The Indian Child Welfare Act survived a closely watched challenge in a lopsided 7-2 vote on Thursday. Gorsuch and Thomas both challenged the court's history — but reached the opposite results.
I have a close friend whose family that was impacted when their mother who was put into a boarding school.
Besides the trauma and abuse suffered at the schools her mother suffered, especially after speaking the language- the same language used by at least one of their grandfathers in the Pacific islands to fight Japan, resulted in her, and then later her children, not being able to speak the language. What a poor reward for their service. I know my friend has spent some time trying to relearn the language, but it is a difficult journey for them. I’m very grateful for this decision, and the people who fought for it. Their have been some surprises from SCOTUS of late(Alabama VRA)
The way the Court deals with the race vs. tribal membership issue is fascinating, and I never know where they’re going to go with it. Adoptive Couple v. Baby Girl made me very worried they were abandoning precedents (like US v. Antelope) that made it very clear that laws regulating Indian affairs were not race-based and thus Equal Protection concerns were largely irrelevant. (I also sort of assumed the ICWA was dead in the water after that case, but I’m glad to have been wrong.) But then some cases since seem to have walked that back, leading to Kavanaugh having to specifically advocate for a race-based understanding of the issue in this case (were it not for the standing issue).
I’m concerned because if SCOTUS goes the Kavanaugh (and Thomas) route and rules that Congress has to treat tribal members the exact same way as members of any other race, that’s pretty much the death knell for the entire idea of tribal sovereignty. You can’t really pass laws protecting the sovereignty of a group of people if you have to treat that group as a racial group rather than a political community.
(And of course, there’s the philosophical question of what sovereignty even means if Congress has to pass laws to ensure tribal sovereignty. Is “sovereignty” that’s given by Congress—and, presumably, can be taken away by it too—really sovereignty in any meaningful sense? This is such a fascinating area of law, made all the more so by just how important it is to so many people’s lives.)
I have a close friend whose family that was impacted when their mother who was put into a boarding school.
Besides the trauma and abuse suffered at the schools her mother suffered, especially after speaking the language- the same language used by at least one of their grandfathers in the Pacific islands to fight Japan, resulted in her, and then later her children, not being able to speak the language. What a poor reward for their service. I know my friend has spent some time trying to relearn the language, but it is a difficult journey for them. I’m very grateful for this decision, and the people who fought for it. Their have been some surprises from SCOTUS of late(Alabama VRA)
This is one of your best decision summaries ever, Chris.
Thanks much!
Really good synthesis and distillation. I appreciated much much. Thank you. And yes, two good ones d SCOTUS decisions, for a change.
2 very good decisions from SCOTUS recently. I hope it
continues.
The way the Court deals with the race vs. tribal membership issue is fascinating, and I never know where they’re going to go with it. Adoptive Couple v. Baby Girl made me very worried they were abandoning precedents (like US v. Antelope) that made it very clear that laws regulating Indian affairs were not race-based and thus Equal Protection concerns were largely irrelevant. (I also sort of assumed the ICWA was dead in the water after that case, but I’m glad to have been wrong.) But then some cases since seem to have walked that back, leading to Kavanaugh having to specifically advocate for a race-based understanding of the issue in this case (were it not for the standing issue).
I’m concerned because if SCOTUS goes the Kavanaugh (and Thomas) route and rules that Congress has to treat tribal members the exact same way as members of any other race, that’s pretty much the death knell for the entire idea of tribal sovereignty. You can’t really pass laws protecting the sovereignty of a group of people if you have to treat that group as a racial group rather than a political community.
(And of course, there’s the philosophical question of what sovereignty even means if Congress has to pass laws to ensure tribal sovereignty. Is “sovereignty” that’s given by Congress—and, presumably, can be taken away by it too—really sovereignty in any meaningful sense? This is such a fascinating area of law, made all the more so by just how important it is to so many people’s lives.)