Indian Child Welfare Act Upheld

June 15, 2023 8:26 AM

Supreme Court delivers win for Native American tribes in adoption case (NBC News, CNN, NPR, WaPo).

"By ruling on the side of children’s health and safety, the U.S. constitution, and centuries of precedent, the justices have landed on the right side of history," the leaders of four tribes involved in the case, Cherokee Nation, Morongo Band of Mission Indians, Oneida Nation, and Quinault Indian Nation, said in a joint statement.

Justice Barrett wrote the 7-2 opinion, and Justices Alito and Thomas dissented.

And, because every Supreme Court post should have a Supremes song, here's 'A Place in the Sun.'

posted by box (30 comments total)

What a relief!

Between this and the unexpected win against gerrymandering, which justice got visited by three ghosts this week?
posted by The demon that lives in the air at 8:32 AM on June 15, 2023 [19 favorites]

I see Alito and Thomas are again writing dissents that they are going to quote in future opinions as somehow proof of their new more assholeish opinion.
posted by hippybear at 8:39 AM on June 15, 2023 [9 favorites]

FWIW, Gorsuch for all of the terribleness typically sides strongly with Native American rights.
posted by mcstayinskool at 8:45 AM on June 15, 2023 [12 favorites]

...while Alito and Thomas typically side with being unequivocal assholes
posted by mcstayinskool at 8:46 AM on June 15, 2023 [16 favorites]

Probably so they can allow Christian adoption agencies to ban gays.
posted by Happy Monkey at 9:09 AM on June 15, 2023 [1 favorite]

It’s important to keep in mind that Thomas and Alito are working to eliminate all government oversight on, well, everything. So, yeah, it figures they’d both vote to strike down the law.

Still...unmitigated flaming assholes, both of ‘em.
posted by Thorzdad at 9:13 AM on June 15, 2023

Previously on Mefi
posted by praemunire at 9:14 AM on June 15, 2023 [5 favorites]

Oh thank goodness (or the Ghost of Future Something. If haunting is what it takes, I'll take it.)
posted by EvaDestruction at 9:19 AM on June 15, 2023

Thomas and Alito are working to eliminate all government oversight on, well, everything.

Including Supreme Court justices.
posted by ZenMasterThis at 9:21 AM on June 15, 2023 [9 favorites]

Between this and the unexpected win against gerrymandering, which justice got visited by three ghosts this week?

I can’t help but feel like we’re being set-up for some major “fuck you”s yet to come. There’s an affirmative action case yet to drop. There’s also an LGBTQ ruling to come. And the “Independent State Legislature” case which, hoo boy, is gonna fuck-up everything if ruled the way the far-right wants it to be.
posted by Thorzdad at 9:21 AM on June 15, 2023 [6 favorites]

Just reading the article, it appears that this was kicked based on standing (i.e. this is a state matter, not a federal one) more than anything, while holding that Congress does have the authority to legislate on family law but, again, saying that this isn't an issue for SCOTUS. So, good individual outcome here, but in that light, the split isn't quite as surprising. That Barrett, Gorsuch and Kavanaugh would decide that keeping as much stuff in the hands of the states was more important than chipping away at affirmative action directly (with Kavanaugh's concurrence still staking a claim that it's important that they do so) feels pretty par-for-the-course, really.

But YAY! for the win for tribal rights here! Here's hoping the states don't immediately take this as a cue to nullify those rights themselves.
posted by Navelgazer at 9:38 AM on June 15, 2023 [1 favorite]

this was kicked based on standing (i.e. this is a state matter, not a federal one)

That would be jurisdiction, not standing (and the constitutionality of a federal law is always going to be a federal matter). However, in most cases it is safe to say that a ruling finding no standing is a conservative one. Just based on the syllabus, we seem to be seeing some further constriction of standing fueled by the realization that that blue states got very active and creative in bringing cases against the federal government in the prior administration, as there remain some muddy patches of standing doctrine when it comes to the states as parties (it was Texas that got kicked). Because it rejected several anti-commandeering arguments, sounds like this was a mixed bag when it comes to federalism.
posted by praemunire at 9:48 AM on June 15, 2023 [1 favorite]

Was just out driving and listening to NPR, and the first part of a show was about this. The guest was really sharp. Looks like it's not available online but will be posted, so if you're interested, check the show link later today.
posted by martin q blank at 10:19 AM on June 15, 2023

The sigh of relief I let out woke the dogs.
posted by lepus at 10:20 AM on June 15, 2023 [2 favorites]

The challengers are led by Chad and Jennifer Brackeen — a white evangelical Christian couple who sought to adopt a Native American boy

It seems obviously like the right outcome. But I'm always curious what it is about Christian obsession with adoption — often of minorities. Is it about spreading the faith, to assimilate non-white people or those who typically do not come from Christian backgrounds? Did this family think it was their right to get whatever they want in pursuit of that goal? I feel like this part has been left out of the media coverage and it might help to understand what was ultimately motivating the suit.
posted by They sucked his brains out! at 10:24 AM on June 15, 2023 [2 favorites]

You have it essentially right. They're more subtle about the rhetoric these days, but there's a chunk of Christianity that never gave up trying to "convert the savages."
posted by The demon that lives in the air at 10:32 AM on June 15, 2023 [8 favorites]

Brains, the earlier Mefi post links to a much more in-depth look at the Brackeens.
posted by praemunire at 10:37 AM on June 15, 2023

Thanks, reading now!
posted by They sucked his brains out! at 10:41 AM on June 15, 2023

>which justice got visited by three ghosts this week?

