Open Letter Campaign: Supreme Court Edition
This summer’s Supreme Court session has been wild and terrifying. Our rights, freedoms and protections were stripped in quick succession. For this special edition of our Open Letter Campaign, I’ll first do my best to explain the recent Supreme Court decisions and then end with two suggestions for letters to write.
To fully appreciate the impact of the recent SCOTUS decisions, it’s important to understand that these rulings are intended to reinforce White-Christofacist Nationalism. We see white supremacy reinforced in rulings that uphold racist systems, such as our education system. We see Christofacism reinforced in decisions that are based in Christian belief rather than established science. Cis-heteropatriachism is a facet of Christofascism. We see Nationalism reflected in decisions that allow American corporations to trash the environment, despite the disastrous global consequences.
Two decisions of the Supreme Court that are education related include Carson v. Makin which allows for public tax dollars to be used for private school vouchers, and Kennedy v. Bremerton School Dist. which allows for prayer in school. Together, these add up to state sponsored Christian indoctrination. I say Christian and not “religious” because we need to be clear that we are specifically dealing with Christofacism. As Indigenous people, we know what it means for the government to force Christianity on our children. We haven’t even begun to unearth all the bodies of murdered children from the sites of state and church run boarding schools.
For some background, Kennedy v. Bremerton School Dist. is a case in which a public high school football coach (Kennedy) was let go because he had taken to leading a prayer in the middle of the field after each game, and wouldn’t stop when he was told not to. He had been asked to stop by the school board, because they were concerned that his public prayer circle would be considered a violation of the Establishment Clause of the Constitution. The First Amendment to the Constitution provides us with freedom of religion and from religion. The Establishment Clause is the part of the First Amendment that protects us from the government establishing or endorsing a religion. It’s the basis for the separation of church and state. So when Coach Kennedy led his public prayer circle, he was endorsing his particular religion as an employee of the government.
The case itself is presented vastly differently by the two sides in this case. (See:The Supreme Court hands the religious right a big victory by lying about the facts of a case and What the Gorsuch-Sotomayor factual dispute in Kennedy v. Bremerton School District is about - The Washington Post ) In the majority opinion, Gorsuch claims that Coach Kennedy was merely engaging in private prayer, off to the sidelines, but Justice Sotomayor authored a dissenting opinion with photographic evidence to the contrary. Judicial interpretation can be incredibly complicated, but we should at least be able to trust in factual accuracy. The Kennedy v. Bremerton case did more than allow prayer back into schools, it showed that the SCOTUS is willing to disregard the truth in favor of their preferred Christian narrative.
The Carson v. Makin case upholds white supremacy in our education system by allowing tax dollars to fund voucher programs that can be used toward private education in schools not subject to the rules of public school. This was tried in the past. (See; The Racist History Of “School Choice”). This just serves to enforce de facto segregation. White people fought hard against school desegregation in the ‘60s. The find never ended, it just worked its way to the court system.
It’s important to bear in mind that the presence of White-Christofascism in the education system is not an abstract concern. For Native people, the threat of our children being forced into government-funding religious schools is very real. The trauma from the boarding school system is something that Native people are still dealing with today. We’re just now beginning to locate the bodies of the thousands of children that lie in unmarked graves on the grounds of boarding schools. The existence of government funded religious schools is a threat to our youth and the culture they are carrying forward.
Of the recent SCOTUS decisions, the most notable one is Dobbs v. Jackson Women's Health Organization which overturned Roe v. Wade. This effectively ended federal protection of abortion rights. Since then, the multiple states with trigger laws have put into effect varying degrees of abortion restrictions. In addition to preventing people from accessing the healthcare they seek in the form of abortion, these abortion bans have effected people’s access to necessary medicines. (See: State abortion bans prevent women from getting essential medication | Reuters and Texas pharmacies are refusing to fill prescriptions because of abortion bans). It’s worth noting, however, that none of these states have issued bans against the use of tear gas/pepper spray by police, despite the known abortifacient risk (Tear Gas Is an Abortifacient. Why Won't the Anti-Abortion Movement Oppose It? | The Nation and
Police Who Tear-Gas Abortion-Rights Protesters Could Induce Abortion - Scientific American). The Geneva Convention bans the use of chemical weapons in warfare, but this doesn’t extend to Nations using these weapons against their own people. Tear gas is too terrible for war, but just fine for police use even if it induces abortion.
