If women and Black people could get Neil Gorsuch to see them the same way he sees Native Americans, this whole country might be a better place. If the federal government could get Gorsuch to treat it with the same respect as he treats tribal governments, we might be allowed to have legislation aimed at combating climate change in our lifetimes. Alas, he does not. But Gorsuch is the staunchest defender of tribal sovereignty and Native American rights perhaps in the history of the Supreme Court, and I choose to be thankful for that.
The latest additions to Gorsuch’s impressive canon of pro-tribal decisions came in two opinions handed down by the Supreme Court on June 15. The first case was Haaland v. Brackeen, which involved a conservative attack on the Indian Child Welfare Act (ICWA). The other case was Lac du Flambeau Band of Lake Superior Chippewa Indians v. Coughlin, which tackled the question of whether US bankruptcy law could be applied to tribal nations. Gorsuch sided with tribal governments both times: He was part of a 7-2 majority that upheld the ICWA in Brackeen and the lone dissenter in an 8-1 ruling that pierced tribal sovereignty in favor of general bankruptcy law in Coughlin. Tribal sovereignty always prevails, according to Gorsuch.
Haaland v. Brackeen was by far the more important of the two cases. The Indian Child Welfare Act was passed in 1978 to address the epidemic of white families’ adopting Native American children and taking them out of their tribal communities, over the objection of those communities. The ICWA mandates that the wishes of tribal nations take precedence when removing a Native child from their birth parents, and that preference should be given to placing children with Native families. Prior to the ICWA, over 25 percent of Native children were being removed from their birth parents, and 85 percent of those children were placed outside their families and communities.
In Brackeen, three non-Native couples who wanted to adopt Native children, along with the birth mother of one child and the state of Texas, challenged the constitutionality of the ICWA. They argued that the law exceeded congressional authority, that it violated the principle of states’ rights by “commandeering” family law proceedings in state courts to enforce a federal statute, and that it violated the Equal Protection Clause of the 14th Amendment by “discriminating” against non-Native families eager to adopt Native children. The case was set up not only to overturn the ICWA and pierce tribal sovereignty but also to repurpose the 14th Amendment into a weapon that white people could use to attack efforts at restorative justice for minority groups.
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But the case didn’t go that way. Writing for the 7-2 majority, Justice Amy Coney Barrett, herself a white adoptive parent of children of color, stated bluntly: “[T]he bottom line is that we reject all of petitioners’ challenges to the statute, some on the merits and others for lack of standing.”
The court ruled that the ICWA is well-grounded in Congress’s explicit constitutional authority to regulate Indian affairs, and that state courts are not “commandeered” when they’re asked to enforce federal law. The court rejected the equal protection argument because, the majority argued, the state of Texas had no right to sue under the state’s kooky theory that it could represent the equal protection rights of all its citizens.
It was a near-total victory for the ICWA—“near” because alleged attempted rapist Brett Kavanaugh joined with the majority opinion but wrote separately to indicate that he would hear an equal protection argument brought by an appropriate litigant. (That litigant would be a white couple looking to adopt a Native child who were denied by a state court proceeding, as opposed to this case where the adoptive parents challenged federal officials, not state court rulings.) Still, I think if Kavanaugh had the votes to overrule the ICWA on equal protection grounds, the court would have done so here. He (along with Justices Clarence Thomas and Sam Alito, who both dissented) might want a second bite at the apple, but I don’t think it would change the outcome.
Gorsuch joined with Barrett’s opinion, but wrote separately to essentially remind everybody how poorly this country has treated Native Americans and argue that tribal sovereignty is one of our core constitutional principles, even though the federal government has often and shamefully ignored it. Gorsuch actually referred to his concurrence in Brackeen during his lone dissent in the other case, Coughlin.
I’m a big fan of Gorsuch’s defense of Native rights, but I actually think the majority more or less got it right in Coughlin, because the facts are pretty outrageous. The Lac du Flambeau Band operates a business, Lendgreen, that extended a payday loan to a man named Brian Coughlin. Coughlin later declared bankruptcy under Chapter 13 of the Bankruptcy Code, which is supposed to trigger an automatic stay on the bankrupt person’s creditors. But Lendgreen kept trying to collect on Coughlin’s debts. The band argued that, as a sovereign tribal nation, it should not be subject to US bankruptcy laws. The court disagreed. Writing for the majority, Justice Ketanji Brown Jackson said that the Bankruptcy Code “unequivocally abrogates the sovereign immunity of any and every government.”
I think that has to be right. If a US citizen declares bankruptcy under US law, it wouldn’t make a lot of sense for a French creditor to pop up and say, “Cool story, gars. But I still want my money, s’il vous plaît.”
But Gorsuch says his colleagues are wrong, and the way he does it gives real insight into why Gorsuch is a defender of Native American rights. Gorsuch says that the bankruptcy code specifically pierces the sovereign immunity of “foreign” governments and “domestic” governments, but that tribal governments are neither. He writes: “Instead, the Constitution’s text—and two centuries of history and precedent—establish that Tribes enjoy a unique status in our law.”
For Gorsuch, in other words, Tribal nations are uniquely protected by a constitutional promise (often ignored) that they will be left alone. That makes them different from, say, the French, to whom the Constitution promises no special recognition. And it certainly makes them different from Black people, who have no government apart from the one organized by our white oppressors. Indeed, even if Black people did organize some kind of distinct and sovereign political entity (I nominate Michelle Obama as our interim queen), it would not be one recognized by the Constitution, what with the Constitution being a 250-year-old enslaver’s manual, and backward time travel not being allowed by the laws of physics.
Gorsuch refuses to apply his heady and progressive views on Native American rights to everybody else, because the white guys who wrote the Constitution never said, “Also, we should respect the rights of Black people.” He won’t even apply a full and robust reading of the 14th Amendment to Black people, because the white guys who wrote it didn’t specifically say, “We are writing this to protect Black people from the encroachment on their rights by white folks like my racist cousin Thom, whose ass I just kicked at Gettysburg.” There are very obvious reasons why the white guys who have been allowed to write constitutional text didn’t explicitly mention the “immunity” of Black people from white foolishness or the “sovereignty” of women over their own bodies, but Gorsuch ignores all of that. “Indians” are mentioned in the Constitution; “Black people” are not, and for Gorsuch that is enough.
Gorsuch’s closing in the ICWA case is both thrilling and heartbreaking. He writes:
Often, Native American Tribes have come to this Court seeking justice only to leave with bowed heads and empty hands. But that is not because this Court has no justice to offer them. Our Constitution reserves for the Tribes a place—an enduring place—in the structure of American life.… In adopting the Indian Child Welfare Act, Congress exercised that lawful authority to secure the right of Indian parents to raise their families as they please; the right of Indian children to grow in their culture; and the right of Indian communities to resist fading into the twilight of history. All of that is in keeping with the Constitution’s original design.
It’s thrilling because we’ve probably never had a justice who speaks with this passion and clarity about Native American rights. But it’s heartbreaking because… I know he’s not talking about me. I know Gorsuch has no justice to offer me. I know what’s “in keeping with the Constitution’s original design,” and I know that Gorsuch will work tirelessly to keep that suffocating design wrapped around my neck for the rest of his natural life.
Rights are not a zero-sum game. Gorsuch’s committing to arguing for Native rights in no way detracts from my own. What’s diminishing is Gorsuch’s belief that people not explicitly mentioned in the white man’s Constitution can be ignored.
