Jonathan P. Baird

With Roe v Wade being overturned by the Supreme Court, it would be easy to think the centerpiece of the conservative legal agenda has been realized and that what happens next will be less consequential. Unfortunately, nothing could be further from the truth. The Court, with its conservative super-majority, is just getting started reversing precedent now that it has the numbers.

One of the most important cases getting decided this term is Haaland v Brackeen, a challenge to the Indian Child Welfare Act, also known as ICWA. That law was enacted in 1978 to halt the forced removal of Native children from their families.

The story of Indian child removal has gotten some attention in the last couple years because of the mass graves of Indian children found at boarding schools in Canada and the United States. As with so much of Native American history, much has been obscured.

Before ICWA, 25 to 35 per cent of Native American and Native Alaskan children were removed from their homes and placed in non-Native homes or in residential boarding schools. This taking was an effort to disintegrate Native identity and to destroy tribal nations. There is no future without children and the scale of the taking was dramatic.

The aim of ICWA was to halt this cultural genocide. In the current litigation, ICWA is supported by 497 federally recognized tribes and 23 states as a law that is foundational to tribal rights and the preservation of indigenous families.

ICWA grants Native children the right to foster care placements that favor Native communities. If a state court determines a Native child must be removed from their home, Native family or tribal members must be given priority placement. ICWA only applies in child welfare and adoption proceedings.

Sarah Kastelic, the Executive Director of the National Indian Child Welfare Association, has broadly presented what she calls the recipe for colonization “consistently followed by colonizers to colonize Indigenous people”. Kastelic says there are five ingredients:

“ 1. Take the land.
2. Control the natural resources, especially water.
3. Usurp, replace indigenous governance to delegitimize Indigenous thought.
4. Undermine Native worldview, values, traditions, beliefs and
5. Sever Native children from their source of identity, from their culture, from their sense of belonging, from that sense of connectedness to something.”

The plaintiffs in Brackeen claim ICWA is unconstitutional on its face. The plaintiffs are non-Indian families who wish to adopt American Indian children (as well as the state of Texas). They argue that ICWA discriminates on the basis of race by treating Native children differently than non-Native children. Essentially they argue reverse discrimination, citing violation of the equal protection clause of the Fourteenth Amendment.

They also argue ICWA provisions exceed the plenary power granted to Congress to regulate tribal relations with states and the national government.

What is shocking about the Plaintiffs’ case is their erasure of the history of racism faced by Native Americans and Native tribes. They brush over the long history of Indian child removal and minimize that experience. Even with ICWA, Native children are still removed at a rate two to three times that of white children. It seems like the plaintiffs want to pretend racism is over.

The plaintiffs’ argument that they are victims of reverse discrimination is particularly insidious. Many Americans think of American Indians as a racial group – not a political one. The distinction is critical.

Under federal Indian law, American Indian tribes are nations. During the first 90 plus years of its existence, the United States entered into and ratified more than 370 treaties with indigenous people who lived in what became the lower 48 states. Each treaty ratification represented a formal recognition by the federal government that the other parties to the treaties were fully sovereign nations. This is true under customary international law and by provision of the U.S. Constitution.

The United States defaulted on its responsibilities under every single treaty obligation with the Native tribes. In fact, there is even a 1903 Supreme Court case, Lone Wolf v Hitchcock that holds Congress may unilaterally break its treaty obligations to Indians under its plenary power. I would argue that where Native tribes are concerned, the law has long been broken although controversies in the legal forum must continue to be contested.

ICWA does not apply to all people of Native descent. It only applies to children who are “a member of an Indian tribe” or who are “eligible for membership in an Indian tribe and are the biological child of a member of an Indian tribe”. ICWA is not a race-based law.

Many Indian tribes remain extremely worried about how the Supreme Court will resolve Brakeen. Given the conservative super-majority and their demonstrated record of reversing precedent, tribal sovereignty and nationhood are on the line.

There is a history of the federal government using a variety of methods to end its nation-to-nation relationship with tribes. The 1950’s is referred to as a “termination era” since there was an aggressive effort then to break up tribal nations. Among other things, the federal government terminated recognition of 109 tribes, it removed 1.3 million acres of land from trust status and it attacked tribal criminal jurisdiction over crimes involving non-natives on tribal lands.

In 1952, the government’s Urban Indian Relocation program encouraged Native people to leave reservations with the lure of good jobs, housing and education. These promises never materialized.

In her brilliant podcast, This Land, Rebecca Nagle, a citizen of Cherokee Nation, dives deep into the Haaland v Brakeen case. She shows how the Brakeen case raises challenges that go far beyond child welfare. Right wing lawyers have targeted tribal sovereignty and conservative dark money, particularly the Bradley Foundation, has financed the litigation. More is going on in this case than meets the eye.

Nagle describes what she calls a combination of greed and charity. The law firm Gibson Dunn who represent the Brakeen plaintiffs also represent oil and gas industries and two of the largest casinos in the world. In a January 2022 federal court filing on behalf of a casino, Gibson Dunn argue that tribal gaming is unconstitutional using the same equal protection argument they use in Brakeen. There are no coincidences here.

While no one knows how the Supreme Court will rule in Brakeen, it is hard to be optimistic. Justice Neil Gorsuch has had a history of siding with Native Americans but that only makes the likely line-up 5-4 with the majority still siding with the conservatives.

At the oral argument held earlier this month, some of the conservative justices seemed clueless about Native sovereignty and how ICWA actually works. The three liberal justices and Justice Gorsuch expressed skepticism toward the plaintiffs’ arguments.

ICWA has now faced more challenges than the Affordable Care Act. If the Court finds ICWA unconstitutional, the entire edifice of American Indian law could potentially tumble. All kinds of statutes like those impacting health care, land, water and gaming rights could be adversely affected. A decision by the Supreme Court is expected in June.