#Haaland v. Brackeen

[intersexfairy]

Further info: The Supreme Court voted 7-2 to deny all challenges to ICWA. Clarence Thomas and Samuel Alito were the 2 judges in descent. The rest denied the challenges based on "merit and lack of standing" (this info is available on SCOTUS blog).

THE ICWA IS UPHELD

THE ICWA STANDS

[empiricalscotus]

And We’re Off to the Races

If you feel like the 2022 Supreme Court Term just ended you are not alone. The justices began this term much like where they left off in June 2023 —  with the October argument session of the 2023 Term now complete and six oral arguments already under the justices’ belts we are seeing similar variation in their oral argument engagement to we had last year.  Once again, Justice Jackson is far ahead…

[leohtttbriar]

i knew gorsuch would start strong! gonna eat his concurrence for breakfast thanksss

[sanguinarysanguinity]

Oh thank fuck, the Supreme Court upheld the Indian Child Welfare Act:

In a concurring opinion by Justice Neil Gorsuch, joined by Justice Sonia Sotomayor, Gorsuch praised the majority opinion upholding the law, and wrote that when enacting it more than 30 years ago, Congress exercised its lawful authority to "secure the right of Indian parents to raise their families as they please; the right of Indian children to grow in their culture; and the right of Indian communities to resist fading into the twilight of history."

"In affirming the constitutionality of the Indian Child Welfare Act (ICWA), the Court safeguards the ability of tribal members to raise their children free from interference by state authorities and other outside parties," he wrote. "In the process, the Court also goes a long way toward restoring the original balance between federal, state, and tribal powers the Constitution envisioned."

https://www.cbsnews.com/news/supreme-court-indian-child-welfare-act-haaland-v-brackeen/

[schraubd]

Thomas and Alito: The Anti-Gorsuchs on Tribal Rights

In the wake of today's blockbuster decision in Haaland v. Brackeen (upholding the Indian Child Welfare Act against constitutional challenge), and somewhat-less blockbuster decision in Lac du Flambeau Band of Lake Superior Chippewa Indians v. Coughlin (holding that tribal sovereign immunity is abrogated by the bankruptcy code), Josh Blackman observes that Justice Gorsuch appears to have ruled in favor of tribal parties in every case he's heard while on the Supreme Court. There's one case on that list that is arguably a bit dicey -- Yellen v. Confederated Tribes of Chehalis Reservation -- but by and large Justice Gorsuch's strong affinity for Indian tribes and tribal rights is very well-known.

Blackman thus asks whether Gorsuch has "ever written an opinion that ruled against an Indian Tribe or Member?" It's an interesting question. But reading Blackman's list, I noticed that in every case where Gorsuch ruled in favor of tribes, Justices Alito and Thomas were on the opposing side. He even recognizes that Gorsuch "is consistently on the other side of Justices Thomas and Alito" on these issues. Gorsuch has never written a unanimous opinion on a tribal rights question because in every case (at least) Thomas and Alito have voted against the tribes. Just as Gorsuch has apparently always voted on the side of tribal interests, it appears that, at least during Justice Gorsuch's tenure on the Court, Thomas and Alito have never voted in favor of tribal interests.

This is a striking streak -- maybe even more so than Gorsuch's 1.000 batting average. Obviously, Alito and Thomas don't have any general negative view towards Gorsuch's jurisprudential outlook -- they're aligned most of the time. And, whether you agree with Gorsuch or not, it's hard to gainsay that he is the foremost subject-matter expert on Indian law on the Supreme Court. So it's surprising that Alito and Thomas have never been willing to sign on to one of his opinions. When I was on the Eighth Circuit, my Judge (the late Diana E. Murphy) was generally recognized as one of the court's Indian law specialists, and so would typically get some amount of deference from her fellow judges on those questions -- not always, and not blindly, but it was there. Yet despite general ideological concurrence, and despite specific reasons to know that Gorsuch is the Supreme Court's Indian law specialist, Alito and Thomas have nonetheless been as implacable foes of tribal rights as Gorsuch has been a friend.

So again, asking whether Gorsuch has "ever written an opinion that ruled against an Indian Tribe or Member" is an interesting question. But still, I think there's also a corollary question to Blackman's. "When is the last time (if ever?) that Alito or Thomas have written an opinion ruling for an Indian Tribe or Member?" Thomas and Alito have been on the Court longer than Gorsuch has, so their record stretches back further than his tenure. But if we wonder as to why Gorsuch is so friendly to tribes and tribal interests, we perhaps should be equally curious as to why Thomas and Alito are so hostile to them.

via The Debate Link https://ift.tt/yzYjcnP

[mariacallous]

This case is about children who are among the most vulnerable: those in the child welfare system. In the usual course, state courts apply state law when placing children in foster or adoptive homes. But when the child is an Indian, a federal statute—the Indian Child Welfare Act—governs. Among other things, this law requires a state court to place an Indian child with an Indian caretaker, if one is available. That is so even if the child is already living with a non-Indian family and the state court thinks it in the child’s best interest to stay there.

