A Looming Court Case Threatens Native Sovereignty

ICWA establishes minimum standards for a Native child to be removed from their home and empowers tribes to be more involved in adoption and custody procedures for kids enrolled or eligible to enroll in tribal nations. The law gives tribal courts exclusive jurisdiction over members who live on tribal land, in the hopes of keeping families together, and creates a process whereby they’re noticed and involved in cases outside of these boundaries.

For years, people and organizations hostile to ICWA have tried to erode the legislation through the court system. Should ICWA fall, it’s not only adoption and foster cases that will be gravely impacted; the basic foundations of tribal sovereignty could be unwound. Observers in Indian Country have long believed that attacks on the legislation have broader aims in mind than the wellbeing of children, and many anti-ICWA proponents are also perceived as gunning for access to natural resources, mineral rights and more.

Calling into question the authority of Congress to deal with tribal nations as distinct sovereigns would have ​“major reverberations throughout the field of Indian law,” said Riyaz Kanji, a longtime attorney for tribes and principal advisor to the Tribal Supreme Court Project.

Kanji believes that dismantling the foundational underpinning of tribal sovereignty would likely be a step too far in overturning precedent for even a Supreme Court as radical as this one. But the nature of questions from the Supreme Court Justices during oral arguments in November 2022 left some legal experts thinking Brackeen might nonetheless constitute the most serious threat to the longstanding legislation. With a conservative court perhaps more poised to overturn ICWA, questions remain about how the scope of a potential ruling could impact Indian Country, too.

The effort to undermine ICWA is currently in the spotlight, but attacks on tribal sovereignty regularly take shape in local and state jurisdictions, often focused on access to natural resources. Tensions frequently start as local dustups when tribes exercise their treaty rights in a way that limits access to the resource, typically an economically beneficial one, and non-Native people say their stewardship of that resource would benefit the Indigenous community.

Examples of natural resources acting as a proxy for tribal sovereignty in recent decades include the 1999 Minnesota v. Mille Lacs Band Supreme Court case, which challenged the treaty rights of the Chippewa Tribe to hunt, fish and gather; an ongoing debate in Montana about the Confederated Salish & Kootenai Tribes Water Compact, recently ratified into law but likely to be tested; a 2016 victory by the Lummi Nation in fighting off a coal depot in their waters in Washington state; and, of course, the standoff at the Dakota Access Pipeline that gained international attention.

Terry Cross, an enrolled member of the Seneca Nation and the founding executive director of the National Indian Child Welfare Association, traces these attacks on sovereignty back to the Trail of Tears, the deadly westward displacement of five tribes between 1830 and 1850 initiated by then-President Andrew Jackson.

“The argument made at the time was that the [tribes] were being overwhelmed by European settlers, and they would be annihilated if the government didn’t take them into custody and move them,” Cross recounted. ​“Really, those [tribes] controlled the waterways…and Andrew Jackson said, ​‘We want it, and we are going to take it.’”

Tribal sovereignty predates ​“the coming of the colonial powers,” Cross added. ​“It’s not a right that’s bestowed on us. It’s a right we’ve had since time immemorial.”

From 1778 to 1871, the United States federal government signed 370 treaties with tribal nations. Many were used as tools to forcibly remove Indigenous people from their native lands and relocate them to reservations. In exchange for the land they had lived on for generations, tribes were offered many now-broken promises from the government: of peace, the provision of health and education, hunting and fishing rights and protection against enemies.

According to the Constitution, treaties can only be enacted between two sovereign nations. That status and the right of tribes to self-govern was affirmed in the 1832 Worcester v. Georgia Supreme Court case. It’s also grounded in the Constitution through not one, but two clauses, and was reiterated yet again in the 1990s by a Department of Justice memorandum that tribal nations have the unique status of ​“domestic dependent nations.”

The Nevada Center for Civic Engagement, a nonprofit focused on civic education, describes the relationship like this: ​“At the simplest level, tribal members are dual citizens of two separate, but deeply entwined nations.”

But the ink had barely dried on many of these treaties before the promises started to be broken.

As soon as 1887, the General Allotment Act (also known as the Dawes Act) allowed the federal government to break up tribal lands into agricultural plots to isolate Indigenous people from their traditional ways of life and force them to take up farming. Federally-run boarding schools removed Native children from their homes to force them to abandon Indigenous cultures in the name of assimilation, killing hundreds and leaving many thousands traumatized by abuse. The Termination Era of the 1950s and 1960s marked a time when Congress sought to dissolve the relationship between tribal nations and the federal government altogether, so that it would no longer be encumbered by the responsibilities it owed them. Lawmakers passed legislation ending federal recognition of tribes, giving states jurisdictional rights over reservation lands and creating a relocation program to move people off tribal lands and into cities.

