A Limited but Significant Victory for Children the Government Deems to be American Indian

The Fifth Circuit invalidates portions of the Indian Child Welfare Act, but the Supreme Court needs to invalidate the whole thing

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Tim Sandefur, who has done great work on the issue, analyzes the Fifth Circuit's long, divided opinion on the Indian Child Welfare Act.

As regular readers know, I have spent the last couple of years researching the modern American law of racial classification. (Did I mention that in addition to my soon-to-be-published law review article, I now have a book contract?) If you asked me what is the most obviously unconstitutional (or, for that matter, immoral) law that depends on such classification, my answer would be the ICWA.

Just for example, under ICWA a child could be zero percent Indian on his mother's side, 1/256 Cherokee on his father's side, and not a member of the Cherokee tribe, but eligible for tribal membership. According to the ICWA, this makes him "an Indian" for statutory purposes.

His parents decide to give the child up for adoption to a loving white (or black, or Hispanic) family. Great, right? Wrong. The Cherokee Tribe can veto the adoption, and insist that he be adopted by a Cherokee.

But wait, there's more. Even if the Cherokee tribe agrees to the parents' adoption wishes, before a court can allow the non-Indian couple to adopt, it would have to make sure that no other Indian tribe wants to claim the child. In other words, this child's future is being determined solely based on what amounts to a one-drop rule of racial ancestry, allowing a child that's never set foot on his ancestral reservation to be adopted against the parents' judgment by a tribe with which he has no connections at all, other than "racial." The Supreme Court needs to take this opportunity to get rid of this monstrous law.

[Cross-posted with minor differences at Instapundit]

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  1. I share your instinctive dislike of this approach, but at the same time you’d have to be pretty ignorant not to understand the mischief that this law is trying to cure. There are examples all over the world, from the US and Canada to Australia, of good white folks trying to fix the barbarian indigenous peoples by having good white families adopt indigenous kids. It’s basically a form of what the Chinese are currently doing to the Uyghurs, re-educating them to be proper Han.

    https://en.wikipedia.org/wiki/Cultural_genocide

    1. In my book chapter where I deal with this issue, I acknowledge the history and the benign intent motivating the law. But (a) it’s 40 plus years later, and the relevant concerns are less salient; (b) the law goes went way too far even at the time, in particular in whom it defines as an Indian and in overriding the wishes of the Indian parent in favor of the wishes of his/her or even a completely different tribe; and (c) I’m sure there were better ways to handle these issues in 1978 when the law was passed. Essentially we went from a situation in which individual Indian children were abused by unsympathetic judges to the detriment of them and their tribes to a situation in which individual Indian chldren can be abused by judges required to value the interests of Indians write large over the interests of individual children, and in some cases the wishes of their parents.

    2. BUT we aren’t in the 1950s anymore — social workers today are uber leftists and they’d love to find an Indian family for the child…

      1. This umbrella totally kept me dry during that rainstorm, I guess I should throw it in the trash now that that’s over!

        1. You mean you don’t put your umbrella away after the rainstorm? You just keep it up? Despite the sun?

          How odd…

          1. I keep in my car and my briefcase, I don’t throw it away.

          2. “You mean you don’t put your umbrella away after the rainstorm? You just keep it up? Despite the sun? ”

            That’s how you get it to dry off without growing anything green on it.

        2. I don’t understand why progs are sulking over this. Are you guys arguing that we should keep the law as is? If not why are you even bellyaching over it?

          1. Many of them lived in western states, and thus have knowledge of the Indian Schools debacle.

        3. Are you … worried that a great rash of anti-Native sentiment is going to come over America at large and the only thing that will protect Native children from being stolen away to white families is … this law?

          (Which also won’t be repealed or changed as part of that wave of hostile sentiment?)

          Because that seems a lot less likely than it hurting Native [and not-really-Native, too] children right now the way Prof. Bernstein suggests?

      2. If only it was the 1950s. Famously conservative Canada was doing stuff like this as recently as the 1980s. https://en.wikipedia.org/wiki/Sixties_Scoop

        1. Back then having brown skin didn’t shield you from the government intervening if they thought your children were living in an abusive or neglectful home. I bet the Amish and all those weird white cults the government still happily seizes children from for their own supposed good and are relentlessly attacked by the same media crying over the indians, wish they had the deference they show the nonwhite tribes.