Before us, a birth mother, foster and adoptive parents, and the State of Texas challenge the Act on multiple constitutional grounds. They argue that it exceeds federal authority, infringes state sovereignty, and discriminates on the basis of race. The United States, joined by several Indian Tribes, defends the law. The issues are complicated—so for the details, read on. But the bottom line is that we reject all of the petitioners’ challenges to the statute, some on the merits and others for lack of standing.

Justice Amy Coney Barrett, opening the Court’s 7-2 decision to uphold the Indian Child Welfare Act, in Haaland v. Brackeen

[jeannereames]

ICWA STANDS!!!!

[dogfishmonger]

ICWA was in fact not overturned, so you’re right on that. In fact, some states added ICWA into their state laws as well (my state of Montana being one of them, so wooh! there’s at least one good thing about Montana from these last few years).

the reason it was brought into question in the first place (this last time, because the law is only 45-ish years old and has been challenged multiple times) was because of one specific non-native couple trying to adopt one specific child with native heritage. the fact that such a thing could happen over the demands of one non-native couple—potentially overturning this protection and endangering countless native kids—was terrifying at the time, and the prospect that it could be so easily challenged again under an even less “sympathetic” administration is even more nauseating.

nothing that we view as codified law is ever truly “safe” from overturn. we saw that with RvW.

edit: https://narf.org/cases/brackeen-v-bernhardt/ added this link for further reading

/gen /nm

do not forget about reservations.

do not forget about the people on reservations.

when you are making and reading posts about dire predictions for quality of life, do not forget about reservations.

we already have issues accessing clean water. we already experience devastation from climate change. we are already going missing for our race. we are already being murdered for our culture.

it will only get worse.

it’s possible to live through. every single person indigenous to north america has a chance to live through this. i’m not trying to fear monger; i’m trying to remind you.

please do not forget about us when you assure people that “everything will be okay; people are living under far worse circumstances in other countries”.

people are living under far worse circumstances here. and it can get worse. and it will get worse. and we need you to remember that we’re here when it happens.

[prelawland]

The Law Of Brackeen v. Haaland 

By Catherine Kavalauskas, University of California Davis Class of 2026

August 13, 2024

Following the decades of United States history in which the American government threatens Indian heritage and culture, this article highlights the significance of the establishment, implementation, and advocation of acts that maintain the culture of Indian tribes throughout America. Moreover, this article covers Brackeen v. Haaland, a Supreme Court case that questioned the constitutionality of the Indian Child Welfare Act (ICWA)—highlighting the significance of the ruling that resulted from this case in addition to the parameters of the ICWA. 

For full article please visit

Brackeen v. Haaland

at

California PreLaw Land

[californiaprelawland]

Brackeen v. Haaland 

By Catherine Kavalauskas, University of California Davis Class of 2026

August 13, 2024

Brackeen v. Haaland was a Supreme Court Case that surrounded the constitutionality of the Indian Child Welfare Act (ICWA). The case resulted from three child custody hearings that concerned an Indian child. Moreover, the ruling of the hearings directly interfered with the ICWA as the child was placed under the care of a non-Indian family. Therefore, following the custody cases the child’s tribe sought to reinforce placement preferences that the ICWA established for displaced Indian children (2). 

Throughout the history of the United States, our government has caused an epidemic of American Indian children being forcibly removed from their native lands by child welfare agencies. Moreover, displacement from their land, arguably also separates them from their sources of culture and therefore, their overall sense of identity. After being stripped of their families, they are then forcibly placed with non-Native families and at young ages Native children are forced to take on new lives. Theodora Simon (Navajo) of the ACLU states, “Throughout history, federal and state governments have sought to undermine and threaten the existence of tribes via the forced separation and assimilation of Native children” (3).  

In 1978 the United States finally addressed this epidemic as they passed the ICWA. The act aims to protect and prioritize the placement of American Indian children as it aims at keeping children with their Native families (4). More specifically, the ICWA establishes parameters for state courts, ensuring that Indian children are placed with their extended families or with their tribal communities. The placement of Indian children within these communities is essential as it guarantees that the cultural identities of these children will be maintained and recognized. Moreover, this act ensures the protection of the cultural identity of these children but also protects the futures of Native tribes in America as it ensures that cultural and Native identities live on. 

However, as stated, in recent custody trials that concerned a Native child, a child was placed with a non-Indian family despite the parameters of the ICWA. Following the custody cases, the child’s tribe sought to reinforce the parameters of the ICWA. Therefore, an amicus brief with the Supreme Court was filed by the American Civil Liberties Union (ACLU) and twelve ACLU state affiliates. The plaintiffs ultimately sought to uphold the constitutionality of the ICWA.  

