The history of the United States is full of broken promises to Native American. For a rather long period of time (in a pattern repeated in other places like Canada and Australia), part of the attempt of the European settlers to eliminate Native Americans was a practice of, for all intents and purposes, kidnapping children and placing them either in boarding schools or adopting them out to White parents to be raised without any knowledge of their ancestral culture.
During the Civil Rights era, several steps were taken to remedy these past sins. In part, the federal government strengthened the powers of tribal governments. Congress also passed the Indian Child Welfare Act to prevent a repeat of the efforts of some groups to break the tribes by stealing their youngest members. Of course, in the U.S. no law stays the same forever, and interest groups always try to push back against the laws that are on the books. Ultimately, these disputes end up at the Supreme Court, and recent terms have seen an ever growing number of cases related to Native Americans. This term was no different, and this week saw the U.S. Supreme Court decide two cases related to Native Americans.
The “minor” case — Lac du Flambeau Band of Lake Suprerior Chipewa Indians vs. Coughlin — involved the intersection between tribal government and bankruptcy law. Like other governments, sometimes an individual who owes money to a tribal government will enter bankruptcy. If a person owes money to a private business, that business is only allowed to take further steps to collect its debt through the bankruptcy court. In this case, the debtor tried to have the bankruptcy court enforce the stay against the tribe. Normally, governments (including the tribes) have immunity from being sued, but the bankruptcy code contains some exceptions. By a 7-1-1 vote, the Supreme Court found that tribal governments are inclcuded in the limited waiver of immunity contained in the bankruptcy code. The two who did not join the majority opinion were Justice Thomas and Justice Gorsuch for very different reasons. Justice Thomas agreed with the majority that the tribe lacked immunity from being sued because the tribe was engaged in “commerical” rather than “governmental” activity and, therefore, would not have had immunity even without the provision in the bankruptcy code waiving that immunity. Justice Gorsuch, however, would have found no waiver of immunity. In this case Justice Gorsuch continued his pattern of being one of the foremost defenders of the tribes on the Supreme Court. While this case was a “loss” for the tribes, it was a loss because the Supreme Court treated tribal governments as being equal to other governments.
The major case involved a challenge to the Indian Child Welfare Act, The basic purpose of the Indian Child Welfare Act was to stop the racist practice of giving Native children to non-Native parents. Admittedly, there are some non-Native parents currently (and historically) who are just looking to adopt any child and was not trying to forcibly assimilate Native children. But even when well-intentioned, such adopting out infringes on tribal efforts to preserve their integrity. The Indian Child Welfare Act imposes a set of procedural and substantive protections designed to give tribal members first priority over non-Natives if a Native child is being placed for adoption. Because most adoptions occur in state court, these procedural requirements require state actors to take certain steps. As should surprise nobody, there are groups out there who oppose giving any “special” rights to minoritiy groups and others who oppose any effort by the federal government to impost mandates on the states. And, of course, they are going to try to find the most sympathetic plaintiffs to be the vehicle for their challenge to laws like the Indian Child Welfare Act. And, of course, they are going to try to find a favorable trial and appellate court for hearing their complaints which means, in something that should shock nobody, the case challenging the Indian Child Welfare Act was filed in Texas, and after the trial court ruled for the plaintiffs, went to the Fifth Circuit. The Fifth Circuit upheld part of the trial court ruling but reversed other parts of the ruling;, and both sides brought the case to the Supreme Court. In one of those historical paradoxes, by the time that the case reached the U.S. Supreme Court, the Department of the Interior (the Department of the Interior is the Department responsible for enforcing the Indian Child Welfare Act) was, for the first time in history, headed by a Native American woman. With one minor exception, the U.S. Supreme Court rejected all of the challenges to the Indian Child Welfare Act. The minor excpetion is that one challenge was rejected on procedural grounds rather than the merits.
The first issue in Halland v. Brackeen was whether Congress had the authority to enact the Indian Child Welfare Act. The Constitution gives Congress the authority to regulate “commerce” with Native tribes. Historically, this clause has been broadly read as giving the federal government broad powers to regulate the relationship of the states to the tribes. Because tribes are semi-sovereign and separate from the states, it is up to the federal government to define what powers the state government have in dealing with tribal governments and tribal membership. While, typically, adoptions are part of family law which is properly the realm of state law, when adoptions implicate federal powers (such as if a person was trying to adopt a child from China or Russia), the federal government can enact laws governing such adoptions. As such, the Indian Child Welfare Act is authorized by the federal government’s primary authority to enact laws related to Native tribes and members of those tribes.
The second issue was whether the provisions of that law violated the Tenth Amendment. One, somewhat questionable, aspect of the Supreme Court’s Tenth Amendment jurisprudence is the principle that the Tenth Amendment bars the federal government from “commandeering” state actors. But, there are exceptions to this rule. When state actors are “optional” participants in an issue subject to federal law, it does not violate the Tenth Amendment to require those state actors to follow the same rules as a private individual would. And, in the case of adoptions, while frequently state agencies play a significant role in taking custody of children if they are being abused or neglected, adoptions are also initiated by private agencies. As such, rules requiring both public and private adoption services to take steps to try to find Native parents to adopt Native children do not violate the Tenth Amendment. Similarly, while typically, federal statutes may not compel state courts to handle state law matters in any particular manner, if a state court is open to a federal law matter (and the Indian Child Welfare Act makes the adoption of a native child a mixed federal and state law action), the state court must comply with the federal rules governing that federal law matter.
The last claim was an equal protection claim — basically that the law unlawfully discriminates against non-Native parents seeking to adopt by giving Native parents the priority when seeking to adopt native children. The majority opinion, written by Judge Barrett, evades this issue by finding no standing. The most significant part of this holding is that the state parties (primarily the State of Texas) lack the authority bring an equal protection claim on behalf of its citizens. If applied to other types of claims, this ruling could put a block on what has been a growing practice of both red and blue states challenging federal acts based on the violation of individual rights. As to the potential adoptive parents, the Supreme Court finds that they sued the wrong parties. The equal protection challenge only concerns the preferences which is not something that is directly enforced by the federal government. Instead, the preferences are part of the adoption action. So rather than filing a separate case, the parents need to challenge the preferences in the course of litigating their attempt to adopt the child.
The decision in Halland was 7-2 (with Justice Alito and Justice Thomas being the two). Besides the majority opinion, there was a concurring opinion from Justice Gorsuch (joined by Justice Jackson and Justice Sotomayor) and a concurring opinion from Justice Kavanaugh. While Justice Gorsuch’s opinion does not directly address the equal protection challenge, the broad language in the opinion about respecting the tribes and his votes in other cases would tend to indicate that he will not be receptive to the equal protection claim. On the other hand, Justice Kavanaugh in his typical attempt to impose a historically inaccurate “color blind” reading of the Fourteenth Amendment suggests that he believes that such a challenge is “serious.”
In reality, the challenge is not serious. Protecting the tribes from further depletion is, for the purpose of the law governing equal protecition claims, a compelling interest. And, without giving Native parents the first opportunity to adopt, it is hard to see how to narrowly tailor a statute to serve that interest. But, in today’s Orwellian view of equal protection put forward by the hard right, it is racist to have a policy that prevents a racist policy from ever happening again.