        2. Then maybe Canada should have a law like that. That doesn’t justify this law.

          1. They put it in the constitution: https://www.canlii.org/en/ca/laws/stat/schedule-b-to-the-canada-act-1982-uk-1982-c-11/latest/schedule-b-to-the-canada-act-1982-uk-1982-c-11.html#sec35_smooth

            As for the US, if you can explain why US indigenous people should trust the US goverment to treat them better than the Canadian government treated indigenous people north of the border, I’ll grant you your conclusion.

            1. The first flaw here, though, is that there is no reason to call someone who happens to have inherited tribal membership, or is just eligible for it, an indigenous person. If someone is 15/16 European by descent, and 1/16 Indian, is formally a member of the Cherokee tribe but has little to no cultural connection to that tribe, what makes him “an indigenous person” as opposed to “mostly European-descended person who has a small amount of indigenous ancestry?”

              1. There is as much right to acculturate a child in a minority culture as a majority one. The blue-eyed, blonde adoptive parents might well choose to raise the child as a Cherokee, to the extent they are able to.
                Heck, that child might grow up to be a professor at Harvard Law School, or even a US Senator!

                1. Or she might be just another Oakie who lied so that her employer could deceive the US government

    3. So because some families in the 1800s adapted Indian children again the will of the tribe we have to place all children in the US that are 1/infinity or above indian under the power of tribal governments to decide their fate forever after?

      Seems kinda dumb.

      1. Recall that we negotiated possession of all the land that used to have native Americans on it via the notion that the natives were represented by sovereign governments.
        Do we also complain that children who happen to be British enough to be British citizens are subject to British adoption law instead of ours?

        1. I don’t know what your saying has anything to do with the issue. These are not tribal children huddled in teepees while the 7th calvary swoops in to kidnap them. This is about tribal governments getting to dictate the fate of children and families that have no connection to them.

          1. “I don’t know what your saying has anything to do with the issue. These are not tribal children huddled in teepees while the 7th swoops in to kidnap them.”

            Your cluelessness starts with your willingness to supply elements of my commentary that weren’t put there by me.

            1. Look, this law is all about white man’s guilt, no more, no less. The child is just a pawn in the game.

        2. And then we had a second revolution, i.e. Civil War, and the new American government didn’t recognize the rights of sovereign governments anymore. That’s what the 13th, 14th, & 15th Amendments did.

          1. A supermajority of states voluntarily limited themselves and the federal government from allowing slavery? Rats?

          2. The 13th? You coming out for slavery as a states’ rights issue?!

          3. “And then we had a second revolution, i.e. Civil War”

            Are you unclear on which side won that war?

            1. Hint: Aren’t you from a Northern state?

          4. The “rights [sic] of sovereign governments” to enslave people and not let blacks vote?

        3. Do you think Britain controls adoptions based on who has a drop of English ancestry rather than current citizenship?

          1. Did I say anything like what you’re suggesting I think?

      2. 1. Far more recently than the 1800s.
        2. Like I said, not a fan, but I recognise the need for some kind of solution for this problem. Just putting the parents in charge risks them being influenced (for lack of a better word) with money or duress.

    4. We should learn from the Native American experience. They failed to control illegal immigration, and lost their country.

      1. thats what always baffles me when they drag an indian mascot to promote illegal immigration. Like okay…so he lost his land due to immigration so are saying we should do it again?

        1. Maybe it’s because they have a different sense of exactly what is being done again and by whom.

    5. Yes, force kids to live with alcoholic, violent, sexual predator Democrats in utter Democrat poverty and Democrat government dependency.

      1. “Yes, force kids to live with alcoholic, violent, sexual predator Democrats”

        When they could be living with alcoholic, violent, sexual predator Republicans, instead?

        1. Adoptive parents undergo rigorous vetting.

          1. Make up your mind which side of the argument you want to pursue.

  2. Ok so my initial reaction was “wow the number one Israel defender takes issue with ICWA how does that even work” but then I remembered Bernstein is anything but principled. You’re gross guy. Literally everyone knows it. I have defended many native Americans in child protection cases and not one has ever complained about the protections of ICWA. You’re the racist.

    1. That law, by definition, is based on race, and that not only makes it racist, it violates the 14th amendment.

    2. There’s a word for people who bring up Israel incessantly to criticize Jewish authors when Israel literally has nothing to do with the issue at hand, and it’s not “philo-Semite.”

