Native America's Children
The U.S. Supreme Court has spoken. Read it and weep -- with joy!
This week, the U.S. Supreme Court put to rest the legal challenges to the Indian Child Welfare Act that have been brewing since its passage in 1978. In doing so, the Court answered other breath-takingly sweeping questions about the Constitution and the sovereignty of Indian Nations. It was astonishingly concise (and dare I say conclusive) in affirming the sovereignty of Native Nations, as well as the Indian Commerce Clause meaning and its power used by Congress.
You may want to read my unintended consequences article on the background of this case, that led to this moment before the U.S. Supreme Court. It was gratifying to see Justice Gorsuch recite this history in his concuring opinion, joined by Justice Sotomayor and Justice Jackson. It is important to note that they all also joined in the majority delivered by Justice Barrett. The two dissenting members were Justice Thomas and Justice Alito in separate but similar dissenting opinions.1
The Indian Child Welfare Act (ICWA) at issue, imposed a legal obligation on state courts and litigants where family law matters are decided. That law has worked with states for more than four decades, but in 2019, a white family demanded they should have custody of a Native child, and be-damned any federal law that might hinder them. The states of Texas, Louisiana and Indiana and individuals joined to demand the power to take Native children from the sovereign territory of a Tribal government and conduct adoption proceedings in state court without any legal obligation to contact the Tribal government or families beyond state law. Although not parties, 325 tribal nations, 21 states, and individuals and organizations have signed onto amicus briefs in support of the Indian Child Welfare Act (ICWA).2 The case, Brackeen v. Bernhardt was first heard in 2019 by the U.S. Court of Appeals for the Fifth Circuit 3 and the U.S. Supreme Court accepted the petition for certiorari from both parties, and will hear the case during the October 2022 term.4 They released their opinion on June 15, 2023.
The States wanted the U.S. Supreme court to overturn the part of the 5th Circuit opinion that found ICWA to be constitutional. The Tribes want to keep the statute intact with the same standards that have been working for decades and affirm the government to government relationship between Tribal Nations and the federal government. Turning off this light that was lit by Congress in 1978 , following centuries of darkness, would throw us back into a darker age and make us a lesser Nation. This week, the U.S. Supreme Court in a 7-2 opinion, upheld the constitutionality of the statute, ICWA, and further affirmed the sovereignty of Native Nations with clarity. If I could describe the opinion with sound, I would say it was singing loudly at times, to ensure that petitioners, Texas, Indiana and Louisiana heard it.
The odds were not in Native America’s favor, from an analysis that showed predictions by eminent Federal Indian Law scholars, one that says states would prevail and sovereignty would continue to erode for the foreseeable future.5
Federal courts of appeals hear about 50,000 cases each year, with roughly 10% of those cases resulting in a petition for U.S. Supreme Court review. Of those, only about 100 are heard.6 In 2021, the most recent complete year, there were 125 federal Indian law cases in federal courts, with only 35 reaching federal courts of appeals. The 35 cases in federal courts of appeals were distributed with 14 in the Ninth Circuit, five in the Tenth Circuit, five in the D.C. Circuit, four in the Eighth Circuit, two in the Sixth Circuit, two in the Second Circuit, two in the First Circuit, and one in the Fifth Circuit. 7 This case arose from a decision in the U.S. Court of Appeals, Fifth Circuit.
Examples of some of the opinion points:
To stay in court without dismissal from the start, the party has to show they have standing in the court to bring the case. Texas made the argument they had standing on the equal protection issue, and the court begins by describing their argument as an “unclean hands” injury which tells you where the court is going with it:
“It leads with what one might call an “unclean hands” injury: ICWA “injures Texas by requiring it to break its promise to its citizens that it will be colorblind in child-custody proceedings.” (the opinion, p. 33)
With regard to the petitioner’s argument that Congress exceeded its authority:
It was hard to miss the dismissive turn of phrase: “Or so the argument goes,” (the opinion, p. 14) when the court restated the petitioner’s argument.
