🚨Good Morning!! Pre-Argument 🧵 1 of 3 explaining the constitutional challenges to #ICWA that #SCOTUS will hear today in Haaland v. #Brackeen: The Equal Protection Clause (EPC). 1/14
The EPC of the 14th Amendment (w/ Due Process Clause of 5th) guarantee equal protection of the law, no matter who you are. #SCOTUS interprets this not to prohibit laws that treat categories of people differently but says laws are disfavored if they target disfavored groups. 2/14
The more disfavored the group, the more scrutiny we apply to the law. Or that's how it started. Now we look at certain kinds of classes of categorizing people as more suspect--like racial classifications--even when they target the majority group. 3/14
You with me? That's how we have challenges to affirmative action by White Americans. Because racial classifications at all are disfavored & so it’s harder for the government to use them, its presumptively illegal. 4/14
To use racial classifications, the government must prove it has an extremely good reason (compelling government interest) & design the use of race very precisely to achieve that reason (narrowly tailoring). This is VERY HARD. 5/14
For less concerning categories, like people w/ certain credentials or job experience (think licensing) it's fine if the government has a legitimate reason & the law is rational. I repeat: what the gov. does has to be justified & rational but it doesn’t need to be perfect. 6/14
Since a 1974 case called Morton v. Mancari, #SCOTUS recognized that Indian is a racial category, but that tribal citizenship is not inherently racial because tribal citizenship is both over & underinclusive of Indians as a race. 7/14
I.e. there are lots of White or White passing tribal citizens, Black freedmen tribal citizens, & plenty of Indians who are not eligible for enrollment in a particular tribe. Using tribal citizenship means less scrutiny: rationally related to U.S.'s duty to Indians. 8/14
In #Brackeen, #SCOTUS is revisiting Morton v. Mancari. It might say that #ICWA, which uses tribal citizenship to decide which Indian children to protect, is racially discriminatory & thus deserves higher scrutiny--strict scrutiny—to survive a challenge under the EPC. 9/14
Why is higher scrutiny so bad? Well, because it gives the Supreme Court a lot of power. They get to decide what is an important enough government interest & can strike down laws that aren’t perfectly tailored to that interest. 10/14
For example, under strict scrutiny, making up for past discrimination is not a good enough reason for affirmative action (only diversity was) & the specifics of how schools design these plans are subject to constant legal challenges. 11/14
If this happens to ALL OF INDIAN LAW, we enter an era where every single use of the word Indian in federal law & an entire title of the U.S. Code, is constitutionally suspect. Every program for Indians, from Indian Health Service, to Commodities, to reservations. 12/14
EVERY SINGLE ONE of those laws & programs could be subject to challenge. And the very idea that tribal governments can exist would be called into question. People could challenge the very existence of tribal governments as an unconstitutionally race-based. 13/14
This is why Indian Country is SO WORRIED about this case. This EPC challenge attacks a pillar that supports the entire rest of tribal sovereignty & federal Indian Law.
But it’s not the only challenge that does...See my next thread! 14/14
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🚨Good Morning!! Pre-Argument 🧵 3 of 3 explaining the constitutional challenges to #ICWA that #SCOTUS will hear today in Haaland v. #Brackeen: Anti-Commandeering. 1/7
This challenge is about state’s power. The idea, from the structure of the Constitution and the 10th Amendment, is that Congress has limited power, & can’t interfere with powers that belong to States. 2/7
Congress can pass laws preempting (trumping) state law, but they can’t make state officials do stuff to enforce federal law. Congress can make it illegal to buy certain kinds of firearms, for example, but they can’t force state officials to run background checks. 3/7
🚨Good Morning!! Pre-Argument 🧵 2 of 3 explaining the constitutional challenges to #ICWA that #SCOTUS will hear today in Haaland v. #Brackeen: Article 1/Congressional Power. 1/16
Congress can only pass a law if the Constitution gives them the authority to pass that type of law. Congress must "have the power" to pass a law, or else the whole law is unconstitutional, & so are all the other laws of that type. 2/16
So it matters a ton what types of laws the Constitution says Congress can pass. In #Brackeen, whether Congress can pass a law that aims to keep Indian children with their families, communities, & culture. 3/16
The right and power of tribes to rule themselves is being dismissed in favor of state power.
Tribes are…I can’t even write it…part of states.
For those wondering, “Why is it bad that states can prosecute too?”
Three answers: 1- States/Tribes have a long history of animosity. Fair treatment isn’t a fair assumption. 2- Tribes want to make different laws for their land than states. 3- Many resources are a zero sum game.
Let's add more: 4- The feds & states can now blow off responsibility while scapegoat e/o for not prioritizing Indian County (a difficult and expensive area to police and prosecute).
This #SCOTUS opinion in Castro Huerta is horrifying and insulting to Indian people and tribes.
I’m shaken.
Every few paragraphs of the majority opinion has another line that dismissively and casually cuts apart tribal independence that Native ancestors gave their lives for.
Waking up to lines like:
The rules of law on most reservations “was relatively insignificant in the real world.”
And “Indian country is part of a State, not separate from a State.”
Just…how dare they.
The majority opinion is more than tone deaf, it's disconnected from the reality of American history, dismissive of the actually important cases, and clearly ignorant of the reality of Indian Country's criminal jurisdiction landscape today.
[Thread] Yesterday was Three Kings Day. A Catholic holiday that has become a hybrid celebration of Pueblo spirituality and the day where the newly elected secular political leaders are honored and take office. Many pueblos dance our sacred Buffalo Dances.
[2/4] It's an honor to be asked to dance the Buffalo. One I dreamed about growing up. So much ceremony, care, prayer, history, understanding, and reverence goes into every inch of it. There is resilience, forgiveness, and perseverance in this day and those prayers.
[3/4] So seeing "Q-Shaman" or "Buffalo Head Guy" with horns and face paint screaming and threatening public servants makes me feel physically sick. His use of THAT buffalo head fake Indian aesthetic, and on THIS day, to do WHAT he did is a desecration and disrespect beyond words.
Thread: Federal Indian Law context for what the #McGirt#SCOTUS decision and does not mean about which government now had power to do what in Oklahoma. This is how criminal jurisdiction works between the sovereigns on the land that federal law defines as “Indian Country.”
“Indian Country” is defined to include “reservations.”
Several different laws and cases have made the rules about which government prosecutes who. One of them is the Major Crimes Act, it governs serious crimes committed by Indians. McGirt challenged only the Major Crimes Act.
The Supreme Court just held that the Muscogee Creek Nation reservation was not disestablished, and so for purposes of the Major Crimes Act (the only law whose application was explicitly challenged), Indian Country, includes this land.