      1. What word describes people who reflexively label anyone who criticizes Israeli government policy as “anti-Semite”?

        1. “Wait, what did we do this time?” /Israel, finding itself mentioned in a discussion of the Indian Child Welfare Act

          1. People are bringing it up because of Berenstein. It’s his long standing crusade to defend all things Israel because of his ethnic affinity, for him then to turn around and be the scourge of ethnic identity politics/policy, much of which has its analogies in Israel, here in the States is high chutzpah.

            1. Israel has exactly nothing to do with the ICWA, has no policies that are even remotely like the ICWA, and your insistence on bringing Israel into a debate that it has nothing to do with is a way of trying to delegitimize Jews who support Israel by suggesting that they can’t comment on any other comment than in your imagination may have some tenuous relationship to something Israel does without first defending Israel. It’s blatantly antisemitic.

              1. Since you’re just repeating yourself, the conclusory statements and lazy charge of anti-Semitism, I’ll do the same in response:

                Talk about obtuse. If you were an Indian-American and also a long-standing writer defending Indian Nationalism then if you started a career turn of criticizing American nationalism then, yes, you’d get that pointed out as being problematic.

                Note, there’s nothing wrong with you having a strong Jewish ethnic identity and an ethnic affinity for Israel! And Israel’s adoption (and other ethnically based policies) while perhaps problematic from certain view points are also there for some at least quite defensible reasons. The point is the same can be said of that kind of thing when it goes on in the States (or wherever).

                It’s a self-awareness thing.

                1. Hi, Queenie. The Nazi Party was an all gay affair, to the very top. Same is true about other gay national leaders.

                  1. It’s like if you took a bunch of National Inquirer lines, spliced them with Alex Jones and printed them out randomly.

                    1. Not the National Inquirer, but a 500 page book about the archives opened by East Germany.

                    2. Amazon removed the book, The Pink Swastika. Cancel Amazon.

                  2. The SA definitely was — not so sure about the Nazis though.

                  3. “Hi, Queenie. The Nazi Party was an all gay affair, to the very top. Same is true about other gay national leaders.”

                    Indeed, the entire right wing is full of closet types too shy to come out into the sunlight.

                2. You’re a raving antisemite preaching a far right creed. Someone around here is certainly lacking in self awareness…

    3. “number one Israel defender takes issue with ICWA”

      Imagine a similar law which mandated that any child with a drop of Jewish blood not only had to be placed through the Jewish adoption agency but *also* had to be offered to every other such entity in the entire country before the child could be placed in a Christian home.

      Not only would that be unconstitutional, but I suspect that the Jewish adoption folks, genuinely caring about the best interests of the child, would object to this — they’d want the kid in a loving home and if that meant the other parent’s Christian parents (e.g. Obama), so be it.

      Here, the law seems to mandate that the child raised in a non-Indian home must not only be placed in an Indian home (even if NOT in the child’s best interests) but even if it is not the same tribe. That’s bullshyte.

      1. Israel used to have a law requiring that children be adopted to adoptive parents of the same religion and ethnicity as the child. I think now it states a preference for that.

        1. So, that would be like 50%. Not “1 drop”

          1. Are you haggling over the percentages?

        2. Israeli law also requires its girls to serve 2 years in the IDF.
          Your point being?

          1. “Imagine a similar law which mandated that any child with a drop of Jewish blood not only had to be placed through the Jewish adoption agency but *also* had to be offered to every other such entity in the entire country before the child could be placed in a Christian home.”

            The policy I describe is very similar (unless you’re hung up on the ‘drop’ bit). Under the Israeli law a Jewish child could not be adopted to a Druz family, it had to be a Jewish family, best interests of the child be darned. I guess though I’m not surprised that crazy Eddie doesn’t see the analogy that he, unwittingly, brought into the discussion himself!

            1. “the strict and uncompromising religious matching requirement under Israeli adoption law also seems to be at odds with the basic notion of the best interests of the child, 6 supposedly the overall guiding principle of modem adoption law. 7 For example, no matter how suitable the prospective adopters are in terms of affording an adopted child a loving and materially providing home, the religious identity attributed to the child needs to match that of the prospective adopters. 8 Otherwise, adoption is to be denied.”

