@ Indian Child Welfare Act in SCOTUS

[NewOrleans]

Texas is literally arguing that the ICWA is unconstitutional because it violates state rights and its intention is to prevent Native children from being raised under “white middle-class standards.” 

In case you’re wondering how it’s going for Native people, Alito asked in court how come a Native child should be placed in the home of a person from a different tribe (one of the ICWA options) because tribes were at war with each other all the time and geography makes them different.  

www.thenation.com/article/society/icwa-supreme-court-libretti-custody-case/tnamp/

www.washingtonpost.com/politics/2022/11/09/tribal-adopt-supreme-court-foster-care/

[seeyalater52]

The adoptive parents in this case are absolutely horrifying. The entire concept of the arguments in this case are just beyond offensive even absent the truly heinous comments from Alito during oral arguments.

[penguingrrl]

I’m so disgusted this is being questioned. And angry. So much harm was done in removing children from their families to decimate their culture and community, and this finally helped with that.

[AJL]

May I recommend This Land podcast. It goes into detail about ICWA and this case.

[NewOrleans]

Nov 27, 2022 21:47:36 GMT -5 AJL said:

May I recommend This Land podcast. It goes into detail about ICWA and this case.

I listened to it a few years ago.  Have they been updating since this case has been in court?

[mrsukyankee]

I can't even appropriately write the words for how I'm feeling about all of this. Horrified is probably the most polite.

[leviosa]

This entire situation is appalling.

In one situation it wasn’t just ICWA. Those foster parents were keeping the child from family. Even without ICWA those family members would have been prioritized over foster parents in my state. Children do better if they can be safely placed with family. And if they can’t, they do better with placements who understand the importance of culture and community. As an example, we would try to place a Jewish child with a Jewish foster family to help preserve their community and culture.

If SCOTUS agrees with the families in this case we’re going to run into a wall of lawsuits regarding all sorts of placement choices.

[AJL]

Nov 28, 2022 7:06:23 GMT -5 NewOrleans said:

Nov 27, 2022 21:47:36 GMT -5 AJL said:

May I recommend This Land podcast. It goes into detail about ICWA and this case.

I listened to it a few years ago.  Have they been updating since this case has been in court?

Yes

[redheadbaker]

Nov 27, 2022 17:34:11 GMT -5 seeyalater52 said:

The adoptive parents in this case are absolutely horrifying. The entire concept of the arguments in this case are just beyond offensive even absent the truly heinous comments from Alito during oral arguments.

How do they even have standing, if their argument is that their race prevented them from adopting Baby O -- but they did eventually adopt her? 

[discogranny]

My husband is an active member of a large, federally recognized tribe based in OK. We live in TX and this case has been keeping him up at night for a long time as it is essentially a thinly-veiled attack on tribal sovereignty with children being used as political pawns. The tribe has staff devoted to encouraging and getting licensed tribal homes for foster care, they do amazing work in attempting to reunite families while keeping culture alive. My husband's grandmother, great-aunts and uncles were all placed in "Indian Welfare Schools" when they were children, so the idea of another yet another avenue for the degradation of culture and sovereignty being reopened scares him as it's a slippery slope back to the abuse his family suffered and continues to address through generational trauma.

[Deleted]

The really interesting part that many of these white adoptive parents, and their lawyers, fail to understand is that tribal membership isn’t a racial designation, so it’s not an issue of “racial inequality.” Many white people are trying to make it about race, when the tribes are insisting that it isn’t.

[sarahsays]

My sister is a kinship adoption that likely would not have happened without ICWA and my graduate work was on native identity and the laws around what makes someone Indian, so I am heavily invested in the outcome of this case and it's impact on other laws.

[shauni27]

I have been following this and it makes me irate. And I am terrified because this Scotus is the fucking worst.

[NewOrleans]

Nov 28, 2022 16:39:57 GMT -5 @villainv said:

The really interesting part that many of these white adoptive parents, and their lawyers, fail to understand is that tribal membership isn’t a racial designation, so it’s not an issue of “racial inequality.” Many white people are trying to make it about race, when the tribes are insisting that it isn’t.

