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Most Firms Don't Advocate Cultural Genocide Pro Bono, But This Biglaw Firm Will!

Firm with deep anti-Native rights practice brings assault on Indian Child Welfare Act to SCOTUS free of charge.


(Photo by Al Drago/Getty Images)


No one labors under the illusion that every representation is going to be as morally pure as driven snow. But if you’re going to find yourself defending a client’s right to smother poor people for sport, the least you can do is get paid for it. Student debt doesn’t pay itself!


So when Gibson Dunn takes on a case challenging the Indian Child Welfare Act — a statute designed to remediate the horrific legacy of colonial assault upon native culture — you’re forgiven for assuming the firm is planning to make a mint. But you’d be wrong! Gibson Dunn is arguing this case pro bono.


The Indian Child Welfare Act of 1978 emerged as a response to over a century of cultural genocide initiatives on the part of the United States government aimed at eradicating Native peoples through family separation and assimilation efforts putting children through torturous boarding schools. ICWA puts a priority on placing Native children with their families or tribal members. The United Nations has even been asked to consider ICWA as a model for combatting cultural genocide. It’s basically the absolute least the United States could do for communities that are still, in fact, sovereign nations.


Three non-Native families are challenging this law at the Supreme Court after seeking custody of Native children. Gibson Dunn would certainly hope the public focuses on their specific clients, a decently off couple who provided foster care for a child in need and ultimately sought to adopt him. This set off a battle when the court ruled that the child be placed with a Navajo couple, but ultimately Gibson’s clients successfully adopted the child.


In fact, two of the families have adopted the children in question and in the case of the one family who didn’t, the child was placed with its grandmother which… seems to be the right result regardless of ICWA. You might wonder why Gibson’s case is still happening given these facts. The Navajo agree, writing in their brief:

Petitioners seek only prospective relief but have no actual or redressable injuries. They are also improperly attempting to bypass state court systems—the courts in which ICWA cases are actually litigated—and to concoct a sprawling, abstract federal facial challenge to the statute.

Because, like most Supreme Court cases, the matter isn’t really about the welfare of any individual litigant. The case is just an invitation to a general broadside against race-conscious legislation, asking the justices to deem ICWA an impermissible race-based preference to toss aside right next to affirmative action.


And that’s where the money behind these suits comes in. Per Mother Jones:

In all three lawsuits, non-Native foster parents wanted to adopt Native children; two of the three were ultimately successful in doing so. But the foster parents—along with the attorneys general for three states, with the backing of deep-pocketed right-wing groups like the Goldwater Institute and the Bradley Foundation—are suing the federal government and five tribes on the grounds that ICWA represents race-based discrimination and an overly intrusive federal government.

Remember when I recently praised the Goldwater Institute but cautioned that I’m generally not on their side? This is why. As Mother Jones notes, the right-wing groups throwing money toward this case have deep ties to fossil fuel companies — an industry that generally challenges tribal sovereignty at every juncture. Tribes can’t stop companies from poisoning the water if they don’t have rights!


Although, that doesn’t totally explain how Gibson Dunn got mixed up doing this case for free. To resolve that mystery, you need to know a little bit more about Gibson Dunn’s niche anti-Natives practice:

Then there’s Gibson Dunn, the law firm which has been representing the Brackeens pro bono. The firm has represented plaintiffs in several cases that take issue with laws specific to Native communities; Matthew McGill, the lawyer representing the Brackeens, also serves as counsel for a casino company in a federal case arguing that the Washington law limiting sports wagering to tribal entities is discriminatory. Gibson Dunn is known for representing Chevron in the decade-long lawsuit brought by indigenous communities in Ecuador, as well as the corporation behind the Dakota Access Pipeline.

Chevron and casino companies. Taking a financial loss litigating a family law case is a small investment toward advancing the interests of the rest of the firm’s clients in diminishing the last, tenuous pockets of tribal sovereignty. And that might be a business decision the firm likes, but make no mistake that it is a business decision. All the “everyone deserves a lawyer” rhetoric doesn’t play here — the firm is taking on a pro bono case for a family with seemingly no injuries as part of a broad attack on tribal rights.


So unless John Roberts decides to slink out of the case on standing, expect another 5-4 decision eroding Native rights.


At least Gorsuch’s dissent is going to be straight fire.


 

(c) Above the Law 2022


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