Opinion Day: The Supreme Court, Adoption, and Tribal Sovereignty

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Brian Lehrer: Brian Lehrer on WNYC. We're going to come back to end the show to where we started it today with some Supreme Court decisions handed out this morning now that people have had a little more time to digest them. The court issued three opinions, including one very consequential that rejected challenges to the Indian Child Welfare Act. We'll explain. That still leaves a number of cases still to be decided. We'll talk about today's opinion in the case I just mentioned, Haaland v. Brackeen, as well as some of the big cases yet to be decided. Such big cases on affirmative action, election integrity, other things.

Back with us is our June court watcher, Elie Mystal, justice correspondent for The Nation and author of the book Allow Me to Retort: A Black Guy’s Guide to the Constitution now out in paperback. Elie, thanks for being on standby for us all these decision days and welcome back to the show.

Elie Mystal: Thank you so much for having me. Last time I was on with you, Brian, I said June is the worst month of my life, and it is not turning out that way. Things are kind of okay right now.

Brian Lehrer: In this case, Haaland v. Brackeen, the challenge was to the Indian Child Welfare Act that says when Indian children, Native American children are up for adoption, preference should be given to parents in the same tribe who are also Native American. Tell us who challenged that and why, and spoiler alert, the court upheld the law.

Elie Mystal: Yes, so the Indian Child Welfare Act is one of the more important pieces of legislation in the last generation. It was made in response to basically a scourge of American parents, usually white parents adopting Native American children over the objection of the Native American tribes where these children came from. The Indian Child Welfare Act says that if a child is up for adoption, tribal sovereignty is supposed to rule the day. That means that the tribes can give preferences to members of their communities or members of other tribes before random white people in Texas.

The case in front of the court today involved random white people in Texas who had adopted a Native American child. They were in foster care. This was an adoption that was approved by the Native American birth parent, which made this case, I think, more different than a lot of other situations where this time the birth parent was in favor of this particular adoption. But under ICWA, the tribes intervened, and by a vote of 7-2, Amy Coney Barrett writing the majority opinion, the court upheld the Indian Child Welfare Act as a constitutional use of congressional power.

They rejected the claims of the plaintiffs that the Indian Child Welfare Act discriminated against them, and I think even more importantly, they rejected on standing the really random wacky claim coming out of Texas, that Texas itself could argue that the equal protection clause was violated on behalf of Texas citizens in some really crazy kind of legal hoop jumping argument.

The Supreme Court rejected that argument out of hand. It was a complete victory for the Indian Child Welfare Act specifically and Native tribal sovereignty generally supported by seven members of the Supreme Court.

Brian Lehrer: It was a white couple who said they were being discriminated against by this preference that Native couples get for Native American child adoption. I wonder how surprised you are that this came out 7-2 with Justice Amy Coney Barrett writing for the majority and only Thomas and Alito in dissent.

Elie Mystal: I'm not as surprised as I was last week over the Voting Rights Act, [laughter] but it was still surprising. Look, I always knew that Neil Gorsuch was going to side with the liberals on this case. We can talk about this later, but Gorsuch is generally the biggest defender of Native sovereignty on the court and maybe in American history. I always knew we had Gorsuch, but that only allows me a count to four.

We were going to need to get one of the conservatives. I was worried about Roberts because he had voted-- he seemed uncomfortable with the Indian Child Welfare Act in the past. He voted with the majority. I was worried about Kavanaugh because he also seemed uncomfortable with the Welfare Act. He voted with the majority, but he voted with the majority in such a way as to set up what will be the next challenge to ICWA, but then there's Amy Coney Barrett who as many of your listeners know, is herself white and has herself adopted children of color.

You never know if that kind of personal preference that she has, that personal lifestyle that she lives might have made her perhaps more sympathetic to the white couple in Texas trying to adopt this native child, but she wrote the majority opinion. They let her write the majority opinion and it was I would say complete. She very clearly says that the court rejects all of the claims made by the plaintiffs and the state of Texas, either on the merits or on that legal jargon word of standing. Basically saying that Texas doesn't have even the right to sue in some of these situations.

