Thomas and Alito: The Anti-Gorsuchs on Tribal Rights

In the wake of today's blockbuster decision in Haaland v. Brackeen (upholding the Indian Child Welfare Act against constitutional challenge), and somewhat-less blockbuster decision in Lac du Flambeau Band of Lake Superior Chippewa Indians v. Coughlin (holding that tribal sovereign immunity is abrogated by the bankruptcy code), Josh Blackman observes that Justice Gorsuch appears to have ruled in favor of tribal parties in every case he's heard while on the Supreme Court. There's one case on that list that is arguably a bit dicey -- Yellen v. Confederated Tribes of Chehalis Reservation -- but by and large Justice Gorsuch's strong affinity for Indian tribes and tribal rights is very well-known.

Blackman thus asks whether Gorsuch has "ever written an opinion that ruled against an Indian Tribe or Member?" It's an interesting question. But reading Blackman's list, I noticed that in every case where Gorsuch ruled in favor of tribes, Justices Alito and Thomas were on the opposing side. He even recognizes that Gorsuch "is consistently on the other side of Justices Thomas and Alito" on these issues. Gorsuch has never written a unanimous opinion on a tribal rights question because in every case (at least) Thomas and Alito have voted against the tribes. Just as Gorsuch has apparently always voted on the side of tribal interests, it appears that, at least during Justice Gorsuch's tenure on the Court, Thomas and Alito have never voted in favor of tribal interests.

This is a striking streak -- maybe even more so than Gorsuch's 1.000 batting average. Obviously, Alito and Thomas don't have any general negative view towards Gorsuch's jurisprudential outlook -- they're aligned most of the time. And, whether you agree with Gorsuch or not, it's hard to gainsay that he is the foremost subject-matter expert on Indian law on the Supreme Court. So it's surprising that Alito and Thomas have never been willing to sign on to one of his opinions. When I was on the Eighth Circuit, my Judge (the late Diana E. Murphy) was generally recognized as one of the court's Indian law specialists, and so would typically get some amount of deference from her fellow judges on those questions -- not always, and not blindly, but it was there. Yet despite general ideological concurrence, and despite specific reasons to know that Gorsuch is the Supreme Court's Indian law specialist, Alito and Thomas have nonetheless been as implacable foes of tribal rights as Gorsuch has been a friend.

So again, asking whether Gorsuch has "ever written an opinion that ruled against an Indian Tribe or Member" is an interesting question. But still, I think there's also a corollary question to Blackman's. "When is the last time (if ever?) that Alito or Thomas have written an opinion ruling for an Indian Tribe or Member?" Thomas and Alito have been on the Court longer than Gorsuch has, so their record stretches back further than his tenure. But if we wonder as to why Gorsuch is so friendly to tribes and tribal interests, we perhaps should be equally curious as to why Thomas and Alito are so hostile to them.

Cannibalistic Precedent-Eating Leopards

There's a darkly amusing pattern that emerges during periods of Republican governance. As a general rule, Republicans support deregulating any arena to enable maximum exploitation and abuse of vulnerable people. In particular cases, though, individual Republicans might have personal reasons for opposing such exploitation and abuse. They have a niece who is diabetic, so they support limiting the price of insulin, or they have a sibling who is disabled, so they support expanding anti-discrimination protections for the disabled, or they have a parent with cancer, so they support enhanced government funding for cancer research, or they have a friend who died of gun violence, so they support reasonable gun control regulations.

The problem, though, is that while each Republicans has their personal exception, they don't have the same exceptions. So for each exception, the Republican is left alone with only Democrats backing his initiative, and is shocked and dismayed that his colleagues could be so heartless as to not even support insulin price limits/disability protections/cancer research/gun control. They then dutifully return back to the Republican mass and vote against their colleagues' exceptions, in accordance with the general rule, and so none of the exceptions ever pass. Rinse, wash, repeat forever.

One suspects we're about to see a similar dynamic on the Supreme Court, with a 6-3 conservative supermajority that is out to draw blood. For the most part, the six right-wing votes are aligned -- like all Republicans, they are eager to jump on any opportunity to hurt the vulnerable and historically marginalized. But on individual issues, there may be an exception for a particular Justice. And that Justice will make a plea for his or her colleagues to slow down, to respect precedent, to here make an exception to the general principle of "the Constitution means what the founding fathers Texas GOP platform committee says it means". And the colleagues will say "LOL no, get bent," and the typical 6-3 decision will just be a 5-4 decision instead.

