This past term, the Supreme Court handed down two major decisions about Native American law. In Arizona v. Navajo Nation, the Court ruled 5-4 that a treaty did not require the U.S. Government to take affirmative steps to secure water for the Navajo Nation; and in Haaland v. Brackeen, the Court upheld the Indian Child Welfare Act (ICWA). In this episode, Native American law experts Professor Marcia Zug of the University of South Carolina Law School and Timothy Sandefur of the Goldwater Institute join to help unpack these key Native American law cases. They also dive more deeply into one specific member of the Court—Justice Neil Gorsuch—and his unique stance toward how the Constitution applies to issues relating to Native American tribes—from his dissent in Haaland, to his majority opinion in the McGirt v. Oklahoma case from 2020, and more. Host Jeffrey Rosen moderates.
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Today’s episode was produced by Lana Ulrich, Bill Pollock, Samson Mostashari. It was engineered by Bill Pollock. Research was provided by Lana Ulrich, Samson Mostashari, Tomas Vallejo, Connor Rust, Rosemary Li, and Yara Daraiseh.
Participants
Marcia Zug is Miles and Ann Loadholt Professor of Family Law at the University of South Carolina Law School where she teaches family law and American Indian law. She has also advised national organizations such as the Women’s Refugee Commission, the National Indian Child Welfare Association and the Southern Poverty Law Center on the legal issues facing Native American and immigrant families. Her recent book is Buying a Bride: An Engaging History of Mail-Order Matches.
Tim Sandefur is the vice president for legal affairs at the Goldwater Institute’s Scharf-Norton Center for Constitutional Litigation and holds the Duncan Chair in Constitutional Government. He is the author of more than 50 scholarly articles on subjects ranging from Indian law and antitrust to copyright law. His most recent book is Freedom’s Furies: How Isabel Paterson, Rose Wilder Lane, and Ayn Rand Found Liberty in an Age of Darkness (2022).
Jeffrey Rosen is the president and CEO of the National Constitution Center, a nonpartisan nonprofit organization devoted to educating the public about the U.S. Constitution. Rosen is also a professor of law at The George Washington University Law School and a contributing editor of The Atlantic.
Additional Resources:
- Arizona v. Navajo Nation (2023)
- Haaland v. Brackeen (2023)
- McGirt v. Oklahoma (2020)
- Marcia Zug, “ICWA’s Irony”, American Indian Law Review (2021)
- Tim Sandefur, Brief Amici Curiae of Goldwater Institute in Support of State of Texas and Brackeen, Haaland v. Brackeen
- Adam Liptak, “Justice Neil Gorsuch Is a Committed Defender of Tribal Rights”, The New York Times (June 15, 2023)
- John Dossett, “Justice Gorsuch and Federal Indian Law”, American Bar Association (Sept. 1, 2017)
Excerpt from Interview: Marcia Zug discusses the issues of ICWA.
Jeffrey Rosen: Marcia, tell us why you disagree that ICWA uniquely among Indian law is a race-based classification. And if the court does resolve this in the future, how do you expect the court to resolve the issue?
Marcia Zug: One of the problems with this idea that we should see who is connected to the tribe is that so many of these children are you know, they could be removed at birth. And then we say that, "Oh, well, you could have no connection to the tribe." There's a doctrine called the Existing Indian Family Doctrine, which has now been repudiated, but it was based exactly on that idea that, "Oh, ICWA shouldn't apply to children if the family that they were living with is not the Native family, right?" So a child has a Native parent and a non-Native parent. They were living with a non-Native family. They got removed. That kid doesn't know anything about their native heritage. It shouldn't apply.
This was rejected because this isn't about that. And this is where a lot of people push back, it isn't just about the Indian child. It's about the history of this and what's happened to the tribes. There was a deliberate centuries-long policy of destroying tribes by removing their children by assimilating them.
And the result is that you often have a situation where children may not have a connection to their tribal families and ancestors. But once we have this break in the family, 'cause that's what we're talking about under ICWA cases, right, where the child's either been removed or the child's being put up for adoption. So, they're going to go to a new home. It's at that point the question is, "Where should they go?" And if these are children who are Native under the act, then the idea is that it is better for native children to have a connection with their culture, with their people. And there are lots of studies showing this.
The studies on the ICWA show that it's been highly protective of children, that it's not this law that rips children away from loving homes and puts them in unsafe situations. It's typically keeping, I mean, historically, it's about keeping the state from imposing its idea of what's best for Indian families on them.
I mean, there are still cases. There was a case out of South Dakota a few years ago brought by the ACLU because there was a judge there, 100% of the Indian child cases that came before him. He terminated the parental rights. None of these children were returned.
As a family law matter, that doesn't make sense unless we're saying that all Native families are just so much worse than any other family that this type of ruling would be justified. So, what ICWA does is it recognizes this long history of racism towards Indian families and different methods of trying to circumvent it and gives them a fighting chance, gives Native families a fighting chance to keep their children. If they're unsafe, the kids can be removed. Nothing in ICWA stops that from happening.
Excerpt from Interview: Tim Sandefur explains Justice Gorsuch’s argument and why Justice Thomas and Alito disagree with it.
Tim Sandefur: Well, you hinted at it when you used the phrase three different commerce clauses. The Constitution actually contains only a single commerce clause, and the dispute is over whether it should be read in three different ways. So the text of the clause says, "Congress has power to regulate commerce with four nations and among the several states and with the Indian tribes." So uses the word commerce only one time.
And for that reason, as a matter of grammar, one is inclined to interpret that as meaning the same thing with respect to states, foreign nations, and Indian tribes. What falls within the definition of commerce, whatever that category might include, is the same with respect to those three things as a matter of grammar. But Gorsuch disagrees with that. He says, "No, that's, that's not the case." What qualifies as commerce with respect to states or foreign nations might be different than what qualifies as commerce with respect to Indian tribes.
...
He believes that the term commerce, when it comes to the Indian tribes, includes not merely buying and selling products and services, which is what we would normally expect the term commerce to mean and what the court has said it means when we're talking about commerce among the civil states. He says, "It also includes a broader power, a power to regulate the American peoples, American citizens' actions with respect to Indians, even if they do not qualify as commercial trade, and so forth."
Now, that's a point that Justice Thomas disputes. He says, "There's no textual basis for that. It violates the rules of grammar. There's no proof in the records of the authorship of the Constitution, the Philadelphia Convention debates, anything like that." There's no proof that that was what the founders intended to do. And in fact, the evidence suggests quite the opposite, because the Articles of Confederation before the Constitution said that Congress had power to regulate Indian affairs. And we know from the records of the Philadelphia Convention that the framers chose to eliminate the word affairs and chose instead to combine the power with respect to Indian tribes into this single sentence, regulate commerce among the several states with foreign nations and with the Indian tribes.
You might say, it seems like an abstruse, sort of obscure kind of an argument that involves some grammatical tinkering and hyper-specification. I mean, that's a huge difference. That's a very important point. Does Congress's power to regulate commerce mean just the power to regulate buying and selling, or is it more expansive? Does it mean Congress has authority to regulate basically any kind of personal behavior of non-Indians with Indians?
Now, Justice Thomas, incidentally, he's written on this subject in previous cases most notably in a case called United States versus Lara, that one of the big problems with federal Indian law today is that we use these broad sort of generic terms, instead of looking specifically at the history of particular tribes. We refer to the sovereignty of tribes just sort of in a general all-purpose way. And he says what we ought to do if we're serious about interpreting this provision, what we ought to do is look at the history of particular tribes and their treaties because not all tribes have the same arrangements with respect to the federal government.
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