Moreover, in a decision that recognized and validated the struggle of Native people at the hands of the American government, the Court ruled to uphold the ICWA. The ruling has been recognized as a victory for Native people – families, children, etc. throughout the country as the act aims to protect and maintain the future of Native cultures in the United States. Therefore, Brackeen v. Haaland served as a significant recent Supreme Court case as it acknowledged the epidemic of the displacement of Indian American children in the U.S. The case also highlights the importance of continuing to establish, implement, and advocate acts, such as the ICWA, as they protect the lives and culture of minority groups throughout America.  

______________________________________________________________

1) Wikipedia. “Seal of the United States Supreme Court”. https://en.m.wikipedia.org/wiki/File:Seal_of_the_United_States_Supreme_Court.svg. 10 Aug 2024.  

2) UNC. “Haaland v. Brackeen”. https://www.sog.unc.edu/cwcc/cases/haaland-v-brackeen#!#:~:text=The%20case%20arises%20from%20three,placement%20preferences%20designated%20in%20ICWA. 10 Aug 2024. 

3) ACLU. “Haaland v. Brackeen.” 15 June 2023. https://www.aclu.org/cases/brackeen-v-haaland. 10 Aug 2024. 

[empiricalscotus]

I'm Still Standing

What ingredients come to mind when you think of cases before the Supreme Court? One might opine controversial issues or high stakes litigation. At a case level one might say circuit splits or elite attorneys. Still, there are more elementary components of litigation mentioned in Article III and they start with a case or controversy.  Central to this concept is standing – that a plaintiff suffered…

[frxstguardian]

#idk i think ICWA is less about protecting parents' rights and more about saying kids have a right to be kept connected with their community #i'm not indigenous so take this with a grain of salt of course. i just think it's still mostly about protecting the kid from racial trauma #...and cultural genocide (via @protectcosette​)

I largely agree with you, but I'd go one step further and say (also as someone who's not indigenous) that ICWA is not even about any individual's rights but about a political community's right to continuity and culture. Parental rights are merely one legal framework through which to enforce that communal right, since most children are developmentally and financially unable to advocate for themselves. Western countries are very individualist about rights, so leveraging that is often the most effective way to legally protect communities even if it’s more indirect.

Indeed, under ICWA, parental preferences can be overridden by tribal nations, demonstrating that parental rights are not the central basis of the law. In one of the Brackeen v. Haaland cases, the biological parents actually supported adoption of their child by a white couple, but the Navajo Nation still identified alternative placement in a Native home and attempted to intervene. However, the couple successfully petitioned to adopt the child in state court. They then filed a lawsuit challenging ICWA in federal District Court, which has now reached the Supreme Court.

"Parent's rights" is as much of a red flag to me as "Family values". When you examine what people actually mean by these terms it always boils down to the usual "the family is a system of domination and many parents want even more control and violence within it".

[that-fema-corps-blog]

Day 318

June 16, 2023

Spent most of today working on job applications. Also learned that the Indian Child Welfare Act was upheld by the Supreme Court on Thursday.

Passed in 1978, the Indian Child Welfare Act (ICWA) was a response to decades of federal and state policies designed to remove Native kids from their families and cultures. ICWA was built on the principle that tribal nations exist as political sovereigns and, as such, child welfare cases involving Native children should prioritize placement with Native families, in particular those within the child’s own tribe.

[mariacallous]

The decision in Haaland v Brackeen was a 7-2 majority with Amy Coney Barrett delivering the opinion, which I wasn’t expecting.

[hyperspacial]

another consideration especially in America (I'm sure it's applicable in Canada/other imperial powers) is that adoption of Native American babies has been a modern form of cultural genocide.

Up until 1978, estimates guess that up to 35% of indigenous children in the US were taken from their family by government agencies and adopted into non-native (often white) homes or residential schools.

This was largely because 1) native American babies were seen as more racially ambiguous and more desirable by white Americans and 2) as a result of poverty, overpolicing, and racism, CPS and other agencies disproportionately targeted native families.

In 1978 the federal government passed the Indiginous Child Welfare Act (ICWA) which, among other things, required a native child not in their parents' custody to first go to extended family, then unrelated families in their same tribe, then an indigenous home, and only if those options didn't work could they be adopted by a non-native family.

Because America continues to be colonialist, ICWA was threatened in 2017 by Haaland v. Brackeen, a lawsuit filed by a while Texas family who adopted a Navajo child then sued when they were unable to adopt his sister.

What's interesting about the case is this small-scale custody issue became a lawsuit that the states of Texas, Louisiana, and Indiana joined, with lawyers funded by the oil and gas industry. ICWA, a basic protection for tribal custody disputes, is seen by conservative thought leaders as an in-road to undermining contemporary tribal sovereignty.

Season 2 of the podcast This Land is a good entry point into this history and ramifications: https://crooked.com/podcast-series/this-land/

But tl:dr research shows that transracial adoption has worse outcomes than placing children within their communities, and has historically been a tool of cultural genocide.