To further your point 

There was an argument to the effect of, “Those aren’t tribal citizens, so therefore this must be based on race.” But that makes no sense to me. Whether someone is an enrolled citizen depends on tribal law, and the tribes don’t necessarily make you a citizen automatically. There are many tribes that require some process to be enrolled, and the Indian Child Welfare Act was meant to cover those children as well as the ones that are automatically citizens upon their birth. The eligibility for citizenship means that it is a political classification, not a racial one.

hls.harvard.edu/today/supreme-court-preview-brackeen-v-haaland/

[NewOrleans]

Nov 28, 2022 12:22:24 GMT -5 discogranny said:

My husband is an active member of a large, federally recognized tribe based in OK. We live in TX and this case has been keeping him up at night for a long time as it is essentially a thinly-veiled attack on tribal sovereignty with children being used as political pawns. The tribe has staff devoted to encouraging and getting licensed tribal homes for foster care, they do amazing work in attempting to reunite families while keeping culture alive. My husband's grandmother, great-aunts and uncles were all placed in "Indian Welfare Schools" when they were children, so the idea of another yet another avenue for the degradation of culture and sovereignty being reopened scares him as it's a slippery slope back to the abuse his family suffered and continues to address through generational trauma.

Depending on what the Court does, it could have revolutionary, catastrophic consequences. There are hundreds of treaties with Indian nations that are still in effect. If you can’t treat Indian nations as sovereigns, if you can’t treat Indians differently from non-Indians, does that make all those treaties unconstitutional? The Indian Gaming Regulatory Act regulates Indian gaming — is that unconstitutional? Title 25 of the U.S. Code is entitled “Indians.” There are many laws about Indians — is all of that unconstitutional? If they do what the petitioners are asking them to do, it would be quite destructive of tribal sovereignty and federal Indian law. It’s very hard for me to understand what the world would look like after that.


Source linked above ⬆️ 

[NewOrleans]

As everyone says, it’s horrifying and shitty. Something that really grates on me is that Alito and Barrett (Coney Barrett?)’s questions were weaponizing diversity. (Remember the affirmative action case just days before, when those two fucking ghouls were like “well how do you know when a place is diverse enough? You’re saying it will never be diverse enough, there has to be a standard for there being enough diversity.”) And now the same two assholes were accusing ICWA of “just treating Indian tribes as fungible,” and not having common cultural interests because they’re just so diverse. (Meanwhile, Thomas literally said he doesn’t even know what diversity means, so it would be cool if he would go back to sleep for another decade with visions of sedition dancing in his head).

[basilosaurus]

Nov 29, 2022 18:08:20 GMT -5 NewOrleans said:

As everyone says, it’s horrifying and shitty. Something that really grates on me is that Alito and Barrett (Coney Barrett?)’s questions were weaponizing diversity. (Remember the affirmative action case just days before, when those two fucking ghouls were like “well how do you know when a place is diverse enough? You’re saying it will never be diverse enough, there has to be a standard for there being enough diversity.”) And now the same two assholes were accusing ICWA of “just treating Indian tribes as fungible,” and not having common cultural interests because they’re just so diverse. (Meanwhile, Thomas literally said he doesn’t even know what diversity means, so it would be cool if he would go back to sleep for another decade with visions of sedition dancing in his head).

I'd be quite ok if it were an eternal slumber

[redheadbaker]

SCOTUS upheld Indian Child Welfare Act

www.scotusblog.com/2023/06/supreme-court-upholds-indian-child-welfare-act/

In a major ruling on Thursday, the Supreme Court rejected a challenge to the constitutionality of the Indian Child Welfare Act, a 1978 federal law that seeks to keep Native American children with Native American families. By a vote of 7-2, the court ruled that Congress had the power to enact the law, and it rebuffed arguments that the law violates the 10th Amendment’s “anticommandeering” doctrine, which bars the federal government from requiring states to adopt or enforce federal law. The court declined to reach two other claims, including an argument that ICWA discriminates based on race, explaining that neither the individuals challenging the law nor the state of Texas have standing – that is, a legal right to bring the lawsuit in the first place.

Justice Amy Coney Barrett wrote for the majority, in a 34-page opinion joined by Chief Justice John Roberts and Justices Sonia Sotomayor, Elena Kagan, Neil Gorsuch, Brett Kavanaugh, and Ketanji Brown Jackson. Justices Clarence Thomas and Samuel Alito each filed separate dissents.

[Jalapeñomel]

Jun 16, 2023 22:58:53 GMT -5 redheadbaker said:

SCOTUS upheld Indian Child Welfare Act

www.scotusblog.com/2023/06/supreme-court-upholds-indian-child-welfare-act/

In a major ruling on Thursday, the Supreme Court rejected a challenge to the constitutionality of the Indian Child Welfare Act, a 1978 federal law that seeks to keep Native American children with Native American families. By a vote of 7-2, the court ruled that Congress had the power to enact the law, and it rebuffed arguments that the law violates the 10th Amendment’s “anticommandeering” doctrine, which bars the federal government from requiring states to adopt or enforce federal law. The court declined to reach two other claims, including an argument that ICWA discriminates based on race, explaining that neither the individuals challenging the law nor the state of Texas have standing – that is, a legal right to bring the lawsuit in the first place.

