask the Army ahead of time for a printed packet of information and guidelines, so they can know what to expect. She also recommends having someone knowledgeable in archaeology and anthropology to walk the tribe through the process on the ground. “If the tribe repatriating doesn’t agree or want things done differently, they have the person who can help them understand and communicate to the Army how the tribe wants it and then move forward,” she wrote. Peters said that the team working to disinter Sophia was exceptionally respectful, and didn’t make a single decision without first consulting with her. “Any time there was the slightest question, they stopped everything and they came to me and my son, and they asked: How do you want to do this?” she said. “Sometimes there was a delay while I called up to St. Paul, and that was totally fine with them.” What surprised Peters most about her trip was how she felt once the process was set in motion. “All the right things were set up, but still I didn't anticipate the panic attack I had on the airplane on the way there,” she said. She recommends preparing a support system for yourself while you’re in Carlisle, spending time in nature, and possibly planning to speak to a talk therapist or a spiritual leader once the process is completed. Step 4: The Reburial Each tribe that has completed disinternments from Carlisle navigated their reburial process differently, but many tribal nations organized large gatherings for their ancestors’ reburial on their homelands. Some family members, including Lauren Peters and Lara Ashouwak, have sought permission from the bishop of the Orthodox Church in Alaska to have the church participate in their ancestors' welcome home and reburial. Soldier Wolf recommends that, no matter how you and your tribe decide to handle reburial, make sure you have a plan in place for how to address the media. “Our tribe has a media policy and procedure they follow along with our elders’ tribal protocol for do’s and don’ts for the media,” Soldier Wolf wrote. “Without any of this guidance, it would have been a lot of stress for me to deal with, as I had all types of famous and local news agencies calling for stories and interviews.” She recommends implementing a media plan to determine who will speak; following a process or assigning a person to respond to media requests; ensuring that elders and descendants are okay with the plan, and reassuring them you are doing this for their privacy; and making consistent responses to the media. Editor's Note: This story has been updated to reflect the correct age of Sophia Tetoff, who was about 17 years old when she died in 1906, as well as the number of children whose remains has been returned and the timing of the Army's outreach to federally recognized tribes about the Native children buried in its cemetery.
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Indonesia New Law Bans Sex Outside Marriage, Protesting and Criticizing the President and Ideology1/11/2023  Indonesia's parliament on Tuesday banned sex outside marriage with a punishment of up to one year in jail, despite worries the laws may scare away tourists from its shores and harm investment.
Lawmakers approved a new criminal code which will apply to Indonesians and foreigners alike and also prohibit cohabitation between unmarried couples. It will also ban insulting the president or state institutions, spreading views counter to the state ideology, and staging protests without notification. The laws were passed with support from all political parties. However, the code will not come into effect for three years to allow for implementing regulations to be drafted. Currently, Indonesia bans adultery but not premarital sex. Maulana Yusran, deputy chief of Indonesia's tourism industry board, said the new code was "totally counter-productive" at a time when the economy and tourism were starting to recover from the pandemic. "We deeply regret the government have closed their eyes. We have already expressed our concern to the ministry of tourism about how harmful this law is," he said. Foreign arrivals in the holiday destination of Bali are expected to reach pre-pandemic levels of six million by 2025, the tourism association has said previously, as the island recovers from the impacts of COVID-19. Indonesia is also trying to attract more so-called "digital nomads" to its tropical shores by offering a more flexible visa. Speaking at an investment summit, U.S. Ambassador to Indonesia Sung Kim said the news could result in less foreign investment, tourism and travel to the Southeast Asian nation. "Criminalising the personal decisions of individuals would loom large within the decision matrix of many companies determining whether to invest in Indonesia," he said. U.S. State Department spokesperson Ned Price told a news briefing in Washington the United States was assessing the contents of the law and noted that the implementing