It’s important to acknowledge this, because it’s a clear example about how this is not about “protecting babies” at all. If the unborn are so precious, they should be protected from state violence, right? But they’re not. The ban on abortion isn’t about protecting the unborn, it’s about controlling the bodies of others (in this case child-bearing persons in particular). We all know it’s not about saving babies, because if it was they would be doing something to help them once they’re born, but they’re not.
Dobbs has gotten a lot of attention since its decision, so it won’t be addressed too much here. It is an incredibly important decision that affects a huge number of people, especially BIPOC individuals. It is doing huge work to enforce Christofacism by legislating control over people’s bodies based on purely religious belief. It’s further an agent of white supremacy from its racist origins (The Long History of the Anti-Abortion Movement’s Links to White Supremacists | The Nation) to the disproportionate harm it causes non-white people (Why abortion restrictions disproportionately impact people of color - ABC News). Dobbs also, unlike some of the other very important decisions, affects white people, and so it has gotten much attention and action and resources. There are still some areas of question/confusion surrounding the ban of abortion that I want to clarify. First, when Dobbs first came out, there was some internet chatter suggesting that reservations should be opened/converted to abortion clinics as they fall outside state jurisidiction. Now, Indiginenous people have a long and complicated history of reproductive healthcare, including a history of forced sterilization at the hands of the government. Non-Natives are best advised not to make any sort of suggestions about reproductive care on Indigenous land if they are not fully versed in this dark history (and even then, don’t). Many white folks no doubt gave zero thought about Indigenous health (particularly reproductive health) until they needed to seek refuge from their own state and then saw us as a resource for their salvation. Furthermore, a decision handed down a few days later served to strip tribes of their rightful sovereignty. This case, Oklahoma v. Castro-Huerta, got far less attention than Dobbs, though it is in many ways just as devastating.
The second issue to briefly address is the common misconception that these abortion bans violate a human right/forced pregrancy is a human rights violation. There is a specific (narrow) sense in which forced pregnancy is a human rights violation according to the Rome Statute of the International Criminal Court. Forced pregnancy in this sense is specified as being forcibly impregnated and confined. Abortion bans don’t constitute forced pregnancy according to that definition because….
Turning now to the decision that devastated Indian Country: Oklahoma v. Castro-Huerta. Castro-Huerta was a non-Native mban who committed horrible crimes on Native land, which prevented state officials from being able to prosecute him. OK v. Castro-Huerta gave states the right to prosecute non-Natives for crimes on Native land. At first glance, this should seem like a good thing, that it makes it easier to punish criminals and then justice is served. But really, what it does is undermine sovereignty (The Supreme Court's Oklahoma v. Castro-Huerta decision gave states more power over tribal land). This ruling has far-reaching consequences concerning the rights of sovereign tribes to self-govern. Many tribes have worked hard to establish their own culturally informed systems of restorative justice. This decision allows states to override this autonomy. It is again another instance of White-supremacist Christofacism exerting its control over those it seeks to dominate.
