SCOTUS Upholds ICWA, But Allows Discrimination


By Lee Egerstrom

Native sovereign rights and families scored a big victory at the U.S. Supreme Court in June with ICWA being upheld, but the celebration was short lived.

A series of court decisions that followed by month’s end laid waste college loan financial relief for students and graduates, including about 350,000 Minnesotans; stopped colleges and universities from offering educational opportunities through affirmative action admissions policies, and effectively said that you can discriminate against people if you claim it as a religious right.

The lone victory for Native Americans was the court’s defending the Indian Child Welfare Act (ICWA) of 1978 (Haaland v. Brackeen) that was designed to keep Native American children within their families and tribal nations.

From then on, the high court’s decisions weakened college admissions programs, maintained college costs from a federal debt forgiveness program, and stripped basic civil rights from LGBTQ people. All will add costs and raise future civil rights dangers for Native and other generally marginalized people.

After the affirmative action decision, University of Minnesota law professor and civil rights lawyer Myron Orfield said Minnesota and other like-minded states will need to explore ways around the decision. “I think Minnesota, and at least the other ‘Blue states,’ will need to find ways to undo the damage,” he said.

Harvard University and the University of North Carolina were challenged in the court. But the ruling will impact programs anywhere that are aimed at helping minority race applicants enter college for diversity and equity purposes.

Academia and education groups were horrified by the decision. All 14 Big Ten Conference university law school deans, including the University of Minnesota, supported affirmative action in joint filings. The University of St. Thomas and St. Catherine University in St. Paul were among Catholic universities across the nation also standing with Harvard and North Carolina.

“A bad decision,” Orfield said. “A real bad decision.”

It opens the door to all sorts of litigation he and other legal experts said after the decision was announced. Any effort at seeking diversity on campuses or, for that matter, in workplaces may now be ripe for legal intervention no matter how frivolous.
The Reuters news agency reported the court may have laid groundwork for future challenges to corporate diversity initiatives as well. It specifically mentioned federal programs aimed at giving minority contractors access to federally funded projects and contracts – important sources of work for Native entrepreneurs and tribal business ventures.

What can states do?
Orfield said that instead of using race as part of admissions policies, colleges and universities might consider geographic or other nonracial measurements. That could include family incomes or other measures of “underserved” communities to open the way for more diverse student bodies, he said.

Lower income communities and geographic neighborhoods, for instance, and programs expressly aimed at helping lift people out of poverty regardless of racial identity could be part of carefully crafted plans.

Orfield has experience along those lines, especially with housing programs.

The civil rights attorney and professor has held both state and federal positions and has assisted state level reforms in Minnesota, Illinois, Michigan, California, New Jersey, Connecticut, Massachusetts, Washington, Oregon and Maryland.

In an interview with The Circle, Orfield suggested the “Blue,” or more liberal and Democratic states that generally support civil rights and social development efforts, might well consider adopting a good program from the “oh-so ‘Red’ (conservative) state of Texas.”

After courts struck down Texas public universities’ admissions policies that encouraged diverse student enrollment in 1996, Texas developed what came to be known as the Texas 10 Percent Rule. It allows the top 10 percent of academic achievers at high schools to have automatic admission at state colleges and universities.

That 10 Percent Rule applies for all Texas high school graduates no matter how wealthy the community or how well supported a local school district’s academic program might be. It has survived legal attacks since while helping achieve the diversity the state universities sought.

Minnesota, it should be noted, achieved what appeared to be a similar strategy. The past session of the Minnesota Legislature passed state laws protecting Native tribal adoption rights if the Supreme Court struck down ICWA.

The new Minnesota law would protect tribal and family rights even if they ceased to be federally protected. Only one member of the Legislature voted against that law. It it was not needed. By a 7-2 vote on June 15, the Supreme Court upheld ICWA.

Lt. Gov. Peggy Flanagan (White Earth Ojibwe) noted that the cause was helped by people telling of painful experiences when children were removed from their families. “I’m grateful for all the people who have told stories over the decades to get us to this place, a decision that recognizes and protects our right to raise our babies,” she said in a statement.

Law professor Angelique EagleWoman, director of the Native American Law and Sovereignty Institute at Mitchell Hamline School of Law in St. Paul, said the ICWA decision was consistent with past rulings giving congressional authority for laws involving tribal relations.

She told Minnesota media, “It should signal that these kinds of litigation tactics and arguments are frivolous and a waste of time, money and judicial research.”

While it should, other legal scholars worry that it won’t. The mishmash of decisions that followed the ICWA ruling tossed out protections and programs designed to help minority and economically disadvantaged people, and overturned previously court supported civil rights for the gay community.

Minnesota political leaders, for the most part, were not impressed.

Following the affirmative action decision, for instance, Gov. Tim Walz issued this statement: “In Minnesota we know that diversity in our schools and businesses reflects a strong and diverse state. One thing is very clear: Minnesota is strong – and we’ll continue working to ensure that everyone has a fair shot to succeed here.”

Fourth District Congresswoman Betty McCollum called the decision “deeply disappointing.”

“This decision rolls back the progress we’ve made and the judicial precedent that’s been established to promote inclusivity and equity in higher education – undermining opportunities to make the higher ed system process work for everyone,” she said.

U.S. Sen. Tina Smith said the “radical ruling undermines critical efforts to redress historic mistreatment of people of color and will do real harm to students.”

Private schools and the University of Minnesota system told Minnesota media they are exploring how they might be affected by the affirmative action ruling. At first glance, the Minnesota State system of 33 colleges and universities sprawled over 54 campuses may be the least impacted since they have open enrollment policies for all Minnesotans.

But they weren’t spared from the reach of the court. At least their students weren’t.
In striking down President Biden’s student-loan debt relief plant, the court ruled the president didn’t have emergency power authority to reduce college debts. The plan he initiated as part of the pandemic relief efforts would forgive $10,000 in federal student loan debt to borrowers from families with under $125,000 in annual income, and up to $20,000 from federal Pell grant debt for people under that annual income level.

This decision affects 43 million Americans, including 767,000 Minnesotans. The Minnesota Office of Higher Education estimated that as many as 730,000 Minnesotans would have qualified for the $20,000 Pell grant relief.

“It would have been life-changing for millions of Americans and their families,” the president said after the ruling. And saying he will now seek other routes to lessen that college debt burden, he said the court rejected program “would have been good for economic growth, both in the short- and long-term.”

But there was one more shot at marginalized people still to come from the court. On June 30, it ruled a Colorado website company could discriminate against the LGBTQ community by using First Amendment religious rights to discriminate against same-sex marriages.

Simply put, people can put into action their now constitutionally protected religious right to discriminate.