regulations had not yet been drafted. "But we are concerned regarding how these changes could impact the exercise of human rights and fundamental freedoms in Indonesia. We're also concerned about how the law could impact ... U.S. citizens visiting and living in Indonesia as well as the investment climate for U.S. companies," he said. "Indonesia is a valued democratic partner of the United States; we seek to work together with Indonesia to counter hatred and intolerance," he added. Albert Aries, a spokesperson for Indonesia's justice ministry, said the new laws regulating morality were limited by who could report them, such as a parent, spouse or child of suspected offenders. "The aim is to protect the institution of marriage and Indonesian values, while at the same time being able to protect the privacy of the community and also negate the rights of the public or other third parties to report this matter or 'playing judge' on behalf of morality," he said. These laws are part of a raft of legal changes that critics say undermine civil liberties in the world's third-largest democracy. Other laws include bans on black magic. 'A DEATH FOR INDONESIA'S DEMOCRACY' Editorials in national newspapers decried the new laws, with daily newspaper Koran Tempo saying the code has "authoritarian" tones, while the Jakarta Post said it had "grave concerns" about their application. Decades in the making, legislators hailed the passage of the criminal code as much needed overhaul of a colonial vestige. "The old code belongs to Dutch heritage ... and is no longer relevant now," Bambang Wuryanto, head of the parliamentary commission in charge of revising the code told lawmakers. Opponents of the bill have highlighted articles they say will curb free speech and represent a "huge setback" in ensuring the retention of democratic freedoms after the fall of authoritarian leader Suharto in 1998. "This is not only a setback but a death for Indonesia's democracy," said Citra Referandum, a lawyer from Indonesia’s Legal Aid Institute. "The process has not been democratic at all." Responding to the criticism, Indonesia's Law and Human Rights Minister Yasonna Laoly told parliament: "It's not easy for a multicultural and multi-ethnic country to make a criminal code that can accommodate all interests." Legal experts say that an article in the code on customary law could reinforce discriminatory and sharia-inspired bylaws at a local level, and pose a particular threat to LGBT people. "Regulations that are not in accordance with human rights principles will occur in conservative areas," said Bivitri Susanti, from the Indonesia Jentera School of Law, referring to existing bylaws in some regions that impose curfews on women, or target what are described as "deviant" sexualities. The new laws will also include more lenient sentences for those charged with corruption. The morality charges have been partially watered down from an earlier version of the bill so that they can only reported by limited parties, such as a spouse, parent or child. The government had planned to pass a revision of the country's colonial-era criminal code in 2019 but nationwide protests halted its passage. Lawmakers have since diluted down some of the provisions with President Joko Widodo urging parliament to pass the bill this year, before the country's political climate heats up ahead of the presidential elections scheduled for early 2024. The public response to the new code has been muted so far, with only small protests held in the capital on Monday on Tuesday.  Discipline in New York’s prison system has only gotten more unequal. New York’s Inspector General Lucy Lang confirmed a significant racial disparity exists between the discipline of white incarcerated people and Black and Hispanic incarcerated people in New York’s prison system within the New York State Department of Corrections and Community Supervision (DOCCS) in a report released last month. Following the publication of a 2016 New York Times article that described serious racial bias in a review of nearly 600,000 disciplinary records, then-governor Andrew Cuomo mandated the New York State Inspector General “investigate the allegations of racial disparities in discipline in State prisons.” According to the report, over six years, a Black incarcerated person was almost 22 percent more likely to be administered a misbehavior report than a white incarcerated individual. Additionally, a Hispanic incarcerated person was 12 percent more likely to be given a misbehavior report than a white incarcerated individual. Investigators found that regardless of disparities, over half of incarcerated individuals — 56 percent — were issued a misbehavior report between 2015 and 2020. And disparities have not improved during the six year span data was analyzed. By 2020, on average, white incarcerated individuals recieved more than 57 percent fewer reports than people of other races, a 27 percent increase in the racial disparity of reports issued compared to 2017. Report Recommendations The Inspector General’s office issued seven key recommendations to the Department of Corrections and Community Supervision:
