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Why Gibson Dunn’s ‘Best Interest of the Child’ Has a Dark Side

Nov. 11, 2022, 11:00 AM

Gibson Dunn & Crutcher partner Matthew McGill wants you to know it’s all about the children.

“They are human beings,” McGill told US Supreme Court justices this week during arguments in the case of Brackeen v. Haaland. “They have liberty interests that tribes cannot override simply by unilaterally enrolling them.”

Specifically, McGill argued it’s high time to overturn the Indian Child Welfare Act, landmark legislation enacted in 1978 that gives preference to tribal members in custody matters involving American Indian children.

Not only does the law thwart the “best interest of the child” standard in custody matters, McGill told the court, but it discriminates against prospective adoptive parents who are not American Indians—in this case, Chad and Jennifer Brackeen, a well-to-do White, evangelical couple in Texas.

Joining to overturn the ICWA are the states of Texas, Louisiana, and Indiana.

I have no quarrels with the spirit of McGill’s argument—that kids shouldn’t be political pawns in custody disputes. But dig deeper into Gibson Dunn’s pro bono representation in this case, and it’s apparent that determining the fate of the 4-year-old Navajo child at the center of the dispute is beside the point.

“McGill’s effort is part of a large, well-orchestrated attempt to undermine tribal sovereignty and tribal nationhood,” Kimberly Cluff, legal director of the California Tribal Families Coalition, told me. “It is the biggest and most strategic attack on tribes this century.”

Defeating tribal sovereignty would lead to the eradication of tribal rights over valuable resources like oil and gaming operations, she explained, noting Gibson Dunn’s clients in the energy and the gambling sectors. “They’re attacking ICWA because it’s low-hanging fruit.”

While it’s laudable for a prestigious law firm to provide pro bono services for the least fortunate among us, it’s quite another when it uses its muscle to go after a group that’s been systematically brutalized by the US government throughout this nation’s history.

Did the smart lawyers at Gibson Dunn not weigh the potential fallout?

‘Their Interests Align’

McGill rejected talk of a hidden agenda. When I asked him last year about the ripple effect of defeating the ICWA, he replied, “This case is about the well-being of that [then] 3-year-old little girl, not abstract notions of tribal sovereignty.”

He also stressed what the case means for the child, identified as “YRJ,” and the Brackeens: “For YRJ, the Brackeens are her family, and they are everything to her. Tearing her away from her family most certainly will traumatize her, maybe permanently.”

McGill’s words might tug at our heartstrings but he can’t dodge the pile of evidence that undermining American Indian rights appears to be part of a business strategy.

In January, McGill, along with Gibson Dunn partners Ted Olson and Lochlan Shelfer, filed suit on behalf of Maverick Gaming, an entertainment and gambling company, challenging the Indian Gaming Regulatory Act.

Among other arguments, the firm waged an Equal Protection challenge, alleging that the Act gives tribes a “race-based preference” in the betting arena. Though the federal government regards American Indians as a political class in these matters, conservatives contend that they’re actually treated as a racial group.

Mere coincidence that the Maverick argument essentially tracks what McGill made in Brackeen? The only difference is that Maverick is a paying client while the Brackeens are getting a free ride. It seems the firm is attacking on multiple fronts and seeing what might stick.

Gibson Dunn has a long history of attempting to destroy American Indian rights, Cluff said.

“As far back as 1998, Ted Olson was challenging tribal gaming,” she said, alluding to the star litigator’s war against California’s Proposition 5, which gave American Indians the right to run certain gambling operations.

“This is a longstanding effort of the firm,” Cluff said. “If you look at Gibson Dunn’s clients, you see how their interests align,” noting that the firm also does significant work for oil companies Chevron and Shell, and claiming that they also stand to benefit if Indian sovereignty is knocked out.

McGill and Gibson Dunn’s chair, Barbara Becker, did not respond to a request for comment for this column.

‘The Glue is Ideology’

But it is perhaps an oversimplication to say that McGill and his mentor Olson are driven purely by money in these matters. Stalwarts of the Federalist Society, both are conservative ideologues, who gave us the Mother of conservative rulings: Citizens United v. Federal Election Commission, the 2010 case that accorded personhood to corporations for the purpose of political contributions.

“Their motivation is economics,” Cluff said. “But the glue is ideology.”

George Forman, a lawyer who’s represented tribes for over 40 years, used similar language to describe the firm: “The business is the ideology that’s wrapped in anti-federalism,” he told me.

Though Gibson Dunn has its share of uber-conservative lawyers—particularly in Washington, D.C. (Eugene Scalia and Miguel Estrada, in addition to Olson and McGill) and Texas (Allyson Ho, wife of Judge James Ho, who famously said he will no longer hire clerks from Yale Law School)—the firm has plenty of liberals, including its chair Becker, who’s been a longtime advocate for diversity. This year, the firm took the extraordinary step of elevating its head of diversity to partnership.

So it’s puzzling—and sad—that a firm that seems to value diversity, equity, and inclusion has assumed the mantle of being the butcher of American Indian rights.

Did McGill pull the wool over people’s eyes by selling the Brackeen matter as a mere adoption case? Does it reflect the clout he and Olson enjoy at Gibson Dunn that they can take any pro bono case they want? Or is it because American Indians have so little pull in society at large that no one noticed?

It’s hard to imagine that the firm would offer free legal services to an individual or group that threatens the rights of Black people, Asian Americans, or Hispanics.

The firm has been pilloried by American Indian communities, social media, and law students about its involvement in this mess—much of it well-deserved, I’m sorry to say.

Right now, bets are on that the Supreme Court, with its super-conservative majority, will likely overrule the ICWA. If there’s ever an optimal moment to bang the reverse racism drum, it’s probably now.

But if Gibson Dunn prevails in the Brackeen case, is that something it’d want to brag about?

To contact the reporter on this story: Vivia Chen in New York at vchen@bloombergindustry.com
Twitter: @ViviaChen
To contact the editor responsible for this story: Gregory Henderson at ghenderson@bloombergindustry.com