What a cruddy month for Native people and their rights, as if "Columbus Day" weren't insult enough. So far, we've had the Republican-dominated Supreme Court taking a dump on Native voting rights in North Dakota, and some shitty Republican idiot in Kansas vowing to send congressional candidate Sharice Davids "back to the reservation" (at least he resigned). Now it turns out the month started with a federal court judge in Texas declaring the Indian Child Welfare Act unconstitutional in a lawsuit brought by Texas Attorney General Ken Paxton, who is a Republican. Gosh, it's almost as if there were some factor other than "Native Americans" and "October" at work in all three.

In the Texas case, US District Judge Reed O'Connor overturned the Indian Child Welfare Act (ICWA), the federal law governing the adoption of Native American children, because you see the law's intent of keeping Native American kids with Native American families is "racist," according to the twisted logic of a Republican attorney general. O'Connor held the law -- put in place in 1978 to curb what tribes considered a longstanding policy of decimating tribes by adopting kids out to white families -- actually violated the Fifth Amendment's guarantee of equal protection. (It is in fact conforming to one of the UN's definitions of "genocide": forcibly transferring children of one group to another group.)

O'Connor also ruled the law violated the 10th Amendment by forcing states to modify their own laws to conform with a federal policy, in violation of the proper balance between state and federal sovereignty.

Killing off the ICWA is apparently a bigger thing on the Right than we'd realized. In a nice astroturfed op-ed in the LA Times, the Heritage Foundation offered its own impassioned take on how unfair the whole thing is to children and adoptive (white) families who are desperate to get their hands on healthy babies, using arguments that Paxton echoed: The ICWA puts "the interests of the tribe over the interests of the child," you see, and it has perverted the original intent of the law, creating a "separate and unequal child welfare system." Weep, won't you, for the racist horror being imposed by Native Americans on nice white adoptive parents:

In effect, Indian foster children — regardless of whether they live on a reservation, regardless of much or how little of their DNA is Native American, even regardless of their biological parents' wishes — may be adopted only by other Indians.

Funny how the Republican version of fighting racism always works out to white people's advantage, huh?

Not surprisingly, Paxton was ecstatic at the victory for states' rights, not to mention for full equality under the law:

Paxton cheered O'Connor's decision, arguing it protects state sovereignty as well as "the best interest of Texas children."

"ICWA coerces state agencies and courts to carry out unconstitutional and illegal federal policy, and decide custody based on race," Paxton said in a statement

Weirdly enough, the specific adoption at issue in the ruling was actually resolved when the adoptive parents settled out of court -- they kept the child they had fostered and then adopted. But Paxton's challenge to the ICWA continued, joined by cases from two other states. When it comes to white people adopting children, THAT'S an instance when Republicans are moved by the idea of families being ripped apart.

Also not surprisingly, Native Americans are pissed. Indianz.com, a publication of the Winnebago Tribe, notes that, federal court or no, the decision in this case is some heinous fuckery:

The outcome conflicts with numerous other rulings, which have determined that ICWA -- like most federal Indian laws -- is consistent with the recognition of tribes as sovereign governments. That's a political, not a racial, distinction, the courts have consistently noted.

O'Connor, however, went against decades of precedent from his courtroom in northern Texas, where no tribes are located. He said the federal government "did not prove—or attempt to prove" why Indian children need to remain connected to their communities.

The four tribes that were defending the case -- the Cherokee Nation, the Morongo Band of Mission Indians, the Oneida Nation and the Quinault Nation -- are still weighing whether to appeal the decision, although an appeal sure sounds likely given their joint statement:

"We remain steadfast in our commitment to defend the constitutionality of ICWA by all available means for one simple reason: If ICWA is struck down in whole or in part, the victims will be our children and our families, Native children and Native families," Chief Bill John Baker of the Cherokee Nation, Chairman Robert Martin of the Morongo Band of Mission Indians, Chairman Tehassi Hill of the Oneida Nation and President Fawn Sharp of Quinault Nation said in the statement on Friday.

The Native American Rights Fund and several other nonprofits representing Native rights and child welfare were pretty pissed, too. They're fine on lawyers and reject guns, but please send money.

Indianz.com also pointed out that the Goldwater Institute, another rightwing group that has long sought to dismantle the ICWA in the courts, was simply delighted with the ruling. The group said it's a great victory for the rights of individual Native American babies to be adopted out of their tribes, because after all, what could be more collectivist than a tribe? Respect to the blog for its deadpan observation that Barry Goldwater was one of the senators who voted for the ICWA in 1978.

Sadly, with Brett Kavanaugh, who's no friend of indigenous people's rights, on the Supreme Court, it seems unlikely the ICWA will eventually be upheld. It's all just one more example of the phenomenon The Atlantic's Adam Server pointed out:

The conservative majority on the Supreme Court today is similarly blinded by a commitment to liberty in theory that ignores the reality of how Americans' lives are actually lived. Like the Supreme Court of [the Post-Reconstruction] era, the conservatives on the Court today are opposed to discrimination in principle, and indifferent to it in practice.

And with the Senate throwing more and more of these creeps into lifetime appointments, it's not just a crap month to be Native American. It's a crap month -- or coming decades -- to be in America at all.

[Texas Tribune / WaPo / LAT / Indianz.com / Vox]

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Doktor Zoom

Doktor Zoom's real name is Marty Kelley, and he lives in the wilds of Boise, Idaho. He is not a medical doctor, but does have a real PhD in Rhetoric. You should definitely donate some money to this little mommyblog where he has finally found acceptance and cat pictures. He is on maternity leave until 2033. Here is his Twitter, also. His quest to avoid prolixity is not going so great.


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