Ultimately, despite efforts to track the issue and take action to improve disparities, Lang wrote, the report’s analysis revealed that “since 2018, racial disparities have increased, with particularly significant increases occurring in 2020.” Racial disparity trend analysis in this kind of data can be difficult, a reality the Inspector General acknowledges in her report, along with the disruptions of the COVID-19 pandemic. “But these factors do not absolve DOCCS of its duty to uncover and address any racial bias in its incarcerated individual disciplinary system,” Lang wrote. “In order to meet the Department’s mission to improve public safety we strive to ensure that we operate a fair system in all aspects, from program and work assignments to the disciplinary process,” the Department of Corrections and Community Supervision wrote in part of its response to the Inspector General’s investigation and recommendations. The full IG report titled Racial Disparities in the Administration of Discipline in New York State Prisons was published in November 2022 and can be read here.  A U.S. Army lieutenant who was pepper sprayed, struck and handcuffed by police in rural Virginia, but never arrested, will argue to a jury that he was assaulted and falsely imprisoned and that his vehicle was illegally searched. Video of the 2020 traffic stop got millions of views the next year after Caron Nazario filed the federal lawsuit that is now being heard, highlighting fears of mistreatment among Black drivers and intensifying the scrutiny of the boundaries of reasonable, and legal, police conduct. The episode also served as a grim signal to many Black Americans that military uniforms don’t necessarily protect against abuse of authority by law enforcement. The trial is scheduled to begin Monday in federal court in Richmond. Video shows Windsor police officers Daniel Crocker and Joe Gutierrez pointing handguns at a uniformed Nazario behind the wheel of his Chevy Tahoe at a gas station. The officers repeatedly commanded Nazario to exit his SUV, with Gutierrez warning at one point that Nazario was “fixing to ride the lightning” when he didn’t get out. Nazario held his hands in the air outside the driver’s side window and continually asked why he was being stopped.  Nazario also said: “I’m honestly afraid to get out.”
“You should be,” Gutierrez responded. Nazario stayed in the vehicle. Gutierrez went on to pepper spray him through the open window. Once Nazario exited the SUV, the officers commanded him to get on the ground, with Gutierrez using his knees to strike Nazario’s legs, the lawsuit states. Since the traffic stop, Nazario has developed anxiety, depression and PTSD, according to his lawsuit. He has been unable to leave home at times due to “hypervigilance regarding the potential for harassment by law enforcement,” court filings state. A psychologist found that Nazario, who is Black and Latino, suffers from race-based trauma associated with violent police encounters, which can exacerbate injuries “in ways that do not commonly affect the white populations.” “The officers involved not only assaulted Mr. Nazario, but pointed their weapons directly at him and, at some point during the encounter, threatened to kill him,” the suit alleges. “Mr. Nazario recalls that he thought he was going to die that evening.”  In Denver, Colorado, a grand jury indicted a police officer with the Denver Police for an officer-involved shooting in July that injured six bystanders, Janet Oravetz reports for 9News. The indictment, made public Wednesday, includes eight counts of assault, one count of prohibited use of a weapon and five counts of reckless endangerment. It alleges that Brandon Ramos fired toward an armed suspect both with the knowledge that a crowd of people were standing behind him and without a “clear backdrop” to justify firing his weapon.
The grand jury heard testimony from 17 witnesses and reviewed 140 exhibits related to the case before charging the officer. In contrast to Ramos, two other officers who discharged their weapons during the incident are described as having “reasonably believed” their lives and the lives of others were in danger when they fired their guns. “While the situation remains an unfortunate one, and it’s regrettable that innocent bystanders were injured, I’m surprised to see that the grand jury found the officer’s actions involved criminal intent,” Denver Mayor Michael Hancock said.  “State police terminate another officer for response to Uvalde mass shooting” was first published by The Texas Tribune, a nonprofit, nonpartisan media organization that informs Texans — and engages with them — about public policy, politics, government and statewide issues.
