SCOTUS Watch: Native Americans

There were over twenty opinions left as the week began, so SCOTUS added another opinion day.  Thursday was another good day as a whole for liberals.  They had more wins (so far) than expected, especially (an important caveat) given what we have to work with as a whole. 

Alito for a unanimous Court wrote an opinion holding that "The Constitution permits the retrial of a defendant following a trial in an improper venue conducted before a jury drawn from the wrong district."  (To quote the headnotes)  That was the third case. Then, we had two Native American cases, Jackson and Barrett handling the honors.  

Jackson wrote an 8-1 opinion involving a bankruptcy dispute involving Native Americans.  "The Bankruptcy Code unambiguously abrogates the sovereign immunity of all governments, including federally recognized Indian  tribes." Gorsuch dissented alone for the tribe. Thomas, who has generally been less supportive of tribal sovereignty as a whole, concurred separately.

The big case was a 7-2 (Thomas and Alito with separate dissents) by Barrett that rejected all claims against the Indian Child Welfare Act. Kavanaugh concurred separately to note that if the equal protection argument was ripe for review, he would find it strong.  Gorsuch concurred with a paeon to Native Americans, Sotomayor and Jackson mostly joining his history passage, not his extended constitutional analysis.  

[The opinions as a whole are over 130 pages but the main opinion is not too long, a little over thirty pages. Gorsuch's concurrence is longer with Thomas' dissent the longest, forty pages. Kavanaugh and Alito also had short opinions to round things out.]

Gorsuch is a big supporter of Native Americans, which is fine, but I still am wary of his overall analysis.  Consider:

"Under our Constitution, Tribes remain independent sovereigns responsible for governing their own affairs."

Not really.  Yes, tribes (who might be only a few hundred strong, controlling tiny territories)  have powers over their own affairs. But, the "independence" is rather restrained, with Congress having major veto power.  Also, if their "own affairs" affect non-members, their power is even more limited.  A true sovereign would have a lot more power.

The liberals (Kagan joined none of it, playing her coalition builder role) didn't join such things as this either:

"Our Constitution reserves for the Tribes a place—an enduring place—in the structure of American life. It promises them sovereignty for as long as they wish to keep it."

No, it doesn't. Congress historically was allowed to totally end the sovereignty of tribes.  The "enduring" nature of tribes in our system is a tad suspect.  They are barely referenced in the Constitution.  There is enough room there to provide them justice.  But, this is a bit of idealistic wish casting by Gorsuch, which is his Douglas-like style. I'm not on board with it.

He does this too often for me to take him too seriously, even when -- as here -- he says some good things, including reminding us about the bad history that the Indian Child Welfare Act was enacted to address.  

At any rate, a few additional thoughts. First, remember that the defendant in the case is the Department of Interior headed by a Native American.  Second, at least worth noting (though what it means isn't clear) that two justices have adopted children.  This is relevant in part since the law:

Among other things, this law requires a state court to place an Indian child with an Indian caretaker, if one is available. That is so even if the child is already living with a non-Indian family and the state court thinks it in the child’s best interest to stay there.

The opinion (with a bit of down-to-earth flair you might expect from Kagan) then summarized:

Before us, a birth mother, foster and adoptive parents, and the State of Texas challenge the Act on multiple constitutional grounds. They argue that it exceeds federal authority, infringes state sovereignty, and discriminates on the basis of race. The United States, joined by several Indian Tribes, defends the law. The issues are complicated—so for the details, read on. But the bottom line is that we reject all of petitioners’ challenges to the statute, some on the merits and others for lack of standing.

Barrett often seems to be a bit more workmanlike in her opinions. She got a prime case here and you can understand why. Gorsuch went too far, Kavanaugh was iffy on something, Thomas/Alito dissented, and the case raised various conservative arguments that Barrett would be more likely to support than some justices.  She basically was the median here.

The general concern here is federalism but Native Americans basically are treated as a special class constitutionally.  So, it is understandable why the median position -- even on a Court more conservative -- basically sees this as a sort of opt-out, even without factoring in Gorsuch. Anyway, Barrett (or her clerk) continues with that flair:

To be clear, however, “plenary” does not mean “free-floating.” A power unmoored from the Constitution would lack both justification and limits. So like the rest of its legislative powers, Congress’s authority to regulate Indians must derive from the Constitution, not the atmosphere. 

The power is still broad and doesn't result in a "firewall" being in place even when dealing with traditional state functions like family law.  The opinion in fact pushes against some rhetoric that arises at times (see, e.g., the concurrence in U.S. v. Lopez) that congressional powers are weaker when let's say "traditional state functions" are involved:

Petitioners are trying to turn a general observation (that Congress’s Article I powers rarely touch state family law) into a constitutional carveout (that family law is wholly exempt from federal regulation). That argument is a non-starter.  As James Madison said to Members of the First Congress, when the Constitution conferred a power on Congress, “they might exercise it, although it should interfere with the laws, or even the Constitution of the States.”

(This might have interesting applications if applied consistently.)

The opinion continues in this strong, almost playful tone, including comments like "This does not get them very far either" and "of course" (but that doesn't get you where you want to go).  One footnote reminds us that "we never broke down our cases this way" in answer to a typical conservative invention of special limits of congressional powers.  

You start to see why Thomas might have spent so long refuting this opinion, given both its tone and open-ended breadth.  The commandeering claims (a dubious body of law anyhow, but I digress) are tossed aside for lack of state commandeering.  State courts are a special case here ("end of story"!) so that is a non-starter too.  

The equal protection argument (dubious anyway since "Indian" is a nationality here, not merely a race) is not ripe since no one has standing at this time to bring it.  I spent a bit more time breaking down the opinion that I originally thought I would since it is somewhat striking.

One more comment on Gorsuch's dissent. Note this part:

Recognizing as much, this Court has consistently re-affirmed the Tribes’ “immunity from state and local control.” Arizona v. San Carlos Apache Tribe of Ariz., 463 U. S. 545, 571 (1983) (internal quotation marks omitted).

But, then I went to the cited case, and the passage reads:

"Because of their sovereign status, [Indian] tribes and their reservation lands are insulated in some respects by a 'historic immunity from state and local control,' 

Ahem.  "In some respects."  BTW, I saw someone concerned about the use of "Indian" in the opinion.  I checked and it looks like the word is used in the Department of Interior brief too.  It also is a sort of term of art in the law and Constitution. Gorsuch used both "Indians" and "Native Americans."  One person in a thread also noted there is a dispute among Native Americans about what language to use.  It is a tricky issue.

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Let's see if Friday is less liberal-friendly. Also, remember, Monday is a holiday (Juneteenth).   [time passes]

I was going to split the two opinion days but the second one was a no-drama day so I will just tack on this addendum.  I also edited the original a little bit so will just republish this now.  If something else happens today order-wise, or whatever, I will just include it next week probably.

Jackson handed down a short unanimous criminal matter opinion. 

Kagan had an 8-1 (Thomas dissenting) relatively short opinion on the False Claims Act. Kavanaugh (with Barrett) -- continuing a bit of a theme -- tacked a brief concurrence offering that the dissent made a good argument on something but that the case itself did not raise a chance of applying it.  

The case involves "qui tam" claims and whistleblowing, which is an interesting issue for specialists (and can raise some interesting results as applied) but people probably expected a bit more today.  Also, a bit of inside baseball: the opinions are short, but it took a long time to hand down the case.  

So, there might be a little story there.