Custody of Indian children, protection from tribal bankruptcy and jurisdiction for criminal cases are on the agenda today – SCOTUS Today | Epstein Becker & Green

The rights of the Indian tribe were at the heart of yesterday’s Supreme Court decision. In one case, the court ruled that the federal bankruptcy law removed the sovereign immunity of tribal governments. And in another case, this time involving upholding tribal rights, the court upheld the constitutionality of the Indian Child Welfare Act (ICWA), with its arguably discriminatory provision requiring Indian foster or adopted children to be placed with Indian caregivers. Judge Gorsuch, perhaps the most interested and knowledgeable member of the court on tribal rights and interests, was the only dissenter in the bankruptcy case and provided a unique historical perspective in a scholarly argument in the ICWA case. Finally, a court ruled unanimously that the constitution allows for a retrial of a defendant who was tried in an inappropriate place by a jury from the wrong district. Three interesting and detailed statements, none of which reflect a major disagreement in the court, although Justices Thomas and Alito may seem to live on an island of their own.

Haaland v. Brackeen is the case that arose out of multiple custody cases governed by the ICWA, a law aimed heavily at “keeping Indian children connected to Indian families.” In governing governmental adoption and foster processes involving a Native American child, the law mandates a hierarchical preference that accords preference to Native American families or institutions from each tribe, not just those with ties to the child, and the child’s tribe can change a prioritization order. In most cases (unless a court determines another “good cause”), the preference of the Indian child or parent cannot override the law or tribal decree. The present case was initiated by a birth mother, foster parents, adoptive parents and the State of Texas. They all disputed the ICWA’s constitutionality because it was outside the powers of Congress, and claimed that several of its provisions violated the Tenth Amendment’s “principle of anti-commandeering.” Against arguments relating to, among other things, anti-delegation, separation of powers and the rights of states in family law. With only Justices Thomas and Alito dissenting, Justice Barrett wrote for the majority and denied the petitioner’s Article I claim. In doing so, he reiterated the long line of instances in which it was described that Congress had “complete and exclusive” legislative powers in relation to Native American tribes, derived from the Indian Commerce Clause of the Constitution empowering Congress “[t]o regulate trade. . . with the Indian tribes”, US Const., Art. I, §8, cl. 3 and the treaty clause of Article II and also a historical precedent regarding Indian relations. Petitioners’ negative objections to the ICWA’s preferential provisions on involuntary procedures and placement procedures were largely dismissed on the grounds that they apply “on an equal footing” to both public and private actors. Eventually, the court chose not to bring equality and non-delegation claims with ICWA, as neither party had authority to bring them.

Brian Coughlin, who borrowed money from a federally recognized Native American tribe before the bankruptcy, complained that he was subjected to abusive practices when the tribe ignored the automatic suspension provision of the federal bankruptcy statute. The tribe denied coverage by the code. For all but Justice Gorsuch, Justice Jackson, in his opinion in Lac du Flambeau Band of Lake Superior Chippewa Indians v[s]“For certain purposes, 11 USC §106(a) extends to federally recognized Native American tribes. While Congress must “make unequivocally clear” its intent to waive sovereign immunity, the waiver provision of Section 106(a) of the Code and the definition of “government entity” in Section 101(27) taken together clearly result in the waiver of sovereign immunity of recognized entities tribes. Since state-recognized tribes otherwise have the power to assert sovereign immunity, they are clearly within the purview of the code.

Finally, in Smith v. United States, an opinion of Judge Alito, a court unanimously ruled a split in the counties and ruled that the Constitution permits the retrial of a defendant who had been found guilty of an unconstitutional trial at the wrong venue and performing before a jury from the wrong district. Except where prohibited by the double jeopardy clause, which is not the case in this case, “it has been a longstanding rule that if a defendant obtains the quashing of a previous, unsatisfied conviction, he may be retried in the normal course.” “In any circumstance outside of the expedited trial clause, the strongest appropriate remedy for wrongdoing is a new trial, not a judgment barring retrial.” The case employs two constitutional clauses, the forum clause and the vicinage clause, that are well known to federal prosecutors , but not many others. The Court concluded that none of these clauses constituted an exception to the rule permitting the retrial of a person whose conviction was overturned in the circumstances set out herein. The jurisdiction clause provides that the “trial of all crimes. . . takes place in the state where the . . . Crimes are said to have been committed.” US Const., Art. III, §2, Clause 3. These language do not imply that a new trial in the right place is not an adequate remedy for the violation, or that a new trial is somehow imposes undue burden or inconvenience on the accused. Although the most appropriate place for a hearing might be the defendant’s place of residence, the jurisdiction clause is linked to the place of the crime. So convenience is not an issue. The sixth amendment’s vicinage clause guarantees “the right to…” . . an impartial jury of the state and county in which the crime is said to have been committed.” Again, nothing in this clause indicates that a retrial is insufficient where the conditions have not been met. The court finds a useful analogy in cases where an accused is convicted by a jury that does not reflect a fair cross section of the community. A look at the historical background, to which many members of the Court are inclined, suggests that common law does not derogate from sufficient retrial.

In this decision, the court reiterated that the use of the double jeopardy clause stems from the fact that it is impossible for courts to be certain of the reason for the verdict without improperly dealing with the jury’s deliberations. Therefore, the basis for the jury’s verdict cannot be grounds for overturning an acquittal. As a general rule: “[c]culpability. . . is the touchstone for determining whether a retrial is permissible under the double jeopardy clause.” Thus, if a trial ends in a finding that “the criminal guilt of the accused has not been established”, a retrial is barred. On the other hand, a retrial is permissible where a trial “concludes on a basis unrelated to factual guilt or innocence of the crime committed”. [the defendant] accused”, for example in a case where the jury deadlocked (and here too).

I am still bombarded with questions about when and how the court will resolve the affirmative action issue in the Harvard and UNC cases. The answers remain open, while less controversial cases continue to be decided.

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