I believe it's Kavanaugh, perhaps now that Budweiser is woke it's affected him.
posted by numaner at 10:48 AM on June 15, 2023 [1 favorite]

but there's a chunk of Christianity that never gave up trying to "convert the savages."

Evangelism is just cultural genocide with a different name tag.
posted by FatherDagon at 11:17 AM on June 15, 2023 [9 favorites]

For those interested in learning more, there is an excellent podcast episode from Code Switch on this topic that nightlights how this case was a threat to Native American sovereignty
posted by emd3737 at 11:37 AM on June 15, 2023 [1 favorite]

It's important to keep in mind that — regardless of personal or religious motivations of those hoping to adopt — the reason that powerful groups like the Kochs got behind this case was because they want to undermine and ultimately eliminate Native American tribes as sovereign entities.
posted by theory at 11:53 AM on June 15, 2023 [7 favorites]

The Code Switch episode emd3737 linked does a good overview of theory's point, for folks who want to know more. (And here's a link to the transcript of it.)
posted by EvaDestruction at 12:03 PM on June 15, 2023 [3 favorites]

>which justice got visited by three ghosts this week?
I believe it's Kavanaugh

Slate:
Justice Brett Kavanaugh joined the opinion in full, but warned that he felt “the equal protection issue is serious” because ICWA discriminated on the basis “of the child’s race.” That is incorrect. The Supreme Court has long held that tribal membership or eligibility is a political classification subject to relaxed scrutiny under the Constitution. This view aligns with that of the framers—who, after all, classified Native people on the basis of their “Indian” identity in the Constitution.
posted by CheeseDigestsAll at 12:52 PM on June 15, 2023 [5 favorites]

My feeling for a while has been that the best remaining outcome for the US is going to be that...some states are relatively well governed and at least don't get any worse racially, and others revert to openly racist legislation and encourage more and more violence in daily life. The other option is that the fascists win at the federal level and the whole country goes openly racist, trans people are driven from public life, violence intensifies everywhere, women's healthcare is functionally abolished, etc.

It is so dark that we are reduced to thinking "which far right principle will the Supreme Court determine that it is more important to uphold - destruction of tribal sovereignty or strengthening of states rights?"

~~
That said, thank god the fucking child thieves got one in the eye.
posted by Frowner at 1:03 PM on June 15, 2023 [4 favorites]

Was just out driving and listening to NPR, and the first part of a show was about this. The guest was really sharp. Looks like it's not available online but will be posted, so if you're interested, check the show link later today.

That's Rebecca Nagle, a member of the Cherokee Nation and the host/producer of the This Land podcast. She's been reporting on ICWA for something like 10 years, and she's terrific.
posted by Frayed Knot at 1:14 PM on June 15, 2023 [9 favorites]

Oh and the Code Switch episode referenced above is also Rebecca.
posted by Frayed Knot at 1:16 PM on June 15, 2023 [5 favorites]

Thomas and Alito are working to eliminate all government oversight on, well, everything.

Including Supreme Court justices.

And abortion.
posted by Melismata at 2:15 PM on June 15, 2023 [1 favorite]

Thomas and Alito are working to eliminate all government oversight on, well, everything.

Including Supreme Court justices.

Then maybe now is the time to get cases in front of SCOTUS regarding the existence of the Bureau of Indian Affairs.
posted by pwnguin at 2:56 PM on June 15, 2023

Gorsuch was also the lone dissent in an 8-1 decision in Lac du Flambeau Band of Lake Superior Chippewa Indians v. Coughlin on Thursday, holding that Native American tribes are not immune from the automatic stay of the bankruptcy code; i.e. the court held that creditors owned by tribes are required to follow the same bankruptcy process as other creditors.

Elie Mystal for The Nation on Neil Gorsuch's defense of Native American tribes and why that defense will never extend to other minorities:

Gorsuch says that the bankruptcy code specifically pierces the sovereign immunity of “foreign” governments and “domestic” governments, but that tribal governments are neither. He writes: “Instead, the Constitution’s text—and two centuries of history and precedent—establish that Tribes enjoy a unique status in our law.”

For Gorsuch, in other words, Tribal nations are uniquely protected by a constitutional promise (often ignored) that they will be left alone. That makes them different from, say, the French, to whom the Constitution promises no special recognition. And it certainly makes them different from Black people, who have no government apart from the one organized by our white oppressors. Indeed, even if Black people did organize some kind of distinct and sovereign political entity (I nominate Michelle Obama as our interim queen), it would not be one recognized by the Constitution, what with the Constitution being a 250-year-old enslaver’s manual, and backward time travel not being allowed by the laws of physics.

posted by the primroses were over at 4:13 PM on June 16, 2023