              Karayanni, Michael M. In the Best Interests of the Group: Religious Matching under Israeli Adoption Law. Berkeley Journal of Middle Eastern & Islamic Law, 3(1) (2010)

              https://escholarship.org/content/qt3698v643/qt3698v643.pdf?t=ph3unr

              1. Religious matching is not the same as ethnic/racial matching, and religious matching until recently was the policy of adoption agencies and government in the U.S. Religious matching has nothing to do with the ICWA, which is based on a notion of collective Indian racial identity based on a combination of a one-drop principle and tribal membership rules, not religion. Indeed, Christian parents no ties to an Indian tribe except remote ancestry on one side could easily see their child adopted against their wishes by a tribal-designated family who will raise the child in a Native American religion. None of this has anything to do with Israel, except that you are sufficiently obssessed you are like the hammer who sees every problem as a nail.

                1. You’re so lacking in self-awareness you don’t see that the people who are pointing to Israel are doing so because they are aware of *your* obsession with defending it. You’ve got a largely ethnic based affinity with it, and there’s nothing wrong with that! But then you go on this side crusade against identity politics, it’s so blatantly obtuse. Likewise the ICWA’s adoption provisions are plainly based on many of the same values and principles as Israel’s religious (which is, of course, also closely ethnic there) matching rule. Both can lead to situations where the best interest of the child and individual fitness of the prospective couple is trumped by group interests. You can’t see it because you don’t want to see the tension inherent in your two Crusades going on here…

                    1. Mock all the idiots.

          2. “Israeli law also requires its girls to serve 2 years in the IDF.”

            US law doesn’t require anyone to serve in the IDF, girls or not. You were mumbling something about a point?

        3. It’s required by international human rights law. You’re an antisemitic loon pretending to target Israel, and it’s perfectly clear to everyone but, possibly, you.

    4. Ok so my initial reaction was “wow the number one Israel defender takes issue with ICWA how does that even work” but then I remembered Bernstein is anything but principled.

      What principle do you think is being violated here? I’m having trouble seeing it.

    5. IKR? For a guy who has spent so much time, effort and ink in defending the explicit ethnostate he feels an affinity to for ethnic reasons to go down this particular warpath is some serious chutzpah.

      1. Let me know when Israel demands that it has veto power over adoptions of anything be with distant Jewish ancestry on one side of his family who lives in a foreign country and then we can say there’s an analogy. Meanwhile, raising Israel in reaction to this post is antisemitism, straight up.

        1. ” raising Israel in reaction to this post is antisemitism, straight up.”

          No, it’s merely obtuse and irrelevant. The people doing it may be antisemitic — that I don’t know — but it’s really like raising Ireland or India in response to the ICWA.

          1. What does “criticizing Israeli policy” have to do with a post about the American Indian Child Welfare Act?

          2. “No, it’s merely obtuse and irrelevant. The people doing it may be antisemitic — that I don’t know — but it’s really like raising Ireland or India in response to the ICWA.”

            But no one would do that, because it’s so obviously obtuse and irrelevant. The only reason you wouldn’t think it’s obtuse and irrelevant in this case has to have something to do with thinking that someone who happens to be Jewish and pro-Israel can’t have opinions on a whole range of unrelated matters, that his job is to defend himself from that person’s dislike of Israel in all contexts, at all times.

            1. Talk about obtuse. If you were an Indian-American and also a long-standing writer defending Indian Nationalism then if you started a career turn of criticizing American nationalism then, yes, you’d get that pointed out as being problematic.

              Note, there’s nothing wrong with you having a strong Jewish ethnic identity and an ethnic affinity for Israel! And Israel’s adoption (and other ethnically based policies) while perhaps problematic from certain view points are also there for some at least quite defensible reasons. The point is the same can be said of that kind of thing when it goes on in the States (or wherever).

              It’s a self-awareness thing.

              1. You keep saying that Israel has “ethnic” adoption policies even though you cited an article that shows that it has religion-based policies, which obviously in practice primarily protect minority (Muslim etc) children from being adopted by Jews, not vice-versa, but in any event is a product of the fact that family law is inherited from the British, which was inherited from the Ottoman Empire, which kept the peace in its multi-religious empire by giving each religious group autonomy over family-law matters. Which has exactly nothing to do with ICWA’s one-drop rule, except to an antisemite obsessed with Israel.