Like with congressional Republicans, the "exceptional" justice will rotate depending on the issue. On abortion recently, it was Chief Justice Roberts, whose opinions in Dobbs and Jackson were summarily ignored by his colleagues. Today, it was Justice Gorsuch on Indian law, as the Supreme Court in Oklahoma v. Castro-Huerta, over a passionate Gorsuch dissent, radically undermined tribal sovereignty and cut off a signature Gorsuch opinion from just a few years back (McGirt v. Oklahoma) at the knees.

McGirt was a 5-4 opinion which held that much of Oklahoma remained tribal land, and that therefore under longstanding Court precedent the state of Oklahoma lacks criminal jurisdiction over crimes committed by Indians in those areas. Many of us, myself included, wondered whether McGirt would survive the new regime on the Court (nobody really knew Barrett's position on Indian Law issues). But boy were we thinking too small. The Court did not overrule McGirt, it overruled Worcester v. Georgia, the famous case that respected Cherokee tribal autonomy against attempts by Georgia (with a healthy assist from Andrew Jackson) to obliterate the tribe. Nixing Worcester was not to my knowledge on anyone's radar screen. But the YOLO Court must have asked itself why it should settle for overruling a case from 2020 when you can take down a seminal Indian Law case from 1830 and neuter the 2020 one in the process? Now states presumptively have criminal jurisdiction over crimes committed by Indians on tribal land, undoing nearly two centuries of law and precedent that respected tribal sovereignty in this area.

Justice Gorsuch's dissent is quite strong -- and, in fairness, this is an area where he's been consistently excellent on. But I can't help but feel like it is one big cry about precedent-eating leopards eating his precedent, when he himself is part of the same pack of precedent-eating leopards. Yes, they're cannibalistic precedent-eating leopards and they're coming for you too. You'll do the same to one of them shortly. What sympathy do you expect here?

This teeny, tiny bit of schadenfreude is the only bright spot in yet another grim day from the Supreme Court, which just is bestowing horror after horror upon the American people.

Fraud Squad! Roundup

In a meeting, I got a phone call from my bank about potentially fraudulent transactions on my credit card. Had I recently ordered $50 worth of fast food pizza? No, I hadn't -- and so the account is frozen, and presumably the charges will be reversed.

An hour later, upon returning to my desk, I had the bizarre joy of seeing a confirmation from Domino's promising me that my "pizza is on the way [to Houston, Texas]!"

Anyway, long story short: I'm getting pizza for dinner tonight.

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Jenny Singer of the Forward interviews Young Gravy, a Black Jewish rapper (and GW student). It's a really interesting and worth your time (I'm saying that not just because I think I played a role in putting the interview together!).

I think I missed this when it came out, but a Texas court struck down the Indian Child Welfare Act's adoption rules this past fall, saying that act's preferences for Indian children to stay with Indian families was racially discriminatory against non-Indians. The Judge, incidentally, was Reed O'Connor -- the same guy who just struck down Obamacare. He's certainly setting himself up as the go-to-guy for tip-of-the-spear conservative judicial activism.

Alabama was all set to execute a Muslim inmate -- but refused to allow a Muslim chaplain to be present with him during the execution (they did offer a Christian chaplain, which unsurprisingly the inmate did not consider to be a satisfactory substitute). 11th Circuit stays the execution due to the "powerful Establishment Clause claim" (and plausible RLUIPA claim). Alabama is appealing to the Supreme Court.

A new poll finds that over half of Israeli Jews agree that the controversial "nation-state" law must be either abandoned outright or fixed to confirm the state's commitment to democratic equality for all citizens.

A Cameroonian official has apologized for threatening an ethnic minority group by comparing them to Jews in pre-WWII Germany, namely: "In Germany, there was a very rich community who wielded all economic power .... They (the Jews) were so arrogant that the German people were frustrated. Then one day, a certain Hitler came to power and put them in the gas chambers."

I have no takeaways from the Likud primaries except celebrating Oren Hazan's imminent departure from the Knesset. Goooood riddance.

Iraqi Jews commemorate family members who were "disappeared" by state secret police.

Spring Break Roundup!

It's Spring Break! Sadly, that's markedly less exciting when you're 31 years old and revising article drafts.

Nonetheless, it does present a good opportunity to do a roundup.

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Kate Manne has an incredibly powerful essay on sexual violence, the struggles over reporting it, and why men get away with it. It follows on Martha Nussbaum's revelation, in a lecture last year, that she was sexually assaulted at 20 years old by a famous actor and her explanation for why she didn't report it. This is a must-read.