That was I wouldn't say not as shocking as Robert's suddenly defending the Voting Rights Act, but pretty damn surprising and welcome. I think I will give ACB some credit here. I think it speaks well of her that this is probably a decision that she doesn't personally agree with, but she faithfully applied the law. The idea that Congress didn't have the power to enact the Indian Child Welfare Act, she just rejects out of hand. Give her the credit for saying that and being the person to actually write it down.

Brian Lehrer: Listeners, I wonder if anybody listening right now is or has ever been personally affected by the Indian Child Welfare Act. We can take some phone calls on this. 212-433-WNYC for Elie Mystal, justice correspondent for The Nation, but we can also expand it to some of the other Supreme Court decisions that we're still awaiting.

Tomorrow is another decision day. We're going to put Elie on pins and needles again for tomorrow, and anything else you want to ask that's related. 212-433-WNYC, 433-9692. I want to make a potential connection between this and one of the big cases that we're awaiting a decision in because this one involved preferences granted to a group to address abuse and past discrimination by the US government, Native Americans.

The cases on affirmative action in college admissions are still to be decided, and you've been pretty pessimistic about where the court will come down on that issue. Does this ruling give you any hope about that?

Elie Mystal: Brian, look, every single argument that Barrett makes in defense of ICWA and Gorsuch makes in defense of this law could be applied to the affirmative action situation. Every single argument that goes to the power of Congress to use policy to ameliorate racial discrimination and oppression that's happened in the past, every single one of those arguments can be used in the affirmative action context. Do I think they will? No. Do I think that they're dripping hypocrites? Yes. Where I think they'll shave it is that ICWA is a congressional statute, affirmative action is a policy enacted by colleges and universities.

Now, from a certain perspective, that should make the Supreme Court less likely to overturn affirmative action because it's not even an act of Congress. It's not even-- and sometimes people forget this, it's not that affirmative action is mandated. It is a choice made by the universities. When we're talking about overturning affirmative action, what we're saying is that it's the one thing universities can't do. They can look at whether or not a person has a legacy status. They can look at whether or not a person is good at basketball. They can look at whether or not a person plays the piano super well, but they can't look at whether or not a person has overcome racial discrimination and oppression in their lives.

It's bonkers that the Supreme Court would have even a say in this, much less to overturn the admissions policies of universities on this, but I still think they're going to do it. I think that the hypocrisy when you link up what they'll do on affirmative action with this case will be rife. However, you know, I also thought they were going to- -overturn the Voting Rights Act. I guess my confidence that they're going to overturn affirmative action maybe has gone from 99% sure to like 95% sure, but I would love to be 0-3. I would love to be wrong again when that case comes down.

Brian Lehrer: Anything you want to say about the other two decisions handed out today? These are not ones that have gotten a lot of public attention, but another one also centered on tribal sovereignty. In that case, it was 8-1 against tribal immunity in a bankruptcy case and Justice Gorsuch, who you just identified as a big defender of tribal sovereignty was the lone dissenter. The other one was completely different. Do you want to say anything else about this other tribal-related case?

Elie Mystal: Absolutely. This was a bankruptcy case, and it was a question of basically whether or not US bankruptcy law can apply to Native Americans, to tribal lands. The court 8-1 said, “Yes, because the bankruptcy law explicitly says that if Congress will enact this law over the sovereignty of any other entity or institution claiming sovereignty.” It's explicit in the law about how bankruptcy works. I think that's a good idea. I think that they got that case right. I'm a big defender of Native rights, but I'm also very against tax shelters.

I think that having bankruptcy code apply to everybody is the right call, but as you point out Brian, Gorsuch is the lone dissenter here. Since he's come on the court, Gorsuch has defended the sovereign rights of Native tribes in a way that I just don't believe we've seen ever in American history on the Supreme Court. He has a righteous stand here. I say a lot. I just wish Gorsuch thought women were deserving of the same kinds of rights that he thinks Native Americans are. I wish he thought Black people were the same kind of people as he thinks Native American people are. That would make him a good justice.

Unfortunately, he doesn't seem to extend his empathy and understanding to all the other racial minorities in this country, but on the issue of Indian sovereignty, Gorsuch is probably the best in US history and so you give him credit for that.

Brian Lehrer: George in Brooklyn wants to say something about the Indian Child Welfare Act decision. George, you're on WNYC. Hello.