                1. “which kept the peace in its multi-religious empire by giving each religious group autonomy over family-law matters”

                  Wow, even stating it you can’t see the analogy going on?

                  “has exactly nothing to do with ICWA’s one-drop rule”

                  Is your objection to the ICWA focused only on the one drop rule? If they determined the religious status of the child in, say, the way Israel does (and we all know there are no intuitively strange determinations of, say, ‘who is a Jew’ in Israeli law!) and then let group interests trump individual prospective parent fitness and interests of the child as Israel does you would be fine with the ICWA provisions on adoption? Because that hardly seems clear from your writing.

                2. ” Which has exactly nothing to do with ICWA’s one-drop rule, except to an antisemite obsessed with Israel.”

                  Which is why it’s a surprise that you chose to write about it.

                  1. Because even though I’ve written five books, dozens of articles, and hundreds of blog posts that have nothing to do with Israel, since I’m a Jew and sometimes defend Israel, that must be the only thing I care about because, well, you know how Jews are.

            2. I think you misunderstand slightly, David. You aren’t being asked to defend Israel, you’re being accused of writing this article in the service of Israel.

              Obviously it’s virulently antisemitic. But then this blog has chosen a very odd host, and the majority of the commenters here seem to have crawled across from the rest of the site.

              1. “You aren’t being asked to defend Israel, you’re being accused of writing this article in the service of Israel.”

                Oh, get a grip. I’ve explained the basis of my comments several time, this is as silly as it is lazy. People like you continue to cheapen the charge of anti-Semitism and make life more difficult for Jews around the world.

            3. David — never underestimate the stupidity of a “woke” leftist.

              And while antisemitism is very real, sometimes it actually is possible for a leftist to merely be obtuse and irrelevant. My point is in that declaring marginal things to be antisemitic, even if they come from antisemitic roots, one diminishes the ability to address things which truly are.

              Hence my response of “and Israel requires girls to serve two years in the IDF” (i.e. Army) — something equally irrelevant to American family law.

              1. “David — never underestimate the stupidity of a “woke” leftist.”

                They’re simply not in your class.

        2. Lol, analogies by their very definition can be partial similarities or comparable in significant respects, so your ‘let me know when the ethnostate I ardently defend does the exact same thing as this or else you’re just being anti-semitic’ is just more lazy Al Sharpton-esque level card playing.

          Both this law and Israel’s Section 5 law are based on the same principles: respect for ethnic groups/states efforts to preserve the same, mitigation of issues in relations contemporary or past, etc.,

        3. “raising Israel in reaction to this post is antisemitism, straight up.”

          And there it is.

          1. To distill this to the essence,
            Disagreeing with Prof Bernstein is anti-Semitic… according to Prof Bernstein. Never mind that the term used to have meaning.

      2. Let me know when Israel demands that it has veto power over adoptions of any child with distant Jewish ancestry on one side of his family who lives in a foreign country and then we can say there’s an analogy. Meanwhile, raising Israel in reaction to this post is antisemitism, straight up.

        1. “Let me know when Israel demands that it has veto power over adoptions of any child with distant Jewish ancestry on one side of his family who lives in a foreign country”
          +
          “raising Israel in reaction to this post is antisemitism, straight up.”
          =
          You, sir, are an antisemite.

          1. Responding to someone else who raised Israel is not “raising Israel,” duh.

            1. And, alas, not a very bright one.

        2. To be fair, maybe he is a Mormon and thinks Indians are one of the lost tribes of Israel.

    6. Are you suggesting that Israel asserts jurisdiction over adoption of children with any Jewish ancestry, no matter how slight? If not, then what’s your point?

      1. His point it to try to make any Jew who defends Israel constantly defend Israel even when talking about something entirely unrelated, and thus to make it that much more difficult for anyone to support Israel.

        1. No, this is about your personal inconsistencies, but keep using the anti-Semitism charge to lazily protect yourself from facing those. With friends like these Jews don’t need enemies…

          1. It’s about your obsessive focus on me and Israel, regardless of how irrelevant it is to the issue at hand. People who obsessively focus on a Jew’s support for Israel are playing in the antisemitism sandbox… and the “you pro-Israel Jews are the *real* enemy for Jewish people* is in the same sandbox, I’m afraid.

