The Indian Country Media Network Against Supreme Court Justice Thomas

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( — November 15, 2013) Kansas City, Missouri


An article published recently on the Indian Country Today Media Network, entitled “Deaf, Dumb and Blind Justice: Thomas Is Wrong on Tribal Sovereignty”, looks at the rationale behind Associate Supreme Court Justice Clarence Thomas’s written opinion that the Indian Child Welfare Act (ICWA) is in fact unconstitutional. Justice Thomas’s opinion and the Indian Country Today Media Network article are written in response to the custody battle being fought by Dusten Brown, a citizen of the Cherokee Nation, for his daughter Veronica Rose, who was adopted without his consent.


In the article, Mark C. Van Norman, Executive Director for the National Indian Gaming Association, cites the Treaty, Commerce, Supremacy, Apportionment and Property clauses of the U.S. Constitution, as well as the 14th Amendment, as support for the constitutionality of the Indian Child Welfare Act. Van Norman also points out the intentions of the Article of Confederation and the founding fathers concerning U.S. relations with Native Indian tribes. After exploring the ramifications of each of the cited Constitutional clauses and putting them in the historical context provided by the Articles of Confederation and statements from George Washington and Thomas Jefferson, the article summarizes that the only the Federal government has power to regulate the sovereign tribal nations, and that individual states do not have any jurisdiction over American Indian affairs.


In the on-going case of Baby Veronica, the Indian Child Welfare Act would prevent the state of South Carolina from allowing Veronica’s adoption against her father’s will. Because Veronica’s father is a member of the Cherokee Nation, the state of South Carolina is explicitly prevented from taking his child by the ICWA. The recently published article concludes that the only justification for Thomas’s position is that in the Baby Veronica case “no furs, beads or kettles, hatchets or guns were traded”. So according to Justice Thomas, the States cannot regulate commerce and adoption does not fall under the umbrella of commerce. The article states that Thomas’s position completely ignores the history of United States relations with tribal nations, the text and intention of the U.S. Constitution, existing treaties and statutes, and a “rich body of Supreme Court precedent”.


The Indian Country Today Media Network recently published Mark C. Van Norman’s article in attempt to raise awareness for the on-going custody battle over Veronica Rose and for the need for protection for Native American families.