Justice Clarence Thomas on Thursday delivered a tongue-lashing to the majority of the Supreme Court, which, in a 7-2 decision, endorsed the Indian Child Welfare Act adopted by Congress some years ago.
That law puts the federal government in the center of child welfare disputes when the children are members of Indian tribes, or even just eligible. Or have a family member who’s eligible.
The majority circumvents the federalism components of the U.S. Constitution which gives states authority in such cases, he charged.
At issue is the welfare of children who are unwanted by parents who may or may not be a tribal member. The law allows the tribes to dictate their lives, where they will live, and even their safety.
Thomas charged that there should be “alarm bells” over a case in which the federal government is regulating “child-welfare proceedings in state courts,” as the federal government “lacks a general police power to regulate state family law.”
He noted the majority conceded that the law lets the federal government “override state family law by dictating that state courts place Indian children with Indian caretakers even if doing so is not in the child’s best interest.”
“It imposes heightened standards before removing Indian children from unsafe environments,” he warned.
He said the conclusion from the majority, that no one had shown that Congress exceeded its powers in adopting the requirements, “gets things backwards.”
“When Congress so clearly intruded upon a longstanding domain of exclusive state powers, we must ask not whether a constitutional provision prohibits that intrusion, but whether a constitutional provision authorizes it,” he said.
He said the majority cited a “smorgasbord” of constitutional concepts on which to hang the law, but “not one of them works.”
He explained the Indian Commerce Clause is about commerce, not children, there is no treaty involved, and foreign-affairs powers “have no application.”
WND has reportedly multiple times on disputes that have arisen from the scheme allowed by Congress, and the tragedies that have resulted, including a child ripped from a caring foster home, the only home the child had ever known, to be placed with a non-relative states away because that person’s spouse was eligible to be part of a tribe.
Thomas explained the majority “pointed to nothing in the text of the Constitution or its original understanding” to support its claim.
“Properly understood, the Constitution’s enumerated powers cannot support ICWA. Not one of those powers, as originally understood, comes anywhere close to including the child custody proceedings of U. S. citizens living within the sole jurisdiction of States. Moreover, ICWA has no constitutional basis … Virtually all of this court’s modern Indian-law precedents—upholding laws that regulate tribal lands, tribal governments, and commerce with tribes—can be understood through a core conceptual framework that at least arguably corresponds to Founding-era practices. To extend those cases to uphold ICWA thus would require ignoring the context of those precedents, treating their loose ‘plenary power’ language as talismanic, and transforming that power into the truly unbounded, absolute power that they disclaim.”
He added, “The Constitution confers enumerated powers on the federal government. Not one of them supports ICWA. Nor does precedent. To the contrary, this court has never upheld a federal statute that regulates the noncommercial activities of a U. S. citizen residing on lands under the sole jurisdiction of states merely because he happens to be an Indian. But that is exactly what ICWA does: It regulates child custody proceedings, brought in state courts, for those who need never have set foot on Indian lands. It is not about tribal lands or tribal governments, commerce, treaties, or federal property.”
WND has reported on the impact of the ICWA including a case in North Dakota several years ago when twin sisters were taken from a white foster parent and returned to an abusive family on a reservation, where one of the girls was killed by her grandfather’s wife.
Joe Biden’s administration argued in the case for the racist practice the law requires.
Earlier, the high court allowed Lexi Page, 7 when she was taken away from her white foster parents, to be handed over to a tribe that claimed she was 1/64th Indian.
In Minnesota, two parents, from different families, went to court after county officials moved two custody cases to Native American tribal court without the permission of the parents, violating their rights under federal law.
In the California case, Lexi had lived with potential adoptive parents and siblings after her biological family disintegrated because of drugs and crime when she was just months old.
Rusty and Summer Page, who took the girl in and wanted to adopt her, however, lost their effort when California courts ruled she was subject to the ICWA because she was 1/64th Indian. That gave the Choctaw tribe in Oklahoma absolute control over her future, amid protests that their decision wasn’t in her best interests. The tribe sent her to live with non-Indian distant relatives.
In the Minnesota case, the Thomas More Society said the parental rights of James Nguyen and Michelle Steinhoff “have been usurped in matters involving each of their minor children because the state of Minnesota is placing Native American tribal law above federal law.”
The complaint, in U.S. District Court in Minnesota, explained that although Nguyen’s former spouse has documented drug problems, and Steinhoff’s former spouse a multitude of criminal convictions, the tribal-member spouses were given custody of their children.
In the North Dakota case, documented by the Goldwater Institute, Laurynn Whiteshield and her twin sister, Michaela, were raised by Jeanine Kersey-Russell, a Methodist minister and third-generation foster parent in Bismarck, North Dakota.
When the twins were almost 3 years old, the county sought to make them available for adoption. But because they were Indians, their fates hinged on the Indian Child Welfare Act.
The Goldwater Institute said the Spirit Lake Sioux tribe “had shown no interest in the twins while they were in foster care.”
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“But once the prospect of adoption was raised, the tribe invoked its powers under ICWA and ordered the children returned to the reservation, where they were placed in the home of their grandfather in May 2013.
“Thirty-seven days later, Laurynn was dead, thrown down an embankment by her grandfather’s wife, who had a long history of abuse, neglect, endangerment, and abandonment involving her own children.”
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