The Volokh Conspiracy

Mostly law professors | Sometimes contrarian | Often libertarian | Always independent

Reservations For Two

Justices Gorsuch and Alito have diametrically opposite perspectives on Indian Tribes


Earlier this month, I overheard a conversation during a trip to Florida. A woman on vacation from Ohio was complaining that the Cleveland baseball team changed its name from the Indians to the Guardians. She stated, without any sense of irony, that "natives did not want to change the name." Of course she was referring to baseball fans in Cleveland, who did favored the Indians name–that is, the "native" people in Ohio. I do not think she realized that the people who favored the name change were, quite literally, natives! That is, Native Americans who objected to the Indian name and logo. And, to be precise, there were natives in present-day Ohio before there were white settlers. Still, the people who had the closest connection with the baseball team objected to intermeddling by tribes who cared little for the team's history, but instead, were promoting non-baseball goals that were important to the tribes.

This conversation neatly sums up the dispute between Justice Gorsuch and Justice Alito in Brackeen. (I swear, this conversation actually happened–I couldn't make it up if I tried.)

Let's start with Justice Alito, who is, after all, a big baseball fan. (I do not know if Justice Gorsuch is celebrating the Nuggets' victory.) His dissent states, clearly, that ICWA "subordinat[es] what family-court judges—and often biological parents—determine to be in the best interest of a child to what Congress believed is in the best interest of a tribe." Alito discusses in heart-string-tugging detail the cases of the poor children who were plucked from their loving adoptive families by the meddling tribes. Indeed, one of the children was placed with a maternal grandmother, "who had lost her foster license due to a criminal conviction." Alito is clearly on the side of the adopted parents, and not the tribes. And, for good measure, Justice Alito jabs the tribes in Footnote 1:

The state of affairs on many Indian reservations, however, does not speak well of the way in which these duties have been discharged by this putative trustee. See, e.g., U. S. Commission on Civil Rights, Broken Promises: Continuing Federal Funding Shortfall for Native Americans102–107, 135–138, 156–157, 165–166 (Dec. 2018) (discussing poor performance of students in tribal schools, substandard housing and physical infrastructure on reservations, and high rates of unemployment amongIndians living on reservations).

Why mention these statistics? Alito suggests that these vulnerable children will be placed on reservations where they will be subject to poor living conditions. In other words, the Tribes have not lived up to their ends of the bargain. The implication: better for the kids to stay with non-Indian parents who can serve the best interest of the child.

I suspect Justices Thomas and Alito would contend that the tribes intervening in ICWA cases are not doing so to preserve the best interest of the children–many of whom have no actual connections to Tribes–but instead to promote broader notions of tribal autonomy, in the abstract. To use a phrase from the opinion, the children are mere commodities.

Also on Thursday, the Supreme Court decided Lac du Flambeau Band of Lake Superior Chippewa Indians v. Coughlin. The question presented concerned abrogation of tribal sovereign immunity. But the facts do not paint the Band in particularly favorable light.  Coughlin, the plaintiff, took a payday loan from Lendgreen, which is ostensibly operated by the Indian tribe. Coughlin declared bankruptcy, which should have triggered an automatic stay against further collection efforts. But Lendgreen did not stop. Justice Jackson explained, "Coughlin alleges that Lendgreen was so aggressive in its efforts to contact him and collect the money that he suffered substantial emotional distress, and at one point, even attempted to take his own life."

Justice Thomas's dissent suggests that tribal immunity has led to tribal impunity:

Finally, this Court's tribal immunity doctrine continues to artificially exempt tribes from generally applicable laws.I warned nearly a decade ago that tribal immunity "will continue to invite problems, including de facto deregulation of highly regulated activities; unfairness to tort victims; and increasingly fractious relations with States and individuals alike." Id., at 825. This is a case in point. In order to avoid state payday loan regulation, "payday lenders . . . often arrange to share fees or profits with tribes so they can use tribal immunity as a shield for conduct of questionable legality." Ibid. Petitioners here rely on tribal immunity to avoid not only state but also federal payday loan regulation.They further seek to leverage this immunity to pursue respondent on his debt while other creditors' collection efforts are stayed. Tribal immunity thus creates a pathway to circumvent vast swaths of both state and federal laws.

Again, I suspect that Justices Thomas and Alito are skeptical of claims to tribal sovereignty in light of how they exercise that autonomy: business interests that rely on exemptions from generally-applicable state and federal laws, such as gambling, payday lending, and sale of alcohol and tobacco, to say nothing about violent Indian criminal defendants who will not actually be prosecuted by Indian tribes post-McGirt.

Framing matters at the Supreme Court. If you read Justice Gorsuch's concurrence in Brackeen, you would think that ICWA is an essential law to preserve Native American culture and the future of the tribes. Part I of his dissent warns about the "existential threat to the continued vitality of Tribes." But if you read Justice Alito's dissent, you would think that ICWA forces states to surrender vulnerable non-Indian children to poorly-run tribes. On the Supreme Court, and all courts, framing is very important.

One final note. Many media accounts have focused on the fact that Chief Justice Roberts and Justice Barrett have adopted children, which may help explain their vote. But lost in this narrative, as usual, is Justice Thomas. He was de facto adopted by his grandfather and grandmother. Thomas moved from his birthplace of Pin Point, Georgia, which was steeped in Gullah culture, to a much larger city, Savannah, where he was able to obtain a formal education, and start his path to the Supreme Court. (You may have read about that home in Savannah.) Later, Justice Thomas de facto adopted his grandnephew to give him a better life. I would think Justice Thomas's life experiences may have some relevance here. But as usual, he is ignored.