Eagle feathers have long been important in Native American religious practice, but federal law generally bans possession of eagle feathers under stringent penalties. While the law authorizes the Interior Department to exempt Native American religious use, the Department has sometimes been stinting and ungenerous in its granting of permission. Although the Fifth Circuit ruled in favor of Indian worshipers in a big 2014 case under the Religious Freedom Restoration Act of 1993, uncertainty continues to linger. Now advocates have petitioned for a rulemaking that would expand the exemption from federally recognized tribes only to all sincere believers including members of state-recognized tribes, and would set the exemption on a firmer legal footing for the future by taking it through the notice and comment process. [Joseph Davis, Federalist Society, earlier; End the Feather Ban advocacy page]
“For Congress to impose a racialized and non-neutral regime on parents and children is not only unwise and unfair, but unconstitutional.” The Cato Institute has joined an amicus brief challenging the Indian Child Welfare Act (ICWA) in the Fifth Circuit case of Brackeen v. Bernhard. I’ve got more details in a new post at Cato at Liberty. Earlier on ICWA here.
I’ve got a new piece at Ricochet on the problems with the Indian Child Welfare Act of 1978, which a federal judge struck down as unconstitutional in October in a ruling (Brackeen v. Zinke) likely to be appealed. Excerpt:
One effect is to give tribal governments dangerous power over persons who never willingly submitted to their authority, including persons who have never set foot in Indian country. A couple briefly connect at a bar in Boston or Brooklyn or Baltimore one night and a child is born as a result. The father may not have mentioned at the time, indeed may only imperfectly remember, that as a child he was inducted into an affiliation with some faraway tribe toward whose leadership he has long felt indifferent or estranged. But ICWA covers as an “Indian child” any biological child of a tribal member so long as that child is “eligible for membership” in a tribe.
Sorry, Dad – and sorry, total-bystander Brooklyn Mom — but under ICWA that distant tribe now has a lot of power over your future. You are not necessarily free to make an adoption plan with some trusted member of your local community. Instead, you must submit to a distant tribal authority and prepare for the child’s possible “placement … in … homes [that] reflect the unique values of Indian culture.” What about your own cultural background as a non-Native parent, along with that of your relatives who may have been helping care for the child during his first years? Your youngster may have spent his life thus far immersed in that other culture — perhaps Korean-American, or Dominican, or African-American, or Eastern European. But the law cares not. In fact, it encourages as “ICWA-compliant” placement of your child with any Indian tribe around the country, however remote from that of either biological parent’s, in preference to any non-Native placement, however well matched to the circumstances of the child’s life thus far.
The law I really despise is the ICPC, the Interstate Compact for the Protection of Children. It was originally intended to stop states from dumping foster children in other states to take advantage of their looser welfare policies.
First, it would seem to me that this should be the price paid for having loose welfare policies, but beyond that the real effect of the law is horrendous.
What the act does is make it hard to move children to caregivers out of state without that state’s permission or agreement. That agreement can take many months. A court action to return children to parents or name the state as their conservator has to be completed within a deadline, usually one year.
So, I have several cases where the parents’ families are from out of state. They have a large family network in that other state. But we can’t move the children to that family and have to put them in foster care. By the time the ICPC is completed, the foster family has a vested interest in the children and now they are fighting, and often succeed, in keeping the children away from the blood family.
I find this result to be repulsive, and that result is not at all unusual. I have a case that just ended where the mom and the dad’s family in New Hampshire are both very fine with middle class homes and lots of family support, yet because the children had been kept in foster care the courts don’t want to “disrupt” their lives again. It’s just about the most asinine government policy ever.
This gets me curious about ICPC. Other comments about its history and workings, positive or otherwise, are welcome.
- Antitrust legislation once targeted the unstoppable rise of chain stores A&P and Sears, both now bankrupt [my new Cato post, quoting Joe Nocera, Bloomberg (“The next time you hear somebody say that the dominance of Walmart or Amazon or Facebook can never end, think about Sears. It can — and it probably will.”)]
