Thank you for this very accessible exposition of the caselaw around the ICWA.
The main stream media had recently noted that the pope was finally disavowing the doctrine of “Christian discovery”. The news item sounded so quaint and it lacked context.
Your article has given it the context I needed.
It seems like we are overdue for the United States government to disavow the doctrine of “Christian discovery“.
Such a disavowal could be based on the “establishment clause” of the constitution, separation of church and state, etc.
It is time that we ventured forth in exploration and discovery beyond “the known lands“ of medieval doctrine and dogma.
As a long time professor of Constitutional law and legal history, I find Professor d'Errico's essay both useful and confusing. There is some very useful history here. But his overall argument about Brackeen mystifies me. He writes: "The outpouring of liberal 'relief' in response to Haaland v. Brackeen is thus wholly misplaced." I think he is wrong. Many of us feared the Court -- this Court -- would overturn the Indian Child Welfare Act (ICWA) as it has overturned other very useful laws such as in the NY Firearms case. Many of us are equally worried about what will happen in Students for Fair Admissions, Inc. (SFAI) v. President and Fellows of Harvard. We have just seen a truly awful decision in Arizona v. Navajo Nation (the Navajo water rights case) over Justice Gorsuch's powerful dissent. Given where this Court has been and just went, we should of course be cheering the outcome in Brackeen. There should indeed be relief.
After all, the alternative, the only realistic alternative, would have been to overturn the ICWA. I do not believe Professor d'Errico wanted the ICWA struck down (In a private email he said as much and while I would not normally divulge the contents of a private email, think I should just so it is clear I am not suggesting he wanted tie ICWA struck down.)
In almost all of its decisions, the Supreme Court only decides what is before it, and what has been actually litigated. Sometimes (rarely) larger questions are answered, usually when they will prevent further litigation on the same matter. In Brackeen the Court had to decide if the ICWA was constitutional. This case was about federal power. If Congress did not have the power to pass the law, then the law would be struck down, leaving tribes with no authority to protect their children from state law. I doubt anyone would want that result.
Professor d'Errico uses the example of Brown v. Board of Education to show what the Court might have done here. But, there are two problems with his argument. First, he is wrong in asserting that Brown "removed the doctrine of 'separate but equal' from the structure of US laws about ‘equal protection’." In fact, Brown only, and narrowly, applied to public K-12 schools. The Court wrote: "We conclude that in the field of public education the doctrine of 'separate but equal' has no place. Separate educational facilities are inherently unequal." The Court applied this to all public schools in the nation, but not to any other kinds of state supported or required segregation. The Court did not overturn all segregation, that took other cases, such as Gayle v. Browder (1956) which overturned Plessy with regard to intrastate transportation. That case came out of the Montgomery Bus Boycott. It also took many federal laws such as those in 1964, 1965, and 1968.
Second, it is critical to remember that Brown was a carefully planned case, which followed a number of other cases, over many years,, which had used "separate but equal" to chip away at salary discrimination for public school teachers, school funding ,and segregated higher education most importantly, in Sweat v. Painter (1950). Indeed, in Sweat the NAACP did not challenge separate but equal, rather it persuaded the Court to enforce it by integrating the Univ. of Texas law school precisely because Texas's newly created state law school for Blacks was not equal and never would be equal. Brown was specifically brought to challenge segregated schools only after many cases, starting with Guinn v. US in 1915. Brown was a gamble, when a suit for school equalization would have been an easy case to win. Brown was a gamble that paid off in part because it was carefully planned, with years of groundwork..
I think Professor d'Errico is right, in suggesting that a long term strategy -- "the kind of strategy discussions that Thurgood Marshall undertook" as he put it -- is necessary to remake Federal Indian Law. [Of course that path preceded Marshall by many years.] That strategy included many cases which upheld separate but equal, and in fact used that rule to win cases where facilities were not equal. The NAACP Legal Defense and Education Fund did not denounce those victories -- as Prof. d'Errico denounces the decision in Brackeen and Justice Gorsuch's opinion in McGirt. Rather, the NAACP cheered them on the first steps to end segregation. In that context, we ought to cheer on Brackeen, McGirt, and the dissent in Navajo Nation.
Paul Finkelman
Boden Professor of Law, Marquette Law School, Spring 2024.
Thank you for this very accessible exposition of the caselaw around the ICWA.
