Thread by @ishapiro

1. On Haaland v Brackeen, this morning's big SCOTUS case on Indian law: This was a complicated case, both factually and legally, and it ends with a muddled and unfortunate decision. As Justice Barrett painstakingly explains in her majority opinion...

2. the Indian Child Welfare Act “requires a state court to place an Indian child with an Indian caretaker . . . 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.”

3. The three custody disputes at the heart of Brackeen, as well as a brief that I filed at the cert stage of this case, illustrate the too-frequently-sad consequences of that law. @CatoInstitute @TPPF @GoldwaterInst @TimothySandefur cato.org/sites/cato.org…

4. It’s a close call whether Cong, in exercising its const power over Indian affairs, can intrude on state family law, requiring, as Gorsuch concurs, “a bird’s-eye view of how our founding document mediates between competing federal, state, and tribal claims of sovereignty.”

5. And it may well be that the plaintiffs here sued the wrong defendants: federal officials rather than the state agencies that enforce ICWA’s placement preferences. But that doesn’t resolve what Kavanaugh concurs separately to recognize as a “serious” equal-protection issue...

6. whereby “a child in foster care or adoption proceedings may in some cases be denied a particular placement because of the child’s race.” If the Constitution isn’t a suicide pact, it also shouldn’t be the facilitator of race-based custody proceedings involving US-citizen kids..

7. who may never have set foot on Indian lands, merely because the children happen to have some quantum of Native American blood.

PS - Kavanaugh's short concurrence is a favorable sign regarding the challenges to racial preferences in college admissions.

-FIN