When tribes are forced to defend the rights, land and resources guaranteed to them through agreements with the federal government, they are unable to focus on actual governance, according to Kanji.

And if tribal nations must endure a generations-long offensive against their basic rights to exist on the land allotted to them, the preservation of Native culture — not to mention the basic existence of Indigenous communities — is in grave danger.

A report from the Montana Human Rights Network calls on anti-Indigenous groups to be categorized as hate groups. It asserts these groups oppose the ​“sovereignty, government, and efforts across the board” of tribes and instead ​“seek to limit, if not outright terminate” Indigenous culture through ​“what they euphemistically call ​‘assimilation.’”

A small but active network of people and organizations have been championing cases like Brackeen v. Haaland for years as a means to dismantle ICWA — and tribal sovereignty more broadly. As the MHRN report suggests, these groups co-opt rhetoric from other political movements such as property rights and civil rights to mask their true agendas, and they’ll often frame Indigenous people as dangerous to non-tribal community members.

It’s an argument crystallized by Elizabeth Morris, the co-founder and chair of the Christian Alliance for Indian Child Welfare, an explicitly anti-ICWA organization with a long history of trying to overturn the legislation in the name of protecting kids and which filed an amicus brief in Brackeen.

Brackeen v. Haaland made its way through multiple appeals to reach the Supreme Court at the behest of a non-Native couple from Texas, Chad and Jennifer Brackeen, who provided a foster home for a young boy whose parents are members of the Navajo and Cherokee Nations. They sought to adopt the child in 2017, but were told the Navajo Nation had identified placement within the tribe, as is prioritized under ICWA. When the Navajo family decided not to adopt the boy, the Brackeens gained permanent legal custody of him. But they faced ICWA proceedings again a year later when they tried to also adopt their son’s half-sister and were told a great-aunt was prepared to adopt her instead. While that custody arrangement is still being decided in court, the Brackeens joined a lawsuit challenging the constitutionality of ICWA.

ICWA only applies to children with the political status of enrollment in a tribal nation, the same way U.S. citizenship is a political status, not a racial classification. It does not automatically apply to any person who simply identifies as Native or has Native ancestry. Brackeen claims the law violates the Constitution because it racially discriminates against non-Indigenous people — something that could only be true if tribal nations are not considered sovereign political entities. In this way, overturning ICWA would likely require significantly undercutting tribal sovereignty overall and unwinding the foundational relationship between tribal nations and the federal government.

Anti-ICWA advocates like Morris dismiss the seriousness of these implications. ​“People are so bent on protecting tribal sovereignty at any cost, even the cost of children’s lives,” Morris told In These Times, adding that her organization’s amicus brief includes a number of stories from people who grew up on reservations and experienced abuse or trauma. ​“I don’t believe the children should be sacrificed for tribal sovereignty. And that’s just the bottom line.”

To Terry Cross, Morris’ claims are ​“a perverse argument,” and a poor attempt by anti-Indigenous groups to disguise sinister motivations by wrapping them in rhetoric about children’s best interests. ​“As long as non-Natives feel they have the right to ​‘rescue’ our children when they don’t even understand the culture, nor do they understand the strengths of tribal communities, they are doing damage.”

Though these sorts of attacks aren’t new, said MHRN’s McAdam, today’s polarized political environment is encouraging the anti-Indigenous movement to be more blatant in their attacks, driven by what’s perceived as a more favorable legal environment in courts stacked with conservative judges.

“It’s not that the people pushing those things have come up with anything new, but it does feel like we’re seeing more of it in mainstream circles now,” McAdam said. ​“I think there’s a feeling this might be a time where they can potentially capitalize in the courts in ways that they may not have been able to in the past.”

If ICWA stands in front of this Supreme Court, there’s little reason to believe these anti-Indigenous groups will stop their work to undermine tribal sovereignty and the sheer existence of tribal nations.

“I think we can continue to expect those assaults, and we just have to be diligent in our defense of who we are as Indigenous people,” Cross said. ​“I wish we could undo the damage of the past. Sometimes people say, ​‘Why don’t you get over it?,’” referring to the weight of historical trauma, violence, stolen children and stolen land. ​“My answer to that is, ​‘I’ll get over it when you stop.’”