The main stream media had recently noted that the pope was finally disavowing the doctrine of “Christian discovery”. The news item sounded so quaint and it lacked context.
Your article has given it the context I needed.
It seems like we are overdue for the United States government to disavow the doctrine of “Christian discovery“.
Such a disavowal could be based on the “establishment clause” of the constitution, separation of church and state, etc.
It is time that we ventured forth in exploration and discovery beyond “the known lands“ of medieval doctrine and dogma.
Shared a link to Peter's post at my website: https://blog.americanindianadoptees.com
As a long time professor of Constitutional law and legal history, I find Professor d'Errico's essay both useful and confusing. There is some very useful history here. But his overall argument about Brackeen mystifies me. He writes: "The outpouring of liberal 'relief' in response to Haaland v. Brackeen is thus wholly misplaced." I think he is wrong. Many of us feared the Court -- this Court -- would overturn the Indian Child Welfare Act (ICWA) as it has overturned other very useful laws such as in the NY Firearms case. Many of us are equally worried about what will happen in Students for Fair Admissions, Inc. (SFAI) v. President and Fellows of Harvard. We have just seen a truly awful decision in Arizona v. Navajo Nation (the Navajo water rights case) over Justice Gorsuch's powerful dissent. Given where this Court has been and just went, we should of course be cheering the outcome in Brackeen. There should indeed be relief.
After all, the alternative, the only realistic alternative, would have been to overturn the ICWA. I do not believe Professor d'Errico wanted the ICWA struck down (In a private email he said as much and while I would not normally divulge the contents of a private email, think I should just so it is clear I am not suggesting he wanted tie ICWA struck down.)
In almost all of its decisions, the Supreme Court only decides what is before it, and what has been actually litigated. Sometimes (rarely) larger questions are answered, usually when they will prevent further litigation on the same matter. In Brackeen the Court had to decide if the ICWA was constitutional. This case was about federal power. If Congress did not have the power to pass the law, then the law would be struck down, leaving tribes with no authority to protect their children from state law. I doubt anyone would want that result.
Professor d'Errico uses the example of Brown v. Board of Education to show what the Court might have done here. But, there are two problems with his argument. First, he is wrong in asserting that Brown "removed the doctrine of 'separate but equal' from the structure of US laws about ‘equal protection’." In fact, Brown only, and narrowly, applied to public K-12 schools. The Court wrote: "We conclude that in the field of public education the doctrine of 'separate but equal' has no place. Separate educational facilities are inherently unequal." The Court applied this to all public schools in the nation, but not to any other kinds of state supported or required segregation. The Court did not overturn all segregation, that took other cases, such as Gayle v. Browder (1956) which overturned Plessy with regard to intrastate transportation. That case came out of the Montgomery Bus Boycott. It also took many federal laws such as those in 1964, 1965, and 1968.
Second, it is critical to remember that Brown was a carefully planned case, which followed a number of other cases, over many years,, which had used "separate but equal" to chip away at salary discrimination for public school teachers, school funding ,and segregated higher education most importantly, in Sweat v. Painter (1950). Indeed, in Sweat the NAACP did not challenge separate but equal, rather it persuaded the Court to enforce it by integrating the Univ. of Texas law school precisely because Texas's newly created state law school for Blacks was not equal and never would be equal. Brown was specifically brought to challenge segregated schools only after many cases, starting with Guinn v. US in 1915. Brown was a gamble, when a suit for school equalization would have been an easy case to win. Brown was a gamble that paid off in part because it was carefully planned, with years of groundwork..
I think Professor d'Errico is right, in suggesting that a long term strategy -- "the kind of strategy discussions that Thurgood Marshall undertook" as he put it -- is necessary to remake Federal Indian Law. [Of course that path preceded Marshall by many years.] That strategy included many cases which upheld separate but equal, and in fact used that rule to win cases where facilities were not equal. The NAACP Legal Defense and Education Fund did not denounce those victories -- as Prof. d'Errico denounces the decision in Brackeen and Justice Gorsuch's opinion in McGirt. Rather, the NAACP cheered them on the first steps to end segregation. In that context, we ought to cheer on Brackeen, McGirt, and the dissent in Navajo Nation.
Paul Finkelman
Boden Professor of Law, Marquette Law School, Spring 2024.
paul.finkelman@yahoo.com