            1. The people here mentioning Israel are only mentioning it because of your connection/affinity to it. If you a strong, well documented ethnic affinity to and constant defense of India and you were criticizing the US for this and other ethnic/identity politics/policies we’d point that out just as quickly. You’re cheapening the charge of anti-Semitism to protect your own personal hypocrisy and lack of awareness of it. Shame on you.

              1. You are undermining the legitimate charge of antisemitism by denying obvious examples of it. My post has nothing to do with ethnic affinity in general, and everything to do with a very specific law.

            2. ” People who obsessively focus on a Jew’s support for Israel are playing in the antisemitism sandbox”

              And there you are again, staring out of the sand.

  3. “Just for example, under ICWA a child could be zero percent Indian on his mother’s side, 1/256 Cherokee on his father’s side, and not a member of the Cherokee tribe, but eligible for tribal membership. According to the ICWA, this makes him “an Indian” for statutory purposes.”

    And yet there are people who could (theoretically) be of 100% Indian blood and yet defined as NOT being Indians because tribes with casinos have closed their membership. This may be a New England thing but there are several tribes where any person over the age of 1 year (i.e. not an infant) is denied membership regardless of bloodline.

    And as the Federal government recognizes the tribe as the determining authority, that means this person is not an Indian. (And can’t benefit from the casino revenue — more for everyone else…)

    So Indian law is playing both ends against the middle here — and it’s kinda like being half pregnant…

    1. And therein lies the problem. It’s like letting government legislators, bureaucrats, and judges define the limits of government. When the tribe subjectively decides who is a member, thumbing their nose at objective facts, corruption can be the only outcome.

      I once tried to decide how any law of property could allow communal property. IANAL, and it was an interesting exercise. I came to the same conclusion: there cannot be such a thing. Someone has to decide who is a member of the community which collectively owns the communal property, and it can only lead to corruption unless it is based entirely on objective facts.

    2. Officially, under Supreme Court precedent the reason you can classify and single out Indians is because of tribal membership, which the Court has said is a political, not a racial classification. But, as you note, there are people who are 100% Indian who are not tribal members; more commonly, there are people who are 1/2 or 1/4 Indian but not tribal members, but have some ties to Indian tribes. So many laws and regulations allow for tribal membership OR “blood quantum,” usually 1/4. The BIA will even issue a “Certificate of Indian Blood,” believe it or not, so one can prove blood quantum. How this is constitutional is beyond me.

      1. So how can tribes then turn around and refuse such persons, with a BIA “blood quantum” membership? They do, and even this is somehow legal…

        BTW: MAGA is a political classification — can we qualify for handouts?

        1. “BTW: MAGA is a political classification — can we qualify for handouts?”

          Ed wants a handout for self-identifying as stupid and anti-American.

        2. “So how can tribes then turn around and refuse such persons, with a BIA “blood quantum” membership?”

          The same way people of at least normal intelligence can scoff at your claims to be one of them.

      2. As an aside, Ann Coulter has written extensively about how the Connecticut Indians currently benefiting from the “Indian” casinos there really are NOT actually “Indians.”

        I don’t have Lexis/Nexis anymore so I can’t find these articles — some several decades old, but she seemed to have a convincing argument.

        1. “Connecticut Indians currently benefiting from the ‘Indian’ casinos there really are NOT actually ‘Indians.'”

          Are you JUST NOW learning that Columbus never made it to India? Calling the people he met here “Indians” doesn’t make any of them actually Indian.

          1. Well, *I* am a “Native American” — my people have been here since 1644, i.e. before 1789, an if I am not entitled to any special rights on that basis, I don’t see why anyone else should be.

            Arguably the 14th Amendment revoked the Indians’ treaties, much as it (and the 13th & 15th) revoked state sovereignty.

            1. Another classic in Crazy Eddie’s Equivocations. Come down today for buy one, get one!

              1. Sense and and reason not included.

      3. “Officially, under Supreme Court precedent the reason you can classify and single out Indians is because of tribal membership, which the Court has said is a political, not a racial classification. But… there are people who are 100% Indian who are not tribal members”

        Perhaps, that is because tribal membership is… a political classification, not a racial one.

        1. 100% indian?
          The last indian died centuries ago. Once indigenous populations began appropriating European culture, horses, steel, gunpowder, then they began the slippery slope toward merely being descendants of indians, no longer indians.