- When you wish upon a suit: visitor grabs Disney cast member and screams at her after she asks him to move out of parade route, later pleads no contest to disorderly conduct, now wants $15,000 [Gabrielle Russon, Orlando Sentinel]
- Tomorrow (Thurs.) at noon Eastern, watch a Cato panel on “Coercive Plea Bargaining” with Scott Hechinger of Brooklyn Defender Services, Bonnie Hoffman of the NACDL, and Somil Trivedi of the ACLU, moderated by Cato’s Clark Neily. Could you resist taking a plea bargain if faced with a false accusation? [Marc John Randazza, ABA Journal]
- “I am a Democrat. But this may be the dumbest thing I have seen…. the Speech or Debate Clause makes about as clear as anything in the Constitution that a court cannot enjoin legislative officials from taking a fundamental legislative action such as a vote.” [Howard Wasserman on suit by Sen. Jeff Merkley (D-Ore.) asking court to, among other things, order delay of Senate vote on Kavanaugh nomination]
- An ideological screen for CLE? Following demands from tribal attorneys, Minnesota bar authorities order shelving of continuing legal education class on Indian Child Welfare Act developments taught by attorney Mark Fiddler, who often handles ICWA cases on side adverse to tribes [Timothy Sandefur]
- Left-leaning Florida Supreme Court nixes plan to let incumbent Gov. Rick Scott fill vacancies, entrenching its leftward lean for a while at least depending on outcome of governor’s race [Spectrum News 9]
How efficient is social media in spreading viral-junk misinformation about the law? Well, the following post about Tuesday’s two-page Supreme Court ruling in Brakebill v. Jaeger, a case about voting procedures in North Dakota, has gotten more than 18,000 shares as of this morning:
1. Brakebill was not Justice Kavanaugh’s first ruling. If you so much as glance at the Court’s opinion, it’s hard to miss its second sentence: “JUSTICE KAVANAUGH took no part in the consideration or decision of this application.”
2. There is no indication that the vote was 5 to 4. Liberal Justices Sonia Sotomayor and Stephen Breyer did not join the dissent.*
3. Justice Ginsburg’s dissent contains no language even remotely like that put within quotation marks here. Her tone is technical rather than indignant, and she does not challenge anyone’s motives as illegitimate.
4. The Court did not issue a decision upholding the laws. It was a denial of an application to vacate a stay, not a ruling on the merits.
And we haven’t even gotten to the merits! Three and a half days after posting, its author has not seen fit to correct any of his errors.
Here’s a rule of thumb about social media: the more anger, the less accuracy. More on viral junk and thinking before you share here.
* A reader on Twitter points out that in the absence of a signed majority opinion, we can’t know for sure that the vote against vacating the stay necessarily came out 6-2; we know only that if there were other Justices who wanted to vacate the stay, they declined to join the Ginsburg-Kagan dissent. I’ve corrected the text above accordingly.
Our September 20 Cato legal panel on the Indian Child Welfare Act (more) was more timely than I could have imagined. In the federal case of Brackeen v. Zinke, discussed on the panel, Judge Ryan O’Connor of the Northern District of Texas on October 4 declared major provisions of ICWA unconstitutional on multiple grounds including equal protection and anti-commandeering doctrine. More: Timothy Sandefur; Matthew Fletcher, TurtleTalk; Emma Platoff, Texas Tribune; John Kelly, Chronicle of Social Change.
Appeal is likely. Just before the decision, the public-radio-associated program Native America Calling had a program showcasing tribal advocates’ views. I’ve written about the Act, including its constitutional and moral infirmities, here and, as part of a Cato Unbound symposium, here.
“Passed in 1978, the Indian Child Welfare Act (ICWA) was intended to stop abusive practices by state and federal officials, who often removed Native American children from their families without sufficient justification. But today, ICWA is the subject of litigation in federal and state courts by challengers who argue that it imposes race-based restrictions on adoption and makes it harder for state officials to protect Native American children against abuse and neglect.”