A neat looking art exhibit by Indian Jewish artist Siona Benjamin.

Truly every dark cloud has a silver lining: Donald Trump's army of internet trolls is in a state of panic over the upcoming rollback of internet privacy protections.

Hungary's right-wing government looks to try to close the Central European University. CEU was founded by George Soros, and if what the Hungarian right says about Soros sounds familiar, that's because it's identical to what the American right says about him. And if talking about shadowy international Jewish financiers threatening our way of life sounds a wee bit antisemitic when Hungarians do it, well, thank God for American exceptionalism.

Mayim Bialik and Emily Shire on Zionism and feminism (it's the latest salvo in this whole thing).

Maajid Nawaz, a former Muslim extremist turned liberal reformer, is profiled in the New York Times magazine. It is hardly uncritical, but it does seem to support the argument that the SPLC did a hatchet-job on him. And the observations about why it is difficult to promote "eat-your-peas" secular liberalism have resonance well beyond the Muslim community.

2016's Opening Roundup

It's a new year, and so it deserves to be kicked off with a roundup!

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Jeannie Suk and Jake Gersen have posted a draft of their forthcoming article "The Sex Bureaucracy" (forthcoming this summer in the California Law Review). I saw them workshop this paper at Berkeley last fall, and it is certainly going to provoke discussion (I think it raises some important points, though there is a lot I disagree with).

The Supreme Court may be about to eviscerate tribal court civil jurisdiction over non-Indians who engage in consensual relations with the tribe or its members. This is unnerving for a host of reasons. First, I thought that the issue was settled by relatively recent precedent (the Tribe's attorney, Neal Katyal, is right that the Supreme Court's "tribal exhaustion" cases make zero sense if civil jurisdiction doesn't exist). Second, it threatens to reverse decades of hard-won progress in the courts to recognize and respect Indian sovereignty. And third, the argument forwarded by several Justices that tribal courts pose an inherent due process risk to non-tribal members because the juries will be comprised of Indians is flatly outrageous, especially given the existence of the Indian Civil Rights Act.  As Justice Breyer observes, this is no different from a citizen of Alabama getting an all-Mississippian jury in Mississippi state court, and just as with diversity jurisdiction generally (which is authorized by Congress but not a due process right) if Congress identifies a problem Congress is free to step in and regulate.

Israel has finally withdrawn its nomination for Dani Dayon to serve as Ambassador to Brazil. Brazil was set to publicly reject the appointment of the former settler leader, and the entire spectacle was yet another unforced diplomatic error by the increasingly hapless Netanyahu foreign policy machine.

An Israeli soldier who passed on confidential IDF information to terrorists (in this case, those of the "price tag" variety) has been sentenced to four years in prison. If only we could do the same to the right-wing MKs who did the exact same thing (Agricultural Minister Uri "If a person who transfers information about IDF movements is a spy, then I am a spy" Ariel, I'm looking at you).

Zeynep Tufekci has a touching editorial in the New York Times about "Why the Postal Service Makes America Great." This hits me where I live. First, I'm never prouder of being an American than when talking with immigrants about how wondrous they are about America. Immigrants, of course, are people who almost by definition made incredible sacrifices (social, financial, sometimes physical) to come here because they believe in their bones in the American dream. They have an excitement about America that is infectious and exhilarating. But separately, I too have long been in awe of the U.S. postal system. It is nothing short of amazing that I can address a letter to anyone in the country, no matter what far-flung flyspeck village they might live in, and have it delivered to them in a timely and reliable fashion.

Binjamin Arazi offers up the progressive case for Israel. It's quite good -- most posts in this vein quickly become smarmy declarations about how good the gays have it or how Israel is "the only democracy in the middle east!" This one, by contrast, puts the focus where I do: on progressive understandings of oppression and liberation (here applied to Jews). Still perhaps a little smarmy, but definitely below median (and who am I to judge on that front, anyway?).

Jindal for VP

There's got to be a reason I never thought of it before. Andrew Sullivan reports rumors that Louisiana Governor Bobby Jindal may be on John McCain's list of potential VPs. It'd make a great political counter to an Obama candidacy. Jindal's Indian-American, so it isn't an exact parallel (but that makes it easier to dodge the inevitable pandering charge), while still being historic (Indians are a special race case anyway). And it's not like he'd be plucked from complete obscurity -- Jindal's been a GOP rising star for awhile now, and has a good many people in the Party excited.