          1. More like flush toilets and central heating, not to mention refrigeration, electricity, and automobiles.

            The Penobscots quietly admit that they don’t think that any of them could make it through a Maine winter using “the old ways” anymore. I imagine that other tribes would make a similar concession.

  4. This is a matter of national sovereignty, not racism. Professor Somin is at least consistent for claiming that immigration laws are discriminatory because they distinguish citizens from non-citizens.

    Indian tribes are sovereign nations. They have a parens patriae right to have a say in the destiny of their citizens, including not having them brought up by foreigners.

    And as the operator of a protectorate for dependent sovereign nations, the US Government has a right to enforce that right.

    Characterizing this as racism is just as silly as Professor Somin’s characterising immigration restrictions as racism. It’s what sovereign nations do. We do exactly the same thing.

    1. “Indian tribes are sovereign nations. They have a parens patriae right to have a say in the destiny of their citizens, including not having them brought up by foreigners.

      Bullbleep.

      You are falling into the same trap that the CCP preaches — that a person of Chinese ancestry, regardless of US citizenship, is still “Chinese” and hence subject to *their* control.

      Furthermore, even if you argument had a scintilla of validity, why should a *DIFFERENT* foreign nation have the right to raise the child?

      And taking your diatribe to its logical extreme, if these are foreign nations within our borders, we have every right — under International law — to subjugate them, if not expel them by force. Do you really want to see that done?!?

      1. Furthermore, if they are sovereign nations, the states are under no obligation to educate their children — or to even care how badly their children are being abused. Or if orphaned children are dying in the ditches of the reservation.

        If they are sovereign, than the states aren’t liable for them — AT ALL — and the state can put up big signs at the border saying “you are now leaving our state — and good luck…” And the state doesn’t have to pave or plow the roads through the reservations either as it is another state…

        1. Creating dichotomies out of thin air is fun, isn’t it?

          1. He really IS that stupid.

            1. No, he just knows how to read, i.e. the 14th Amendment.

              1. He really IS that stupid.

              2. The guy who claims he can read the 14th amendment apparently can’t tell that the 14th isn’t the 5th.

      2. “if these are foreign nations within our borders, we have every right — under International law — to subjugate them, if not expel them by force”

        Except for the fact that there are treaties governing the relationship and allowing them to exist within the US but still retain tribal sovereignty.

        1. Which were revoked by the 14th Amendment.

          Or, conversely, they ought not have US citizenship.

          1. You’re awfully angry at a bunch of genocide survivors.

          2. You mean that same 14th amendment that explicitly recognises that there are people within the borders of the United States that are not “subject to the jurisdiction thereof”?

            1. If they are “not subject to the jurisdiction thereof”, then (a) why do they have citizenship, (b) why can they vote, and (c) why do we have to provide civil services to them?

              1. The same reason we provide civil services to you.

          3. “Which were revoked by the 14th Amendment.”

            Where, in the 14th amendment, does it say “oh, and by the way, none of our treaties are valid.”?

    2. (1) ICWA applies to children who are eligible for “citizenship” (i.e., tribal membership) but aren’t actually members. I’m “eligible” for Polish citizenship. Does that give Poland an interest in me?
      (2) If someone is a member of a tribe on one side, but not on the other, why does tribal membership/citizenship, which may be based on a very attenuated relationship to the tribe, outweigh American citizenship?

      1. ” I’m ‘eligible’ for Polish citizenship. Does that give Poland an interest in me?”

        Well, yeah. Don’t be angry with them for disavowing you.

      2. Professor Bernstein,

        I think the answer to your objections is a more serious version of my answer to Dr. Ed 2.

        We have a situation with mixed sovereigty. Indians are simultaneously citizens of their tribes and the US, and to a lesser extent of the states they reside in, even as they retain liberties not available to other citizens of that state.

        Just as the US gets to decide who a foreigner is, the constitution gives it authority to decide who an Indian is. It gets to recognize tribes. But it can also deal with individuals.

        Finalky, the Equal Protection Clause only applies to the states. It doesn’t apply to either the federal government or Indian tribal governments. The Courts have interpreted the Due Process clause to incorporate most of the Equal Protection Clause. But not all of it.

        An important carve-out, of great prominence in recent years, involves classifications involving immigrant and alien status. Atates can’t discriminate based on alien status. But the Federal Government can.

