6/21/23

 Wednesday, June 21, 2023

Solstice

In bed at 9:30, up at 5:20.  60℉, high of 77℉, sunny all day, no rain😦, wind ENE at 4 mph, 2 to 9 mph during the day, gusts up to 15 mph.  Sunrise at 5:11, solstice at 9:58 CDT, sunset at 8:35, 15+23, the longest day and shortest night.

Race-based governmental decision-making, affirmative action, and the Indian Child Welfare Act.  In today's The Atlantic online there is a piece by Leah Myers titled "BLOOD-QUANTUM LAWS ARE SPLINTERING MY TRIBE: The rules were supposed to preserve my community. Instead, they are slowly cutting people out of it."  Excerpts:

Even though I am a citizen of the Jamestown S’Klallam Tribe, because of my blood I may also be the last tribal member in my family line.  My tribe requires that members be at least one-eighth Jamestown S'Klallam by blood. Because I am exactly one-eighth, unless I have kids with another citizen, my kids will be ineligible to join. Regulations like this, known as blood-quantum laws, are used by many tribal nations to determine citizenship. They do this in the name of preservation, fearing that diluting the bloodline could mean diluting the culture. However, by enforcing these laws, tribal governments not only exclude some active members of their communities, but also may be creating a future in which fewer and fewer people will be eligible for citizenship. Watching enrollment in my tribe dwindle, I’ve started to wonder: What if there were another way to think about the preservation of a community?  (Underscoring added by me.)

Blood-quantum laws were originally created by white settlers in the 18th century. They were used to prohibit interracial marriages, and to keep people deemed Native American out of public offices or on reservations—essentially to determine who would (and wouldn’t) benefit from the privileges of whiteness. By the time of the Indian Reorganization Act in 1934, tribal governments had begun implementing these laws themselves. In theory, the act was designed to preserve Native American identity. In addition to restoring Indigenous people’s fishing and hunting rights, it also offered funds and land to people who volunteered to move to reservations. This system cemented the importance of blood-quantum laws because many tribes that had previously relied on kinship and relationships to determine citizenship now used blood to determine who was allowed to settle on reservations. 

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The act also split my own tribe, the S’Klallam, into three. The federal government paid tribal members to move to two new parcels of land in Washington State and start new tribes; they became the Port Gamble S’Klallam and Lower Elwha. Those who stayed in place on the Strait de Juan de Fuca, on the northern coast of the state, had to pool their money together to buy our ancestral land even though they lived on it already; they became the Jamestown S’Klallam. Now, because of the federal government’s requirements when it offered the land, legally we are separate tribes, even though we all share the same ancestors. Someone can be enrolled in only one of the three. Cousins of mine who have a grandfather in one tribe and a grandmother in another must choose to commit to only half of their family tree and leave behind part of their heritage. Even though they are one-quarter S’Klallam, they are only one-eighth Jamestown S’Klallam—and, unless they have children with another tribal citizen, their kids will be ineligible for citizenship, just like mine could be.

The author points out that the splintering effect of the tribal laws and the federal law is effectively dooming her tribe to extinction.

I think about the plight of the Jamestown K'Llallam Native Americans as I continue to think about the  USSC decision on the constitutionality of the Indian Child Welfare Act, and especially about Clarence Thomas' dissent and Brett Kavanaugh's concurring opinion.

From Kavanaugh's concurrence:  "In my view, the equal protection issue is serious. Under the Act, a child in foster care or adoption proceedings may in some cases be denied a particular placement because of the child’s race—even if the placement is otherwise determined to be in the child’s best interests. And a prospective foster or adoptive parent may in some cases be denied the opportunity to foster or adopt a child because of the prospective parent’s race. Those scenarios raise significant questions under bedrock equal protection principles and this Court’s precedents. 

From Thomas' dissent:  "But ICWA displaces the normal state laws governing child custody when it comes to only one group of citizens: Indian children. ICWA defines “Indian child” capaciously: It includes not only children who are members of an Indian tribe but also those children who are merely eligible for membership in a tribe and are the biological child of a tribal member. See 25 U. S. C. §1903(4). If the child resides on Indian tribal lands, then the Indian tribal court has jurisdiction. §1911(a). But, if the child resides within a State, ICWA requires state courts to transfer any proceedings to a tribal court, absent “good cause to the contrary,” upon petition by the child’s parent, custodian, or tribe. §1911(b).

[Thus, Leah Myers' children, being only 1/16th K'Lallam 'by blood', would not be an "Indian child" under the ICWA.]

Further from Thomas' dissent: "ICWA dictates the preferences a court must adhere to when deciding where to place the child. In the typical case, the primary consideration would be the best interests of that child. (Citations omitted)  That makes sense; as the majority notes, these children are some of the most vulnerable among us, and their interests should be a court’s primary concern.  But ICWA displaces that standard with its own hierarchy of preferences, requiring a court to prefer any placements with (1) a member of the child’s extended family; (2) other members of the child’s tribe; and (3) other Indian families of any tribe, anywhere in the country. §1915(a). Similar rules govern foster-care placements. §1915(b). As the majority notes, these preferences collectively ensure that any Indian from any tribe in the country outranks all non-Indians for adopting and fostering those whom ICWA deems to be Indian children.

[Thus, if Leah Myers did have a child who under a hypothetical tribal law was eligible for tribal membership based on 1/16th 'tribal blood,' that child could, in appropriate circumstances, be placed with wholly-unrelated  Indian adoptive or foster parents in Wisconsin or Florida or Maine far from the Jamestown K'Lallam native lands along the coast of the Juan de Fuca Straits in Washington State in preference to a non-Indian family living across the street from the K'Lallam reservation, and this would be so even if Leah Myers and her child wanted the child to stay with the non-Indian adoptive or foster parents and even though a Washington state court found that staying with the non-Indian adoptive or foster parents was in the best interests of the  child.]

Some thoughts: (1) Are "blood" and "race" the same or different?  How are they the same and/or how different? Didn't the Nazis treat the two concepts as equal, as in Blut und Boden, blood and land referring to the Aryan 'race'? (2) Isn't the ICWA precisely race-based discrimination mandated by Congress? (3) How is it that Indian tribes, i.e., identified only by "blood" or "race" are granted rights superior to those of (a) the child, (b) the child's biological parents and 'blood' relatives, and (c) every state's otherwise sovereign right to implement its policies respecting each individual child's welfare in adoption and custody cases, but only if the child in question is an "Indian child" as defined by ICWA and some tribe's political decision about which children are entitled to tribal membership 'by blood'?  I have not yet digested either Amy Conan Barrett's majority opinion or Neil Gorsuch's lengthy concurrence.  Alito's dissent is 11 printed pages long.  Thomas' dissent is 40 pages long.  Kavanaugh's concurrence is mercifully only 2 pages, but Gorsuch's concurrence is 38 pages long and the majority opinion is 34 pages long.  I think that's 125 pages of history and legal argument, or some would say historical and legal casuistry or sophistry.  

I'm also thinking about how the overt race-based governmental decision making the the ICWA case will be compared with race-based governmental and non-governmental decison making in the affirmative action cases which are expected to be handed down any minute.