The Texas Department of Public Safety has decided to terminate a Texas Ranger who responded to the horrific May 24 attack at Robb Elementary School in Uvalde. In a letter Thursday, DPS Director Steve McCraw told Texas Ranger Christopher Ryan Kindell that his actions following the shooting that killed 19 students and two teachers “did not conform to department standards.” Kindell has five days to appeal the decision. “You should have recognized the incident was and remained an active shooter situation which demanded an active shooter response rather than a barricaded subject situation,” McCraw wrote in the letter obtained by The Texas Tribune. Reached for comment Friday, Kindell would say only that he intends to appeal his firing. Kindell’s September suspension caused ripple effects through the criminal justice system in South and West Texas where he was the lead investigator on 50 high-profile investigations, including murders, sexual assaults and public corruption. But police experts and the Uvalde County district attorney had raised questions about whether DPS was retroactively punishing a handful of officers for not following policies that weren’t in place at the time of the shooting. Among their concerns: By firing a few officers, DPS and other law enforcement agencies will avoid serious analysis of how hundreds of police from multiple agencies stood by for more than 70 minutes while children and teachers lay shot in a fourth grade classroom. In response to a request under the Texas Public Information Act, DPS said it does not have a written active-shooter policy. Instead, the agency said at the time of the Uvalde shooting that DPS relied on guidance from the Advanced Law Enforcement Rapid Response Training Center at Texas State University. Known as the ALERRT doctrine, it’s considered the premier active-shooter training program in the state. In July, McCraw sent an agencywide memo telling DPS officers the agency “will continue to embrace the ALERRT doctrine, but with one important addition.” “DPS Officers responding to an active shooter at a school will be authorized to overcome any delay to neutralizing an attacker,” McCraw wrote. “When a subject fires a weapon at a school he remains an active shooter until he is neutralized and is not to be treated as a ‘barricaded subject.’ We will provide proper training and guidelines for recognizing and overcoming poor command decisions at an active shooter scene.” McCraw and DPS spokesman Travis Considine would not comment on Friday. In October, McCraw decided to terminate Juan Maldonado, a DPS sergeant who’d also responded to Robb Elementary on May 24. Maldonado opted to retire rather than appeal his firing. Jesse Rizo, the uncle of 9-year-old Jackie Cazares, one of the students who was killed at Robb Elementary, had criticized McCraw for taking so long to hold officers accountable. On Friday, Rizo said Kindell’s firing “sends a strong message.” Kindell had been in charge of investigating major crimes in Uvalde and Real counties. In rural regions with smaller police departments, Texas Rangers act as lead detectives on nearly every high-profile case. After his suspension in September, Uvalde County District Attorney Christina Mitchell dismissed charges against two sexual assault defendants Kindell had investigated and agreed to a six-year plea deal to a juvenile capital murder defendant. “I am concerned,” Mitchell said in an interview last month. “I’ve got some other cases that if his situation does not get resolved soon, they may be dismissed.” In his letter, McCraw told Kindell that “as a Texas Ranger, you are expected to overcome conflicting information and to accurately assess the tactical situation.” Kindell was one of 91 DPS officers at the scene. Also on the scene were 149 U.S. Border Patrol officers, 25 Uvalde police officers and 16 sheriff’s deputies. “You took no steps to influence the law enforcement response toward an active shooter posture,” McCraw continued. “This constitutes a failure to perform your duty competently.”  Los Angeles cannabis regulators have urged a California federal judge to reject a Michigan man's effort to halt the city's upcoming lottery for marijuana retail licenses, saying the challenger and his company met none of the criteria to justify such an order.
