Update June 15, 2023, at 10:50 a.m. PT: In a surprise ruling, the Supreme Court upheld the Indian Child Welfare Act (ICWA) in a 7-2 vote in the case of Haaland v. Brackeen. The Court rejected the challenges brought against ICWA by Chad and Jennifer Brackeen and two other other non-Native prospective adoptive couples—”some on the merits and others for lack of standing,” wrote Justice Amy Coney Barrett in her majority opinion. The ruling indicated the Brackeens did not not suffer a concrete harm and could not sue. Justice Samuel Alito and Justice Clarence Thomas dissented.
Native American tribal leaders and advocates see the ruling as a win and say the law safeguards Native children and tribal communities.
“We hope this decision will lay to rest the political attacks aimed at diminishing tribal sovereignty and creating instability throughout Indian law that have persisted for too long,” said a statement from leaders of the Cherokee Nation, Morongo Band of Mission Indians, Oneida Nation and Quinault Indian Nation.
The rest of this article originally appeared in the Daily Hampshire Gazette.
On Nov. 9, the U.S. Supreme Court heard oral arguments in a case, Haaland v. Brackeen, challenging the constitutionality of the 1978 Indian Child Welfare Act (ICWA). The act gives a preference for Native American people to foster and adopt Native American children. The lead plaintiffs are a well-to-do white, evangelical Texan couple, Chad and Jennifer Brackeen, who are seeking to adopt a Navaho girl against the wishes of her relatives, who want to adopt her themselves. Among other arguments, the Brackeens allege reverse racism—that the law discriminates against them based on their race in violation of the equality guarantees of the U.S. Constitution.
This case is just the most recent chapter in a long history of white people taking Native children from their parents, tribes and cultures.
Beginning in the late 19th century, the U.S. government set up an extensive system of boarding schools for Native children designed to assimilate them by eliminating traditional Native American ways of life and replacing them with mainstream American culture. Many were run by Christian missionaries.
The federal government forced Native families to send their children to these schools, often far from home and for many years. The white people running these schools forbid the children from speaking their Native languages, gave them English names, forced them to cut their hair and give up their traditional clothes, and coercively replaced their own traditional religious practices with Christianity. The schools were run like military schools, where children had to wear uniforms, march in formations, and adhere to strict rules or face harsh discipline.
The boarding schools taught Native children that their cultures were inferior, with some teachers ridiculing and making fun of the students’ traditions. These lessons taught the children to be ashamed of being Native American. A recent Interior Department report found “rampant physical, sexual, and emotional abuse; disease; malnourishment; overcrowding; and lack of health care in [the] boarding schools.”
In the 1970s, in response to continuing high rates of public and private agencies removing Native American and Alaska Native children from their homes, Congress passed ICWA. The law requires states to notify tribes before placing a Native American child for adoption and to prioritize placement of children with their extended family, members of their tribe, or other Native American families.
ICWA advocates supported the law as a way to preserve Native American families, traditions and cultures and counter the widespread assumption that white parents are best for all children. Advocates also argued that the ICWA protects tribal sovereignty by granting tribal nations “exclusive jurisdiction” over their enrolled members and their lands—removing control from federal or state governments and private Christian organizations.
The lawsuit against the ICWA, brought by the Brackeens, the state of Texas, and three other white couples seeking to take Native children from tribes, could be just the first step to reduce tribal sovereignty and nationhood, creating opportunities for white people to take tribal land and resources as well as children.
It’s not surprising that the plaintiffs in the current case are represented for free by Gibson Dunn, a high-powered law firm that has represented oil and gas companies. One of their previous clients was Energy Transfer and Enbridge, a company responsible for the Dakota Access and Line 3 pipelines. This firm also has clients in the gambling sector. Eroding tribal sovereignty would threaten tribal rights over valuable resources such as mineral rights and gaming operations.
More generally, the Brackeen lawsuit is part of a series of lawsuits brought by conservative legal groups and lawyers to weaponize constitutional equality protections against people of color to the advantage of white people.
Last month in an affirmative action case, the Supreme Court appeared ready to eliminate the ability of schools to promote the admission of historically disadvantaged students, using reasoning similar to that used by the ICWA case plaintiffs. Republican members of the Court made comments indicating that they believed the 14th Amendment equal protection guarantee—adopted after the Civil War to protect Black people—does not allow any law designed to address longstanding and harmful race discrimination against people of color.
By advocating for “color blind” applications of the law, the Court would allow white people with greater access to resources and power to take money, land, and even children from communities of color—all in the name of equality. In the ICWA lawsuit, the equality guarantees adopted to protect Black people from the violence and discrimination of white people may now be used by white Christians to continue their long-standing practice of removing Native children from their tribes and cultures—and eradicating their religious practices.
The Brackeen case is a shameful display of the ongoing white supremacist settler colonial project in American society. All people must speak out against this centuries-old genocidal behavior against Native Americans that continues to this day.
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