Americans tend to like it better when Republicans usher in their great progressive leaps forward (cf., Nixon goes to China), because it gives them all the symbolism without the risk that anything substantive will change. It'd be interesting to see how much significance would be ascribed to Jindal's ascension as VP. Obama's potential election as President has led a certain class of White pundits to proclaim it as evidence that anti-Black racism is effectively over. Would Jindal's election still be used to justify the same claim (because Whites have overcome their racial animosity as evidenced by Jindal, ipso facto Whites no longer harbor racist sentiments toward Black people)? It'd be convenient, but still rather difficult I think to argue.

Racial Geography: The Indian Question

A comment dropped by PG on my "French Model" post mentioned the status of Indian-Americans in American racial discourse. She points to their exclusion from the traditional Black/White binary, but I think the problem is yet deeper than that, and when I try and speak of Indian-Americans from a racial prism, I run into all manner of problems.

Here's the deal. I think America has, for now, settled on roughly the following divisions in race: White, Black, Latino, Native American, and Asian. Arab strikes me as being seen more as an ethnicity than a race, but that may be changing with the whole "clash of civilizations" rhetoric surrounding the war on terrorism (there's some really interesting literature about how Arabs "won their Whiteness" in legal cases back when America still made serious racial distinctions in its immigration laws). But aside from Arabs, Indians are the group that really gets left out. But it's interesting as to why.

In terms of racial stereotyping, I feel like Indians should be grouped with their geographic compatriots, (East) Asians. Aside from the fact that Indians are from, well, Asia, they are viewed in much the same way by Whites as Asians are. The stereotypes are predominantly (not completely) positive. They are seen as academically advanced, even nerdish. Mockery tends to be based around accent (the most prominent uniquely Indian negative stereotype, the Apu-type shopkeeper, is based heavily around this). Sometimes they are seen as competitive threats (taking our jobs), but are not usually considered inferior (sort of like Jews). They are not seen as particularly criminal or violent. Interracial relationships between Whites and Indians, like White/Asian pairs, are relatively accepted compared to other cross-racial mixes.

Yet, I don't think that when most people talk about Asians as a race, they include Indian-Americans. Why is this? In America, race is inextricably linked to color. That's why the binary races are called "White" and "Black". Archaically, you'd see Native Americans called the "red" race ("Redskins"), Asians "yellow", Indians "brown", and Latinos "tan." Today most of that has fallen by the wayside except White/Black. But the mental linkage remains, and let's face it--east Asians and Indians are of a different color. Hence, I think we have a lot of trouble placing them as part of the same race.* It'd ruin our neat framework that unites race and color.

Ideally, the tension Indians bring out between color-centric and characteristic-centric manners of racial categorization would help reveal some of the instability of racial categories, and would lead to some more critical dialogue about what it means to be part of a "race". Unfortunately, America as a nation seems to have a collective inability to deal with complexity ("John Kerry is too nuanced for me!"), so that's out of the question. What we get instead is Indians being dropped out the conversations entirely, so we don't have to deal with the issues they raise to our basic conceptual schema. Similarly, non-Arab Muslim states are either simply grouped as the same as their Arab neighbors (Iran, Pakistan), or relatively ignored when talking about how Muslim governments do or do not perform (Turkey, Indonesia). Arab=Muslim=Simple. Arabs being of many religions, and Muslims being of many ethnicities, is not simple. Intersectionality questions, ditto ("Black AND Woman? One at a time!").

So to answer your concern, PG, the reason Indians are absent from American racial discourse is because they ruin our neat conceptual frame. Stop complexifying our simple little world.

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*To be clear, I don't think we actually follow any of our racial categorization procedures to their logical conclusion, because it would expose the concept of race as the absurdist fantasy that it is. Color doesn't fit because it's nearly impossible to distinguish the hue of Latinos from that of Southern Europeans. Stereotypes don't work because they don't actually track groups neatly like we pretend that they do. Biology doesn't work because ethnically related groups are spread out too far to keep our idea of "distinct" races--Finns and Koreans are more closely related to each other than they are to their geographic neighbors, but no racial categorization scheme I've seen has grouped them together.

UPDATE: I'm withdrawing the Finn/Korea connection claim because I've been unable to find significant corroberating evidence beyond my original source (my tour guide when I was in Finland). I have noticed some similarities in physical appearance, and have since read some evidence for the linguistic connection, but it isn't strong enough to base a claim on.