Law360, ICT and the Houston Chronicle were among the news outlets that sought out McGuireWoods Washington, D.C., partner Mike Andrews’ insights on two June 15 U.S. Supreme Court rulings affecting Native American tribes.
In Lac du Flambeau Band of Lake Superior Chippewa Indians, et al. v. Coughlin, the high court held that that Native American tribes can’t assert the defense of sovereign immunity in bankruptcy court. The Supreme Court ruled that a provision in the Bankruptcy Code prohibiting a lengthy list of “governmental units” from claiming sovereign immunity applies to tribes, even though the statute’s list does not specifically include tribes.
Andrews told ICT, which covers Indigenous peoples, that he was disappointed because the Supreme Court should have sent this issue to Congress to decide. The opinion creates a slippery slope and could bring forward more disputes that courts should not decide, said Andrews, who also leads McGuireWoods Consulting’s Native American policy group and formerly served as chief counsel to the Senate Committee on Indian Affairs.
“There’s been 46, 47 amendments to the Bankruptcy Act and not one person decided, ‘Oh, we should add tribes.’ Maybe there’s a reason for that,” Andrews told ICT. “I think that’s up to tribes through the legislative process, not the judicial process to make those determinations.”
Andrews spoke to the Houston Chronicle about the high court’s decision in Brackeen v. Haaland upholding the 1978 Indian Child Welfare Act, which aims to keep Native American adoptees with their tribes. While the opinion was a victory for supporters of the ICWA, concerns over the 14th Amendment’s equal protection clause linger for Native American communities, Andrews said. He also noted that non-Native American families still have a path to adopt Native American children, but the ICWA act gives children a chance to stay with their tribe or a Native American family first.