        I suggest that something similar applies to Indian status. I think it’s very logical that it should. Indians are inly partly a part of the United States. They are partly a sovereign nation. I think it very logical that the rules for sovereign nations, and not internal US subgroup classifications, apply to them.

        I suffest this should mean that when the Federal government makes classifications involving Indian statis, it is subject only to rational basis review, just as when it makes classifications involving alien status. And this is so even though if states tried to do the identical thing, it would be unconstitutional under Equal Protection. Here the difference between the two matters.

        1. ” Equal Protection Clause only applies to the states. It doesn’t apply to either the federal government”

          The Fifth Amendment doesn’t apply to the Federal government?

          And doesn’t “due process” imply “equal protection”?

          1. “The Fifth Amendment doesn’t apply to the Federal government?”

            For people who can count, the fifth and fourteenth amendments are differently numbered.
            For people who can read, the Fifth amendment doesn’t have an equal protection clause.
            For Doctor Ed, who isn’t included in either of the previous two groups, you fucked up AGAIN.

    3. Ehh… It goes further than that. Much further. It’s the “potential citizenship” clause that makes it different.

      For example, Israel has a “right of citizenship by blood” for anyone who has a Jewish grandparent. Ireland was well.

      Let’s say you have one Irish grandparent. They immigrate to America. They marry a Jew. The couple has a American daughter. The daughter then has a son. The daughter and two grandparents pass away, leaving the son an orphan.

      Under an analogous citizenship law, both the Israelis and Irish would have a “claim” on the child and could veto any adoption.

      1. Worse than that, using the analogy of the ICWA, every other country in the UN would *also* have a “claim” on the child and could also veto any adoption.

        Israel and Ireland at least have a rational basis, but Switzerland? And that is the part of the ICWA that I find most bizarre — “any other tribe” is like saying Switzerland..

        1. How horrible it would be, if just anyone could show up and contest a poorly suited adoption.

  5. Somewhat related story …

    In the early 1940s Germany captured a number of Polish kids and tried to “germanizd” them, give them german parents, and put them through a bunch of abuse so they would forget their heritage. It worked. By the end of the war the kids thought, even the parents thought in some cases, they were German orphans.

    This was significant in scale, I think it was 50,000 kids.

    Well, after the war, the Allies came in and tried to reassociate the kids with the parents. But they were really young when they were taken, the dont remember their original parents, so in their eyes the Allies ended up doing exactly what the Nazis did (with, of course, a lighter touch. But it was the same idea) to make the kids “more polish.” They came into homes, took the kids, the same deal.

    Which was … morally questionable. It isn’t really clear what they should have done. In some instances, when the USSR took over, the USA opted not to take the kids into now USSR and instead shipped them to America, where they had no family to speak of! It wasn’t an excellent moment in history, thought of course nothing then was.

    But its just … in these instances it is really really hard, expecially when racial factors with kids are in play, to figure out what to do. I dont like the law, but I can’t really blame congress for coming up with something like it.

  6. Learn from the Native American. They failed to control illegal immigration and lost their country.

    1. True. Watch Queenie self immolate over your statement.

        1. “Yawn.”

          That’s your example of not taking the bait? You really *couldn’t* just be silent?

          I don’t come here often, so I don’t know the characters. But some overt trolls (not synonymous with arguers) quickly become evident.

          There’s just enough content in your responses to suggest that you actually believe there’s some salience to your position. But for onlookers, there isn’t. Assuming my comment is as worthless to you as all others, you can expect that you’ll one day leave the Volokh Conspiracy with the same issues you had when you arrived, and that that all of your engagement here has been for what? To make it through another day? Are you such a nihilist as to be unable to bring more meaning to the VC than this? Don’t you ever feel an inclination to dig deep inside and pull out a bit of the real stuff, however ugly, that’s inside you? You might even find you have your own sense of morality, and that it can be substantive.

          1. Good grief, your partisan, passive aggressive disingenuousness is more palpable than a Lovecraftian Elder God at the end of the book.

            1. The lurking dread is not so palpable.

      1. “Watch Queenie self immolate over your statement.”

        It WAS incredibly, amazingly stupid, but more “can you believe this idiot?” than “OMG, I have to set myself on fire.”

    2. You feel that threatened by a bunch of impoverished seasonal migrant workers?

      1. THEY are coming.

  7. Queenie is obviously not a lawyer. I wish it a blessed day.

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