On September 20 I moderated a Cato discussion of recent developments and upcoming challenges to ICWA, presented by Timothy Sandefur, Vice President for Litigation at the Goldwater Institute and author of Escaping the ICWA Penalty Box; Matthew McGill, attorney for plaintiffs in Brackeen v. Zinke, a major ICWA lawsuit under way in Texas; and Charles Rothfeld, who represented the birth father in the important ICWA case Adoptive Couple v. Baby Girl. Earlier on ICWA here.
- Peer-to-peer car sharing platforms could reduce the costs of car usage, unless elements of rental car industry manage to strangle it through regulation [Jonathan M. Gitlin, ArsTechnica on Illinois Gov. Rauner’s veto of a bill to cripple startups] Are we headed toward a legal requirement that cars be designed to sense that a driver has high blood alcohol and not function then? Does it matter whether the car is self-driving? [Nicole Gelinas]
- “11th Circuit rages against ‘incomprehensible’ shotgun complaint, concludes lawyer’s intent was delay” [ABA Journal]
- Quackery and bluster define the lawsuit filed by NY, MD, NJ, and CT attorneys general against Congress’s curtailment of state and local tax (SALT) deduction [Reilly Stephens; more, Howard Gleckman, Tax Policy Center]
- “Conservative/Libertarian Faculty Candidates Are Hired By Law Schools Ranked 12-13 Spots Lower Than Equally-Credentialed Liberal Applicants” [James Cleith Phillips via Paul Caron/TaxProf]
- Coming next week: I’m set to host and moderate a Sept. 20 forum at Cato in D.C. on the Indian Child Welfare Act. Featured are three lawyers who have been involved in high-profile ICWA litigation, Timothy Sandefur of the Goldwater Institute, Matthew McGill of Gibson Dunn, and Charles Rothfeld of Mayer Brown and Yale Law School [details and registration; event not livestreamed, but video to be posted later]
- And now for something completely different: “Charles Evans Hughes and Chevron Deference” [Gerard Magliocca]
The government of Prime Minister Justin Trudeau has moved to support bringing Canada’s laws into line with the terms of the U.N. Declaration on the Rights of Indigenous Peoples, something predecessor administrations had resisted. The result is likely to involve major changes to the current rights and obligations of Canadians [Matt Pollard, Opinio Juris; earlier on the Declaration here and here, and related here, here and here]
Distantly related, perhaps: a symposium on “Global Justice for Indigenous Languages” [Columbia University Institute for the Study of Human Rights]
- After oral argument, case challenging agencies’ use of in-house administrative law judges (Lucia v. SEC) remains hard to predict [Ilya Shapiro, Cato; earlier]
- In dissent from cert denial: “Justices Thomas and Gorsuch Argue for Rejecting Deference to Agency Interpretation of Agency Regulations” [Eugene Volokh, Ilya Shapiro and Matthew Larosiere on Garco Construction, Inc. v. Speer]
- High court still gun shy [Trevor Burrus and Matthew Larosiere on refusal to review Maryland felon gun possession ban] Ninth Circuit ruling on zoning exclusion of firearms business deserves cert review [Shapiro and Larosiere on Teixeira v. Alameda County] Court denies cert in widely watched Defense Distributed First Amendment case on dissemination of plans for 3-D printed weapon [Smith Pachter, earlier] A historical look: “The American Indian foundation of American gun culture” [David Kopel]
- “The Supreme Court’s grant of a Contracts Clause case for the first time in a quarter-century reminds me that a certain John G. Roberts wrote a student note on the Clause back in 1978 (available at 92 Harv. L. Rev. 86).” [Aditya Bamzai on Twitter]
- University of Chicago Law Review special issue on Justice Scalia [Will Baude; other recent Scalia scholarship includes articles on his influence in implied rights of action and standing]
- Case on cert petition before SCOTUS could clarify law on distribution of property after church schisms [Samuel Bray on Protestant Episcopal Church in the Diocese of South Carolina v. Episcopal Church]