George: Hi, Brian. Thank you so much and I love the program, longtime listener. I can't remember your guest's name, but-

Brian Lehrer: Elie Mystal.

George: -I echo everything he says. Thank you. I echo his comments about Gorsuch and his ruling on ICWA. The one thing I haven't heard, and I think it's important, is that the Texas group was also trying to make it a race-based case. Native nations are a sovereign entity in this country. We have three sovereign entities, the federal, the state and tribal governments. By trying to make it race-based, they were denying their tribal sovereignty and not seen as a political entity. This is a resounding case for Native nations across the country. It's a total shock, but it's also important because we are retaining some tribal sovereignty. They've lost a lot, but we’ve retained something today. It's really incredible. I just wanted to add that to the conversation.

Brian Lehrer: George, thank you very much. We have a caller coming in who says that she has some personal family experience with ICWA, the Indian Child Welfare Act. Let's take Geneve in Warwick, New Jersey.

Genevieve: Genevieve.

Brian Lehrer: Oh, Genevieve, I'm sorry. You're on WNYC. Hello.

Genevieve: Hi, yes. One of my cousins has now adopted a child. The girl was four or so, abandoned by her mother, but my cousin was a deep and long friend of the family. When she was put into the welfare system, with knowledge of the family, he went to volunteer to take her and he had practically to waive the ICW Act in front of them to get them to allow him to take this girl rather than have her be put out to non-Indian family.

For this child, it made an immense difference and children are ripped away from family and culture. As a matter of fact, the practice of taking Indian children is still taking place quite a bit, especially in some of their northern states. It's an ongoing issue. It is definitely a matter of tribal sovereignty because there's a history of treaties with tribes. There are different rules about tribal sovereignty, and to cast it as a race issue is entirely wrong and incorrect.

Brian Lehrer: Genevieve, thank you. Thank you so much. We can hear the emotion in your voice and how much this meant to your family and to the girl to not be ripped away from her culture as you described it and how they had to explicitly hold up the Indian Child Welfare Act in your case as you describe it. That's really something to get that kind of personal testimonial, Elie, huh?

Elie Mystal: Yes. Look, the Indian Child Welfare Act was a response to a huge problem, this huge problem of generally white parents raiding tribal communities and taking their children. The stats, I don't remember them off the top of my head, but it's somewhere north of ridiculous the percentage of Indian children who were ripped away from their communities before the Indian Child Welfare Act was passed.

Look, by the way, I am all for adoption. I know that a lot of the white parents who want to adopt these babies are loving homes and would provide a loving home for the children. I don't think that the parents who want to take these children are bad people in any way writ large, but the question is about sovereignty. The question is about whether or not the Indian tribes have a right to decide for themselves who gets to adopt the children.

One of the ways that I explained this case when it was being argued, was that it would be like a Texas family saying, “I want to adopt that French baby,” and France saying, “Well, actually, we have a French family that wants that,” and I’ll say, “Well, no, I'm Texas. I just get to adopt the baby that I want,” and France going, “Well, no, we're France. Go away.”

That's what this is. This is the tribe saying, “Well, I understand that you might want to, but we're going to have our own rules about who gets to adopt the children from our culture.” That is entirely not only reasonable, but vital and necessary, and that's what ICWA stands for.

Brian Lehrer: All right. Listeners, many of you who never heard of the Indian Child Welfare Act until this conversation, now you know the significance of a Supreme Court decision that came down today. Tomorrow will be another decision day. We may be talking to Elie Mystal, justice correspondent for The Nation again tomorrow. We'll see what they come down with and if we think it's segment-worthy. Elie, thank you as always. Get a good night's sleep.

Elie Mystal: Thank you so much for having me. I will be back here better than ever tomorrow to see what they have next.

Brian Lehrer: Listeners, that's it for today's show, but I want to invite you to join me tonight at 8:00 here on the station for our third annual Lehrer Prize for Community Well-Being award show. The theme for this year is social and emotional learning. We will meet the three honorees who we have selected for this year's Lehrer Prize for Community Well-Being. Plus a special appearance from the United States Attorney General, who thinks deeply and speaks publicly about this issue. Join me back here tonight if you'd like for the Lehrer Prize ceremony at eight o'clock here on WNYC.

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