Specifically, Los Angeles said that Michigander Kenneth Gay and his company Variscite Inc. were unlikely to succeed on the merits, couldn't show how letting the lottery proceed would irreparably harm them, and sought an order that would hinder the public interest. The plaintiffs "are unlikely to suffer irreparable harm because they are pursuing a commercial cannabis license for the purpose of earning a profit, which can be addressed through monetary damages," the city wrote in a Friday opposition filing. Gay said in his Nov. 30 complaint that the methods used by Los Angeles' Department of Cannabis Regulation to reward storefront retail licenses to social equity applicants violate the dormant commerce clause, a constitutional doctrine that bars policies which favor in-state residents. He sought a temporary restraining order halting a lottery which is scheduled for Dec. 8. But the city said Friday that the dormant commerce clause had not been shown to apply to cannabis regulations in the Ninth Circuit, where California is, and said that the doctrine applies to federally regulated interstate markets — which necessarily excludes cannabis, a federally illegal substance. "The general public would not benefit from an injunction because the primary purpose of the Dormant Commerce Clause does not apply to federally illegal cannabis markets," the city wrote. Los Angeles told the court that the balance of equities tipped heavily against granting Gay a temporary restraining order because it would effectively harm the other 508 license applicants who are in the running for the lottery. "Plaintiffs have known of the Verification Criteria for months or potentially years, and yet waited until the last possible minute before the … lottery to file suit and request this [temporary restraining order]," the city said in its filing. "Their inexplicable delay militates heavily against the issuance of a[n order]." The city also argued that Gay did not have standing to challenge the city's social equity program since he failed to produce documentation that would qualify him for the lottery. Gay previously brought a similar lawsuit in New York federal court, saying the state cannabis regulator's plan for doling out the first round of retail licenses was a dormant commerce clause violation since it was designed to award licenses to those with a New York cannabis conviction or close family members of someone with such a conviction. As a result of the legal challenge, a New York federal judge in November agreed to block Empire State cannabis regulators from issuing the first marijuana retail licenses for five geographic regions across the state. In the Los Angeles dispute, the city said if the court does grant an injunction, it should be narrowly tailored to force Gay's inclusion in the lottery — rather than shutting down the lottery for the hundreds of other applicants. Gay also has a similar lawsuit pending against cannabis regulators in Sacramento, California, which is headed for an appeal in the Ninth Circuit. Gay and Variscite are represented by Christian Kernkamp of Kernkamp Law APC. The Los Angeles parties are represented by Patrick Hagan, Taylor C. Wagniere and Kabir Chopra of the city attorney's office. The case is Variscite Inc. et al. v. City of Los Angeles et al., case no. 2:22-cv-08685, in the U.S. District Court for the Central District of California.  The U.S. Food and Drug Administration's food program has no clear leader and must act more boldly with its budget, data sharing, and use of its mandatory recall authority, according to a report that the agency commissioned following the infant formula shortage earlier this year. The Reagan-Udall Foundation's evaluation of the agency's Human Food Program, which was released Monday, described a lack of leadership resulting in part from a lack of clarity as to the roles of the program's Office of Food Policy and Response and the Center for Food Safety and Applied Nutrition. "There is no clear Human Foods Program leader or decision-maker, outside of the [FDA] commissioner," the report says. "Although the missions of CFSAN and OFPR have differences on paper, staff are often left wondering which program is responsible for decision-making. … A governance board was established in 2014 (and updated in 2019) to address this need for coordinated decision-making," the report continued. "However, this concept has not effectively addressed the structural challenges." FDA Commissioner Robert Califf announced in July that the agency was retaining the Reagan-Udall Foundation, a nonprofit organization created by Congress to aid the FDA's mission to assess the food office, in addition to the Office of Regulatory Affairs. The FDA's handling of an Abbott plant under investigation for bacterial contamination linked to a national shortage of infant formula drew sharp rebukes from lawmakers during a May hearing. The lawmakers said