I’d been watching this case a little bit and I’m happy for the outcome, because as I mention below I just wasn’t sure why I should root for the challengers. Of course Thomas and Alito dissented, but Amy Coney Barrett did not, which did surprise me.
Though I’ll be honest that I wasn’t sure where to mention this. Is it really all that political, or am I naive? I mean, why would someone object to this?
Apart from pure meanness or some kind of concern about those kids being raised by Native relatives for some reason?
I’m pleasantly surprised as well. A few months ago I heard an NPR show about this case that seemed very pessimistic about the prospects for success. As to why the opposition, basically racism, a desire to eliminate tribal sovereignty and an unspoken assumption that affluent whites make better parents than native Americans.
The Ojibwe staff and faculty up here are celebrating today, and this is a major component - there is a strong belief among them that the money behind this case is the same money behind resource extraction industry that has long-aimed to erode tribal sovereignty so that they can drill/mine/etc. on reservation land.
The first argument presented was that ICWA did away with the “best interest of the child” test used by most states.[52] McGill argued that ICWA violated the equal protection clause by treating Native American children differently, and argued that Congress did not have the authority under the Constitution to regulate Native Americans throughout the United States.
It’s not that a native home is inherently worse, it’s that this law says that a worse native home is given preference over a better non-native home (for whatever criteria are normally used to determine ‘better’ and ‘worse’ for a child when it comes to adoptions).
In the situation that gave rise to this case, the non-native Brackeen family adopted a native boy, and later attempted to adopt his sister. The law in question was used to prevent that and place the girl with a native family. This does not seem like a great outcome as the children would likely both be better off together.
Also, we all benefit from the equal protection clause, so if this violates it as the plaintiff claimed then that’s bad for everybody.
I don’t really feel strongly either way about this case, but I don’t think everybody rooting for the Brackeens in this case had malicious motives (was there even anybody strongly rooting for the Brackeen side in this case? I don’t think it’s a particularly hot topic for most of the country.)
It’s interesting to read Gorsuch’s concurrence, who once again demonstrates a deep understanding of and sympathy for what Native Americans have endured at the hands of the American government.
As a parent of a transracial adoption I am not completely sure what I feel.
But the imposition of a traditional majority culture view of family on the decision of what is “better” and “worse”, a lack of comprehension of various Native extended family traditions, and the history of disrespect to attempted erasure of Native cultures, are very key. The decider of better decides from a different cultural context and vantage than Native culture.
The argument is that given the differences in culture, and the treatment that young native people receive from non-native communities, a non-native home will almost always be worse for native children, and that it’s inherently better for native children to be raised by their extended family, even if their parents can’t look after them. The native view is that raising children is not always done by a nuclear family, so you have to assess the possibilities within the extended family.
And, there’s also the concern expressed by native people, cited by @fedman1 that adoption by non-natives is an attempt to gradually eliminate native populations.