I do not normally post private communications on the blog. But, this is an informed opinion from C.R.Smith, Constitutional law scholar.
Re: Brackeen v. Haaland
Hannah—Thanks for the link. I have followed the Brackeen litigation closely since its inception and included a presentation concerning it in a 2021 Indian law CLE that I put together. Interestingly, the district court decision that eventually worked its way up through the Fifth Circuit to the Supreme Court was issued while I was visiting Julian and you in 2018. Although the case is reasonably complication both as to Article III standing and the merits, my best guess is that a majority will find jurisdiction and, on the merits, follow existing precedent that treats tribes or their members (at least where federal statutes are involved such as the Indian Child Welfare Act) as political, not racial, entities, thereby leaving ICWA largely intact. However, a majority of the Court may be disposed to invalidate (1) certain of the adoption preferences in the statute that benefit persons who, while Indians, are not members of the involved child’s tribe on Fifth Amendment grounds and (2) certain duties imposed on state agencies on anti-commandeering (i.e., Tenth Amendment) grounds. Predictions in this case, as well as in any Indian law matter before the Court, are made more difficult because Justice Gorsuch, despite, or perhaps because of, his “originalist” biases is a strong supporter of tribal sovereignty. He is thus more aligned with Justices Sotomayor, Kagan and Jackson that with the remainder of the Court. Finally, I confess ignorance as the UNCRC and have nothing of substance that I could offer to Rep. Omar. Love, Clay
From: Hannah Smith
Date: Tuesday, May 23, 2023 at 10:48 AM
To: Clay Riggs Smith
Subject: Brackeen v. Haaland
Are you following this case before the SCOTUS?
This article is too folksy:
However, the issue is that all U.S. born children are legally chattel until they are emancipated at age 18. It’s no wonder black history is not to be taught. The parents have all been complicity in denying that children have rights. So, when the freedmen after the Civil War rushed to register wives and children, it was not to celebrate liberty but to lay claim to their property.
The Senate has an opportunity to rectify by ratifying the UNCRC, which Clinton signed in 1998, but clings to the status of being the only nation on earth that does not recognize children’s human rights.
GWB did say “we are an ownership society.” At the time, I did not fully appreciate that owning humans is an American priority.
If you were so inclined, perhaps you could offer Rep. Ilhan Omar some advice. She’s been keen to see UNCRC ratified.
We continue with mild weather. NTIM is still being tweaked.