OK. v. Castro-Huerta is problematic in its own right, but it is an ominous indication for what is to come in Haaland v. Brackeen, set to be heard this fall. If things go as they are indicating, Haaland v. Brackeen will overturn ICWA (the Indian Child Welfare Act About ICWA and The Native adoption case that could dismantle the Indian Child Welfare Act, explained - Vox). In 1978, ICWA protections were put into place to prevent Native children from being taken from their families and adopted out to white people. In Brackeen, a white couple had fostered and tried to adopt a Native boy, but a Native family was found who were able to take him in and he was placed with them. The Brackeens filed a federal lawsuit. Since then, the Brackeens have been formally allowed to adopt the boy, and fought to obtain custody of his sister, whose Navajo family wanted to take her in. The Brackeens appealed to their ample resources as justification for taking in the child. This appeal to wealth as the determining factor of fitness, as opposed to cultural and traditional ties, is part of the reason we need ICWA in the first place. They force Native people into poverty, then use that poverty as justification to take our children.
“He had already been taken from his first home, and now it would happen again? And the only explanation is that we don’t have the right color of skin? How do we explain that to our own children? We’d done nothing but sign up to do good,” Jennifer Brackeen told the Times. (Vox)
This quote is telling. To think that this has anything to do with skin color is asinine to an offense degree. For someone who is taking Native babies to think that Indigeneity is a matter of skin color is abhorrent. Our culture is not a skin color. Our political status as Indigenous people is not a matter of skin color. Skin color has nothing to do with anything and to bring it into discussion is just evidence that people who have no understanding of Indigeneity have no business raising Native children. But if ICWA is overturned, this is the reality we are facing. Native children will be taken from their communities and be given to White Christians to allow them to erase their inherent identity and cultural heritages.
One of the more serious concerns regarding the likely overturning of ICWA is that it would amount to an undermining of tribal sovereignty. However, with the ruling in Castro-Huerta, that has already happened. But one large, very problematic issue is being brought to light by this case–. If ICWA is overturned on the basis that it violates the Equal Protection Clause, it would seem to imply that any legislation with the purpose of rectifying past injustices committed by white supremacist policies could be considered unconstitutional. Banning all race-based legislation under the guise of equal protection means that we can legally rectify race-based harms, and we can’t enact protections against on-going racial violence.
The last case I will address in this discussion of how SCOTUS is supporting White-Christofacist Nationalism is West Virginia v. EPA. With this ruling, SCOTUS severely limited the power of the Environmental Protection Agency (and presumably any other federal agency) to enact policy. In the checks and balances of government, the legislative branch (Congress) makes the laws. However, there are also federal agencies that enact regulations. This power is extended to these agencies by Congress because they possess the necessary subject-matter expertise to create the highly specific regulations needed. In the case against the EPA, a provision of the Clean Air Act that required “best system of emission reduction” is vague in scope and meaning. The ruling in West Virginia v. EPA claimed that the states never intended to give federal agencies the authority to make such determinations. On the surface, it appears to be a victory for the states in returning authority to Congress. However, the invocation of the “major questions doctrine”, which requires Congress to authorize any large-scale federal policy that could affect the economy, just gives the power to the Court to determine what federal policy they consider to be overreaching. Essentially, the Court gave itself the power to curtail federal agencies at their discretion. (See: West Virginia v. EPA Is the Supreme Court’s Latest Power Grab - The Atlantic) This is a massive power to be wielded by a small number of unelected individuals. The Supreme Court has shown itself to be invested in upholding Christian values. These values do not include respect for the land, air, and water and so majority of SCOTUS does not care about the earth our future generations will inherit.
The overwhelming damage that was done by these rulings will have a devastating effect on this country in many ways. It can feel like there is nothing to do, or that the things to do (donate to local abortion funds) have already been done. One further suggestion for action is this: write to your representative and urge them to introduce legislation to ban the use of tear gas by police. Any principled anti-choice representative should be willing to support any legislation banning a known abortifacient. Any reasonable human should be willing to support legislation banning the use of weaponry too cruel for warfare.
One additional suggestion would be to write your representative and tell them to enact ICWA protections on the state level. Let them know that removing Indigenous children from their people is something you won’t stand for. As part of our ongoing Letter Writing Campaign, there will be a ICWA-specific letter that will go into more detail.
Please sign and share our ICWA protection petition: