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Tuesday, July 11, 2023
Justice Alito's Naïve Faith in State Courts
Justice Alito's dissent in Haaland v. Brackeen complains that the Indian Child Welfare Act “sacrifices” and “disserves” the best interests of “vulnerable children" because it subordinates what state “family-court judges . . . determine to be in the best interest of a child to what Congress believed is in the best interest of a tribe.” Even putting aside his insulting insinuation that tribal placements are inevitably inferior, any attorney who has spent time in state family courts, as I once did, would know that even the most conscientious judges lack the time and resources to accurately predict how to benefit children in the future.
I develop this point in my new column at The Hill. Here is the gist:
To put it bluntly, a best-interest determination is often a crapshoot, as judges make educated guesses based on their own experiences, preferences and biases. In the cases of Native American children, removal from their tribal homes had historically been little more than legalized kidnapping, which ICWA was enacted to remedy.
In reality, there is no single best environment for every child, compared to which all others are inferior or victimizing, which a judge can determine with razor-sharp acuity. Despite Alito’s unwarranted confidence, it is nonsense to believe that tribal placements “sacrifice the best interests of vulnerable children.” On the contrary, there is no assurance that state family courts can unfailingly assess children’s best interests, much less weigh their own assumptions against the importance of maintaining a child’s cultural and tribal connections.
You can read the entire article (not paywalled) at The Hill, including a discussion of the 1858 case of Edgardo Mortara, a Jewish child removed from his family by Pope Pius IX because it was in his "best interest" to be raised as a Catholic.
Posted by Steve Lubet on July 11, 2023 at 02:23 PM | Permalink
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