It has been barely six months since the Supreme Court of the United States ordered women to return to their original intended role as mere dutiful chattel to cook and clean and to be subservient to the demands and “needs” of largely white Christian men under the controlling watch of the politics of a given state. Not satisfied with smashing the clock of gender equality, the Supreme Court, state legislatures, and persons of dark voice and determined malevolent agenda, have moved on in a palpable effort to bully and batter communities that do not reflect their color, faith, sexual identity or voice.
Domestically, we live in times of all-too convenient self-righteous indignation. With nearly a public whisper, let alone outrage, like in Dobbs, under Haaland v. Brackeen the Indian Child Welfare Act (ICWA) may soon be relegated to mere historical footnote if the Supreme Court signs off on a modern-day residential school system by gutting ICWA, an essential hedge against the intended blanch of indigenous culture, tradition and, ultimately, Tribal sovereignty throughout the United States.
Haaland has its genesis in a challenge under ICWA by the Navaho Tribe which was subsequently joined by the Cherokee, Oneida and Quinault nations and the Morongo Band of Mission to stop an adoption of a Native child by a white Texas family which moved to have the Act struck down. Arguing that only states have power over child custody, and that “Indian” is but a racial classification and not a protected political status with direct historical roots to treaties and Congressional edicts, the Texas family contends protection of indigenous children alone violates the Equal Protection clause of the federal Constitution.
Under ICWA, placement of indigenous children with extended families and tribal communities was designated as a mandated priority with tribal input and oversight over all placement matters concerning Native young. Passed by Congress almost half a century ago with its genesis in age-old nation-to-nation treaties, the Indian Child Welfare Act was enacted to stop the theft of indigenous children routinely separated from parents, extended families, and communities by state child welfare and private adoption agencies to be placed with white families. Though not as glaring as the cut hair, silenced tongue and sex abuse endemic to earlier residential school systems, this more subtle version of cultural genocide was no less devastating with indigenous children stripped of their sense of identity and belonging… forcibly removed from Native communities by the tens of thousands.
At its core Haaland transcends the essential but narrow issue presented by the particular facts of this challenge. It aims directly at powers reserved to Indian nations as sovereigns that have entered into hundreds of treaties with the United States, that has benefitted from them, and from which a long-recognized body of federal Indian law and practices have evolved.
If Indians cannot be treated as sovereigns and if you cannot treat Indians differently from non-Indians, does that render all laws and treaties that respect tribal sovereignty and independence as unconstitutional and thus null and void? And what of the benefits that the United State and U.S. corporate elite have realized and continue to by virtue of treaties including access to and use of indigenous lands and waters; inter-state and cross-border rights of way; and trillions of dollars arising from pillaged indigenous natural resources?
With its veracious appetite to undo decades of social and political growth and equal protection to be sure, the Supreme Court has its eyes set on eviscerating other historical and constitutional bedrocks. Thus, in what may prove to be a seismic step back of centuries, under the long-vanished “independent state legislature theory” the Supreme Court may very well hold in Moore v. Harperthat state courts and constitutions are powerless in matters relating to federal elections, thus leaving the final word on how to proceed with them– and who and how one may vote — to the political appetite and drive of each independent state legislative body. Just what does this mean?
North Carolina argues with passion but poison that the Election Clause empowers state legislators alone to regulate federal elections, prohibiting any other state authority whether the courts or the governor from imposing any checks and balances on their unbridled power. In a time and place with a Supreme Court not owned by the Federalist Society or comfortable sleeping with the white sheets of the Klan, any such argument would be promptly dispatched with all deliberate speed by settled law with a unanimous per curiam denial.
Indeed, as a starting point, because the framers had grave and well-founded misgivings about state lawmakers, they left the ultimate oversight of federal elections to Congress which alone had the power to establish their rules. To do otherwise would permit national elections to be controlled on a state-by state basis by the diverse political whims and agenda of the states without any of the checks and balances otherwise applicable to state lawmakers.
