Thread by @RewireNewsGroup

Deputy SG Kneedler is up for the DOJ:

He is arguing that Congress has full authority to regulate the affairs of Indians. Plenary means plenary. Why are we here.

Bottom line: Congress's actions must be rationally related to furthering the interests of Indians.

Regulating placement of children is rationally related to furthering the interests of Indians.

Let's wrap it up and go home.

Alito asks whether or not Congress could prioritize providing Native Americans with covid vaccines and why that's different.

As @Hegemommy just noted to me, the takeaway is that conservatives see Native children as a commodity. This is about a domestic supply of infants.

Honestly, Kneedler is floundering and Jackson is coming to save him by telling him what he's arguing. LOL.

Prelogar should be the one to argue all critical cases like this.

Kneedler is a bit out of his depth it sounds like.

This is a good document explaining how ICWA works and how the statute places children in order of preference. nicwa.org/wp-content/upl…

The preference is for Native families and the child's tribe. The Brackeens think that's unfair to white families.

That's what this is about.

It's important to note that ICWA was created to protect Native children in the foster system. Native children fare very well in the current system. They don't age out of the foster system as much as non-Native kids. 1/2

And with Texas, where a federal court found that the foster care system results in kids who age out of the system having levels of PTSD comparable to combat vets, it seems sensible to keep Native kids on Native lands.

But Texas wants Native kids to go to white families. 2/2

Also, notably, ICWA has become the child welfare standards for nearly half the states in this country. It works extremely well.

This case isn't about the best interest for the child.

IT'S ABOUT WHITE GRIEVANCE AND ENTITLEMENT TO INDIGENOUS CHILDREN.

Worth noting that the best interest for the child for Texas/Brackeens is bringing them up according to white middle class standards.

It's white saviorism, which Julie Brackeen admitted in a blog post, per Rebecca Nagle's reporting.

She said she sees adoption as service to God.

(I did a lot of research into how horrific the Texas foster care system in connection with Texas's threats earlier this year to remove trans kids from their homes and funnel them into Texas's foster system which is rife with abuse.)

Jackson is back talking about the Framers and their intent and the 1978 Congress that passed ICWA and their intent. And their intent was to govern all Indian affairs.

She is the Court's historian now and I'm here for all of it.

Textualism and originalism: you're soaking in it.

Gershengorn is up arguing for Petitioners and he's way better than Kneedler.
Alito says "by placing a child of one tribe with another tribe, aren't you saying all tribes are fungible?

Gershengorn responds: All federally recognized tribes share a common political relationship with the United States. that's what renders it political rather than racial.

Alito says it doesn't make sense because before colonizers showed up, tribes were at war with each other.

yeah Sam, but then white folks showed up, started murdering people willy nilly, and and indigenous folks found a common interest. Surviving settler colonialism.

ffs

And now Alito is back to asking about COVID vaccines and giving Native American people preferences and would that. be constitutional.

Gershengorn: "We're giving vaccines to Indians" would be a racial classification, not a political one.

Gershengorn cont'd: But if Congress said we're giving vaccines to federally recognized Indian tribes first because we find on reservations that there's a particular problem because they don't have access to healthcare, that would be defensible.

Congress has been legislating to help Indians since the beginning. It's in the Constitution because tribes are treated like political entities. They're treated parallel in the commerce clause with foreign nations and states.

Congress has routinely singled out NAs for legislation

Sotomayor: But people are worried about the children. Placing children with tribes may help the tribe but what about the children. What do yo say to that?

Gershengorn: I cannot stress enough that Congress found that ICWA WAS in the best interest in the children.

Sam Alito is really concerned about placing children with another tribe if their own tribe or extended family is unavailable. Again with the fungibility of trials.

Gershengorn: This mostly comes up with individual Native children living on the reservations on another reservation. This is not some random tribe in Maine that gets a preference for a Native child in Arizona over a white family.

Gershengorn also says he has seen no case like this in any of the briefing so it's a red herring.

No case at hand where a random tribe plucked up a Native child from an unrelated tribe.

Arguments are drawing to a close. Please join @Hegemommy and me for a live stream about #BrackeenVHaaland at 2 ET!