Thread by @RewireNewsGroup

*taps mic*

Good morning!

@AngryBlackLady here live-tweeting the arguments in #BrackeenVHaaland, the case that demonstrates there's nothing white folks won't complain about when they don't get their way. They want native children and by George, they'll have them, ICWA be damned!

The case is more than about the white supremacist urge to steal Native children from their homes and assimilate them, thereby severing their ties to their tribes.

It's also about ending tribal sovereignty. "Native American" is a political designation that means something.

But the Brackeens and the state of Texas want "Native American" to be a racial classification so they can complain that the Indian Child Welfare Act unfairly prioritizes Native American people in the placement of Native foster children.

Read this intro thread and hang on to your butts. We are about to start.

https://twitter.com/RewireNewsGroup/status/1590034527824801793?s=20&t=M4k0zlx8gePQ7xGTuH1ijg

Matthew McGill, a lawyer for power firm Gibson Dunn—which also represents oil companies in Texas which are trying to steal Native land—is whinging that ICWA hurts Indian children.

This is flatly untrue as Congress found when it passed ICWA in 1978.

McGill is arguing that ICWA violates the best interest of the child standard and that it violates equal protection.

Sotomayor: What about The Hague Convention rules regarding kidnapping children and sending kids back to their habitual residence? Shouldn't those apply here?

Sotomayor will not let go: Congress has plenary authority over the placement of Indian children. If Congress can supersede a state standard in some cases, why can't they here.

The #Brackeen attorney is basically arguing that tribal citizenship is racism.

McGill arguing that the placement of children is not an Indian Commerce Clause question. So the question is whether Congress's plenary power applies.

He's saying that it applies only to sovereign interests, tribal lands, treaties, it's not a power to regulate Indians everywhere.

Sotomayor: There are a legion of cases where Congress has gone off of Indian lands. Had nothing to do with sovereignty or trade or commerce. So what gives.

Jackson: Why is Congress's power limited to tribal land and self-government?

in legislative history, Congress repeatedly referred to restrictions and regulations in ICWA as a matter of tribal. governmance and sovereignty.

Jackson: Congress said there's no resource that is more vital than the existence of Indian children.

Congress constantly passed regulations regarding Indian children as a matter of tribal sovereignty. So why isn't that enough to bring it within scope of congress's power?

McGill: Placing a Seminole child with a Cherokee tribe doesn't advance tribal sovereignty.

I think Native Americans writ large might disagree, white man.

It also cuts against what the 427 amici tribes are arguing. They know their own culture, ffs.

Gorsuch: How is this an invidious racial classification rather than a political classification.

Tribes are mentioned in the Constitution. The treaty power says tribes are separate sovereigns.

Gorsuch, basically: Wtf, man.

(Gorsuch is really good on Native American issues.)

Gorsuch: In Mancari v. Morton, we said that Native American is a political classification not racial.

(@Hegemommy and I will talk you through the Mancari case during our live stream!)

Sotomayor: Are you suggesting that Congress's power is only with respect to tribes and not Indians? They can't regulate the relationship between Indians and others.

Sotomayor, cont'd: So all the laws at the founding were unconstitutional to start with? Because they had nothing to do with reservations they had to do with individuals?

McGill: There are serious equal protection problems in some of these cases.

Ironically, he mentions the forcible removal of children from tribes and placing them into boarding schools where they were abused and killed.

But the forcible removal of children from tribes and placement in evangelical homes where they are assimilated is the SAME THING.

If you've been following @rebeccanagle, you'll know that it is EXTREMELY SHADY that power firm Gibson Dunn took the Brackeen case pro bono. Why? Because they represent oil companies in Texas. That's why Texas is involved. This is about stealing more Native Land not just kids.

Think oil pipelines and all of the protests surrounding them. Standing Rock, etc.

(And seriously, please listen to Nagle's podcast, This Land.)

Kagan: Congress has said that ICWA is critical to the existence of tribes as a political entity.