Should North Carolina prevail in Moore, elections there and across the country would be thrown into utter bedlam leaving state legislators with the unchecked and non-reviewable power to nullify any and all election rules be they those established by state constitutions, voter initiatives or long-standing administrative procedures. While dramatic and arbitrary changes in settled electoral policies such as voter registration, mail voting, a secret ballot and prohibitions against de facto poll taxes come to mind, ultimately this preach of the independent state legislative theory here and now is nothing short of a legislative attempt through racial gerrymandering to return Black voters to their original foundational design as 3/5 human beings.
For nearly a century Jim Crow screamed don’t tell me how to run my life, my business, my community. For nearly a century, the owners of inns, bus stops, restaurants, motels and churches dictated without government interest, let alone interference, who could enter, who got served, who could shop, who could pray based on nothing more than the color of one’s skin. This private veto, Jim Crow raged, was a personal one which granted exclusive power to the individual to determine and to control who got the proverbial key to walk through their door. Long supported by the Supreme Court doctrine in Plessy v. Ferguson of separate but equal, Jim Crow normalized economic, educational, political and social handicaps creating a de jure second-class citizenship for Black women and men largely in the South.
Its end came not from any thunderbolt of decency, compassion or humanity, but largely from mass protest and civil disobedience and enforcement of the Civil Rights and Voting Rights Acts which were rooted in the Interstate Commerce Clause that outlawed discrimination in public accommodations such as privately owned restaurants, hotels, stores, schools and workplaces. The use of the Commerce Clause to ensure full equality for all citizens was ultimately upheld by a Supreme Court seemingly a world apart from todays in the landmark case of Heart of Atlanta v. United States.
Yet, today when it comes to the rights of the LGBTQ community to full opportunity and equality throughout the public and private square of society alike, this is a Supreme Court which apparently believes Jim Crow was but a bad dish served up long ago on dirty plates of the deep South.
Walking now in the comfortable homophobic shoes of Masterpiece Cakeshop v. Colorado Civil Rights Commission where the Supreme Court upheld the right of a baker to refuse to provide services for same-sex couples based on religious beliefs, the court will soon decide in 303 Creative v. Elenis whether the voice of one’s god can trump the Colorado Anti-Discrimination Act, which renders it discriminatory and illegal to refuse services to someone on the basis of “disability, race, creed, color, sex, sexual orientation, marital status, national origin, or ancestry.”
In Elenis the plaintiff, a wedding website designer, is unwilling to create websites for same-sex couples, saying it would go against her Christian beliefs. If history is indeed a harbinger of things to come and not, as we learned in Dobbs, the bind of long settled judicial precedence, it is likely the Supreme Court will once again say no to a same sex couple to obtain equal protection in the marketplace of today’s commerce clause.
Imagine how that same clause would rub up against a claim of religious freedom in this Supreme Court if, for example, a Muslim shop owner applying a hypothetical tenet of Islam limited female customer shoppers in the name of personal faith to but those wearing Hijab and escorted by male chaperones.
This quartet of cases says with determined Supreme Court voice and venom that if you are a woman, an Indian, Black or queer you need not come knocking on the doors of justice as to this court in this time they remain closed … a hateful judicial pathway, but a tease of a different time and place for now put to pasture.
These are but several cases in a long list of political prey targeted by members of the current court to undo; justices who have waited with sharpened personal political fangs for the day when minority dissents would become majority fiat, no matter who its victim or what their pain.
Throughout history the Supreme Court has, at times, built grand political bridges designed to close the chasm between ideal and practice and at others destroyed those constructed of hateful supremacist creed of all kind. Yet not before have members of its bench been so unleashed from the exercise of necessary judicial temperament and justice as to break loudly and with ease from protecting settled collective freedoms in pursuit of their own personal political agenda. And while these women and men of today’s bench are surely seasoned in the verbal massage of nuance it is clear they care less about the penumbras of justice than they do imposition of majoritarian values. For this we are all victims.