The majority made clear that family law was not exempt from federal regulation, even if it was in conflict with state law:
“Petitioners are trying to turn a general observation (that Congress’s Article I powers rarely touch state family law) into a constitutional carveout (that family law is wholly exempt from federal regulation). That argument is a nonstarter. As James Madison said to Members of the First Congress, when the Constitution conferred a power on Congress, “they might exercise it, although it should interfere with the laws, or even the Constitution of the States.” 2 Annals of Cong. 1897 (1791). Family law is no exception. (p. 15)
The Court takes just a few words to dispose of the petitioner’s argument that Congress did not have the power to pass ICWA using the Indian Commerce Clause:
“Take the Indian Commerce Clause, which is petitioners’ primary focus. According to petitioners, the Clause authorizes Congress to legislate only with respect to Indian tribes as government entities, not Indians as individuals. Brief for Individual Petitioners 47–50. But we held more than a century ago that “commerce with the Indian tribes, means commerce with the individuals composing those tribes.” (p. 15).
With regard to the petitioner’s anti-commandeering argument:
“Petitioners’ argument has a fundamental flaw: To succeed, they must show that §1912(d)[ICWA] harnesses a State’s legislative or executive authority.” (the opinion p. 19)
The use of the idiom, here was especially clear where the Majority stood:
“When a federal statute applies on its face to both private and state actors, a commandeering argument is a heavy lift—and petitioners have not pulled it off.” (the opinion, p. 22)
Gorsuch, concurrence on plenary power gave new definition to the term “plenary power” and sent a clear message to states:
“Building on that move, the Court would later come to describe the federal power over the Tribes as “plenary.” See, e.g., Winton v. Amos, 255 U. S. 373, 391 (1921); Lone Wolf v. Hitchcock, 187 U. S. 553, 565 (1903). Perhaps the Court meant well. Surely many of its so called “plenary power” cases reached results explainable under a proper reading of the Constitution’s enumerated powers. Maybe the turn of phrase even made some sense: Congress’s power with regard to the Tribes is “plenary” in that it leaves no room for State involvement.”
The two dissenting opinions held as their central issue that this was a case about family law, accessorizing with cherry-picked Federal Indian law quotes, which in a sense was odd coming from originalists who seem to be blocking out the entire history of Federal Indian law in their premise.
These are my cursory comments, from my early read of the opinion — it was issued in the morning of Thursday, June 15, 2023. Indian Country was exuberate coming from being hunkered down expecting the worst. The President issued a press release expressing the Administration’s approval of the opinion. NCAI and NARF delivered the good news across America to Indian Country.
The opinion reads like an entire semester of Federal Indian law, citing dozens of landmark cases in this single opinion. The Gorsuch concurence is an insightful and knowledgable journey through the terrible history that brought us to the need to have a statute like ICWA.
History has taught Indian Country not to get too comfortable or happy with the last decision because the next one could be deplorable. As Justice Thomas once said, “Federal Indian law is schizophrenic”.
But for now, we should all take a historic moment to celebrate this victory.
You can find the opinion here on the US Supreme Court’s website: https://www.supremecourt.gov/opinions/22pdf/21-376_7l48.pdf
BARRETT, J., delivered the opinion of the Court, in which ROBERTS, C. J., and SOTOMAYOR, KAGAN, GORSUCH, KAVANAUGH, and JACKSON, JJ., joined. GORSUCH, J., filed a concurring opinion, in which SOTOMAYOR and JACKSON, JJ., joined as to Parts I and III. KAVANAUGH, J., filed a concurring opinion. THOMAS, J., and ALITO, J., filed dissenting opinions. (This is the end of Court’s syllabus).
https://www.narf.org/cases/brackeen-v-bernhardt/
https://www.narf.org/nill/documents/20190809brackeen-icwa-opinion.pdf
David Getches, Beyond Indian Law (2019) “documents the Rehnquist Court’s shift away from jurisprudence that permitted a sovereign people to control their own territory, and the people within it . . .” https://www.cambridge.org/core/books/abs/reading-american-indian-law/beyond-indian-law-the-rehnquist-courts-pursuit-of-states-rights-colorblind-justice-and-mainstream-values/A969E7A465361064AA4A07F200A67F20
https://www.uscourts.gov/statistics-reports/appellate-courts-and-cases-journalists-guide
National Indian Law Library, NATIVE AMERICAN RIGHTS FUND, https://narf.org/nill/bulletins/federal/2021.html (last visited Sept. 9, 2022).
Love your comment about the dissenting argument, "...was odd coming from originalists who seem to be blocking out the entire history of Federal Indian law in their premise". That says a lot! Thanks for the link to the entire decision.