The political entity is being threatened by decisions about where children are placed.

SO ICWA is about the continued flourishment of political community.

Brackeen atty says he rejects the idea that Native Americans have a proprietary interest in Native children.

"Children aren't the property of these tribes."

The slave language just jumped out.

WHAT.

It's not a proprietary interest, you numpty. It's a culture interest. A desire to maintain their tribal sovereignty.

He's legit saying tribes are considering their own children as property. WTF.

This guy is the worst.

This is definitely Gorsuch's show. Gorsuch is raking this dude over the coals.

Brackeen's attorney is really leaning into this idea that Indian childre are "persons" within the meaning of the Fifth Amendment and is essentially arguing that they cannot unilaterally be enrolled in any random tribe.

But the tribes disagree. Congress disagreed.

Native American children thrive when they are in Native American homes, irrespective of their tribal affiliation.

That's what Congress found in ICWA. That's what amici tribes say. The Brackeens want the Court to overrule Congress's legislative judgment.

Judicial activism much?

Jackson: Congress has made a decision that regulating in this area of child placement is important for preserving the integrity of tribes as self governing sovereign entities. It's not sufficient for you to say that's not true.

So how do we decide?

Jackson is doing originalism and textualism from the liberal wing. She continues to do this. She did it in Merrill v. Milligan, in SFFA v. Harvard/UNC, and now here.

and Sammy Alito is so far silent.

Interesting.

If this clown doesn't stop saying that native Americans don't have a proprietary interest in their children, I'm going to walk into a lake.

Texas Solicitor General Stone is up.

he's making the same arguments about how Congress' plenary powers only apply tribal lands and regulation of sovereign not children placement.

He's arguing that fed government can't commandeer state—but this is a supremacy clause issue ffs.

Commandeering means when the federal government forces states to carry out federal government activities or interests.

But that's not what this is. This is Congress regulating placement of Native children per its plenary power and preempting contrary state laws. Easy peasy.

For reference, Article I, Section 8, Clause 3 says Congress shall have Power to regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.

McGill is saying yeah well that doesn't apply to placement of children.

So much for originalism, eh.

Sotomayor: Plenary means all encompassing. So buddy? What the hell are you talking about. There's no categories of plenary power. Plenary power is plenary damn power.

Plenary power means all powers with every intercourse with Indians. This has been the case for 200 years.

Texas atty: child adoption isn't commerce.

Gorsuch: Healthcare is?

Texas: Yep.

Gorsuch: What about religious liberties and right to access sites off reservation?

Texas: Not commerce.

Gorsuch: ORLY?

Gorsuch is not happy with Texas' argument. And Texas SG Stone is flustered.

Sotomayor is just going through 19th century statutes related to Native Americans and asking the Texas SG if they're constitutional or not.

He's so frustrated.

Kagan asks about Texas's policy views about how ICWA harms children and does a laundry list of horrible things.

Isn't this a matter for Congress? Aren't we supposed to respect what Congress has done?

More bluster from SG Stone.

Gorsuch: So you're saying that Congress can regulation Indian children on Indian land?

Texas: Yes

Gorsuch: Well tribal lands are a checkerboard. Some kids live on Indian land. Others live next to it. Doesn't make their connection to the land weaker, so what the hell?

Gorsuch is making me like him... FOR NOW.

As @Hegemommy just pointed out to me, the challengers don't see tribes as sovereign.

I responded, Challengers see tribes as landlocked organizations. If both feet aren't on a reservation then Natives get no federal protection.

That goes against originalism and the text of ICWA.

Jackson is doing originalism again—talking about the Indian Commerce Clause and what the founders discussed when deciding to give Congress that PLENARY power.

Emphasis on PLENARY.

Jackson: At the time of the founding, commerce involved more than trade. It involved intercourse—all relationships between Natives and non-Natives.

So why should we limit that?

SG Stone: Because reasons