it was "unconscionable" that it took the agency months to inspect the plant despite an October 2021 whistleblower report about its conditions. The FDA started investigating the key facility on Feb. 17, following reports of infant illnesses after consuming the formula. While the country's food supply is safe, Califf said in July, the FDA's food program has been stressed by increasingly diverse and complex supply chain and food issues. Monday's report came in response to this concern. Califf announced Monday that he would be making a decision as to the future of the Human Food Program after consulting stakeholders and forming a group of agency leaders to help him figure out how to "implement and operationalize" the report's findings. "I expect this leadership group to be bold and focused on the transformative opportunities ahead for the FDA's food program — by fully realizing the preventive vision laid out in the Food Safety Modernization Act, elevating the importance of nutrition given declining life expectancy in the U.S., due in large part to chronic diseases, strengthening our state partnerships, and embracing innovative food and agricultural technologies," he said. Monday's report included several areas in which the program should act more boldly in exercising its authority. "FDA should use its mandatory recall authority more frequently, recognizing that a process should be in place to assure that accommodations are made for life-sustaining products that are the only source of nutrition for certain populations (e.g., infant formula)," the report said. It also said the program should strengthen its implementation and use of its authority to collect user fees. It also needs to act more boldly with nutritional labeling and data sharing, the report said. "In addition to seeking new authority regarding data sharing and records access, FDA should explore applying existing authority that infant formula manufacturers must retain microbiological testing records — and that those records 'shall be made available ... for review and duplication upon request' by FDA — to require real time disclosure of final product testing results from infant formula manufacturers," the report said.  President Joe Biden on Friday signed into law a bipartisan bill to expand researchers' access to marijuana in order to study its potential medical benefits, representing the first stand-alone federal cannabis reform measure to become law in more than 50 years. The legislation — the Medical Marijuana and Cannabidiol Research Expansion Act, or H.R. 8454 — was approved by the Senate on a voice vote in November following its passage in the House of Representatives on a 325-95 vote in July. Members of the Congressional Cannabis Caucus celebrated the signing, saying in a joint statement that the legislation's approval "marks a monumental step in remedying our federal cannabis laws." The statement, signed by Reps. Earl Blumenauer, D-Ore., Barbara Lee, D-Calif., Dave Joyce, R-Ohio, and Brian Mast, R-Fla., continued: "We celebrate the enactment of this critical and long-overdue legislation, and we know there is much more to do to remedy the ongoing harms of the failed war on drugs. Our caucus will continue working to reimagine the federal government's approach to cannabis and enact further reforms." The bill has the backing of advocates on both sides of the legalization question. Its passage was cheered by anti-legalization advocacy group Smart Approaches to Marijuana, or SAM, which said the bill marked a sensible step toward improving cannabis research without changing marijuana's status as a federally controlled substance. "SAM has always encouraged research on marijuana and has said for years that if marijuana is being presented as medicine, it should be treated as such and researched as such," Kevin Sabet, president and CEO of SAM, said in a statement. "We encourage component treatments that are [Drug Enforcement Administration]-approved, prescribed by a physician, and dispensed by a pharmacy. Bills like this one are key for advancing a solid, science-based research agenda." The bill has also garnered praise from legalization advocacy group NORML, although the group criticized the omission of language in the bill that would allow researchers to do studies on cannabis currently being sold in state-legal markets. The bill's passage through Congress came approximately a month after Biden announced sweeping changes to federal cannabis policy, saying he would pardon all federal offenders convicted of simple marijuana possession, and direct health and law enforcement officials to review the drug's federal Schedule I status. The announcement marked the biggest shift in federal cannabis policy since states began legalizing marijuana for medicinal or adult recreational use about 25 years ago. It also represents a step toward the fulfillment of pledges Biden made on the presidential campaign trail to decriminalize marijuana at the federal level and release prisoners convicted of breaking certain federal cannabis laws. The proposal seeks to “clarify” the range of damages available to plaintiffs in federal civil suits that claim emotional harm under federal civil rights laws.  