Justice Amy Coney Barrett wrote for the majority, in a 34-page opinion joined by Chief Justice John Roberts and Justices Sonia Sotomayor, Elena Kagan, Neil Gorsuch, Brett Kavanaugh, and Ketanji Brown Jackson. Justices Clarence Thomas and Samuel Alito each filed separate dissents.

This was surprising, no?

[Pom]

You can always count on Alito and Thomas to represent the worst of humanity. But then again, look at their friends and patrons.

[imimahoney]

I'm very interested in figuring out why Gorsuch is such a staunch believer in tribal sovereignty. Lots of theories on twitter.. I kinda wish he would write a book on it so I could understand it better.

From a historical perspective his opinion is well done. I can see many gov and history teachers using it going forward. It does a good job at laying out the history of tribal sovereignty and America's effed up history regarding it. It's also a very accessible read for anyone wanting to learn more.

[StrawberryBlondie]

Jun 17, 2023 10:27:33 GMT -5 imimahoney said:

I'm very interested in figuring out why Gorsuch is such a staunch believer in tribal sovereignty. Lots of theories on twitter.. I kinda wish he would write a book on it so I could understand it better.

From a historical perspective his opinion is well done. I can see many gov and history teachers using it going forward. It does a good job at laying out the history of tribal sovereignty and America's effed up history regarding it. It's also a very accessible read for anyone wanting to learn more.

I think it's largely the area of the country he's from.

[aurora]

Jun 17, 2023 12:19:43 GMT -5 StrawberryBlondie said:

Jun 17, 2023 10:27:33 GMT -5 imimahoney said:

I'm very interested in figuring out why Gorsuch is such a staunch believer in tribal sovereignty. Lots of theories on twitter.. I kinda wish he would write a book on it so I could understand it better.

From a historical perspective his opinion is well done. I can see many gov and history teachers using it going forward. It does a good job at laying out the history of tribal sovereignty and America's effed up history regarding it. It's also a very accessible read for anyone wanting to learn more.

I think it's largely the area of the country he's from.

Metro Denver? Doesn't seem especially pro-tribal-rights.

[StrawberryBlondie]

Jun 17, 2023 14:05:31 GMT -5 aurora said:

Jun 17, 2023 12:19:43 GMT -5 StrawberryBlondie said:

I think it's largely the area of the country he's from.

Metro Denver? Doesn't seem especially pro-tribal-rights.

Not that specifically, but the 10th circuit. IIRC, they deal with way more tribal issues than the rest of the circuits.

[aurora]

Jun 17, 2023 14:13:30 GMT -5 StrawberryBlondie said:

Jun 17, 2023 14:05:31 GMT -5 aurora said:

Metro Denver? Doesn't seem especially pro-tribal-rights.

Not that specifically, but the 10th circuit. IIRC, they deal with way more tribal issues than the rest of the circuits.

Ok, that would make more sense, and is consistent with this opinion I found:

slate.com/news-and-politics/2023/06/neil-gorsuch-so-good-native-americans-scotus.html

The opinion also has this explanation:

...A persistent theme of Gorsuch’s jurisprudence is a conviction that the nation’s ills can almost always be attributed to some deviation from the Constitution’s original design and that restoring constitutional governance as envisioned by the Framers will right many wrongs of American history. Nowhere is that belief more consistent—and true—than in the Indian law cases. Gorsuch is right: The Constitution does command a certain measure of sovereignty and respect for tribes and their members; America’s brutal oppression of Native Americans represented a sharp break from the Framers’ intent.

[imimahoney]

Jun 17, 2023 14:16:08 GMT -5 aurora said:

Jun 17, 2023 14:13:30 GMT -5 StrawberryBlondie said:

Not that specifically, but the 10th circuit. IIRC, they deal with way more tribal issues than the rest of the circuits.

Ok, that would make more sense, and is consistent with this opinion I found:

slate.com/news-and-politics/2023/06/neil-gorsuch-so-good-native-americans-scotus.html

The opinion also has this explanation:

...A persistent theme of Gorsuch’s jurisprudence is a conviction that the nation’s ills can almost always be attributed to some deviation from the Constitution’s original design and that restoring constitutional governance as envisioned by the Framers will right many wrongs of American history. Nowhere is that belief more consistent—and true—than in the Indian law cases. Gorsuch is right: The Constitution does command a certain measure of sovereignty and respect for tribes and their members; America’s brutal oppression of Native Americans represented a sharp break from the Framers’ intent.

Yes, that's the most likely scenario plus being where he worked. It's just an interesting thought process because he seems to be the only "originalist" to actually take this line with the tribal nations.

I also wonder if he took an awesome class in law school about tribal sovereignty?