Democratic U.S. senators on Friday announced new legislation that they say will plug a discrimination-claims-sized damages hole punched in civil rights claims by the U.S. Supreme Court earlier this year. The Clarifying Civil Right Remedies Act of 2022, carried by Illinois Sen. Dick Durbin and Sen. Patty Murray, D-Washington, seeks to “clarify” the range of damages available to plaintiffs in federal civil suits that claim emotional harm under federal civil rights laws such as the Civil Rights Act. Such awards were curbed by the high court, the senators said, in Cummings v. Premier Rehab Keller. “Our antidiscrimination laws exist to protect against discrimination and ensure that when discrimination does occur, those who suffer it can seek the justice they deserve in court,” Murray said in a statement announcing the bill after calling the Cummings ruling an unfair limitation on victims. “Our legislation will right this wrong, protect people’s dignity, and ensure that anyone who experiences humiliation, frustration, and emotional distress because of discrimination they faced at the doctor’s office, in the classroom, and in so many other settings can seek justice in our courts,” she added. In Cummings, Chief Justice John Roberts Jr. found deaf woman Jane Cummings could not hold a federally funded rehabilitation center responsible for emotional damages after it failed to accommodate her disability. Instead, he said such claims relied on spending clause legislation that has traditionally been analogous to contract disputes and don’t allow for such an “exceptional” remedy. “Emotional distress damages are not ‘traditionally available in suits for breach of contract,’” the justice wrote in an April opinion. “There is correspondingly no ground, under the court’s cases, to conclude that federal funding recipients have ‘clear notice,’ … that they would face such a remedy in private actions brought to enforce the statutes here.” The decision relied heavily on Barnes v. Gorman, which denied damages to a paraplegic man after a jury awarded him damages for an Americans with Disabilities Act claim. “Title VI mentions no remedies; and punitive damages are generally not available for breach of contract,” Justice Antonin Scalia wrote, rolling back the award, in the 2001 opinion. The Cummings decision was condemned by the Connecticut Law Tribune Editorial Board shortly after it was handed down. “The aftermath of Cummings is not difficult to predict,” the board wrote in an op-ed titled “US Supreme Court Marks 50th Anniversary of Title IX by Gutting It.” “Without the promise of monetary recovery, fewer plaintiffs will have cause to stand up, and fewer lawyers will be able to take their cases,” they wrote. “And without those private attorneys, general educational institutions will have less incentive to promote sex equality.” Kaufman Dolowich & Voluck partner Iram Valentin also wrote for the New Jersey Law Journal on the opinion’s impact, noting that the bar on damages for emotional distress was limited to spending clause anti-discrimination statutes, but did not affect federal anti-discrimination statutes that were not promulgated pursuant to spending clause legislation, such as Title VII of the Civil Rights Act of 1964, or state or local anti-discrimination laws. “Despite the tug of war on the high court, it is clear that the conservative majority will continue to construe the available remedies narrowly and strictly in private suits commenced to enforce provisions under Spending Clause legislation,” Valentin, co-chair of Kaufman Dolowich’s Professional Liability Practice Group, wrote. "Practically, Cummings and its rationale may considerably impact remedies in suits arising in the educational context, such as in universities and public school districts, and in the health-care sector, such as in hospitals and rehabilitation facilities.” It’s been months since Cummings, and Valentin, after reviewing Durbin and Murray’s legislative effort, is skeptical it’ll survive judicial scrutiny. He believes that the apples and oranges nature of mixing the concepts of compensatory and consequential damages will lead to further litigation. “Senate Democrats want to nullify the Supreme Court’s decision because they disagree with the conservative majority’s narrow interpretation of the remedies available under spending clause legislation, viewing it as a step on a slippery slope; however, rather than ending the debate, they may be fueling it,” he said in an interview Friday. |
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January 2023
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