On November 9, the eyes of Indian Country will once again turn its sights to the nation’s capital, where the Supreme Court will hear a challenge to the Indian Child Welfare Act (ICWA), a law passed in 1978 that enshrines the right of tribal governments to oversee the foster care of children. reception in cases involving Aboriginal people. children. The bill follows the damage done by the US boarding school system and extractive adoption practices, which have stripped indigenous youth of their culture and alienated them from their communities. Since the case first surfaced in a Texas district courthouse in 2018, conservative state leaders and think tanks have taken the case to the highest court. Brackeen vs. Haaland determine whether tribal nations retain the right to intervene in foster and adoption cases to ensure that Indigenous children are placed with Indigenous families.
For Susan Harness, a member of the Confederated Salish and Kootenai tribes and a survivor of the pre-ICWA adoption era, the immediate stakes of its cancellation are clear.
“It will open the floodgates to cultural annihilation,” said Harness, who wrote about his experience in Bitterroot: A Salish Memoir on Transracial Adoption. “The Indian Adoption Project, the social experiment that took place between 1958 and 1967 – the children flew off the reservation. … When that happens, you grow up hating yourself, because you are now raised in the colonizers’ belief system how awful you are, not just as a human being, but as a cultural element that should have died out long ago.”
By himself, Fern is a legal and political challenge to the health of Indigenous children, tribal nations and communities. But after the recent rush of judicial nominations by Donald Trump and Joe Biden, Fern also represents a test of what this young court means for the future of tribal sovereignty. In the worst-case scenario for Indian Country, the court could strike down the law on equal protection grounds, arguing that the ICWA is unconstitutional because indigenous citizens are a racial class, not a political one. This would, intentionally or unintentionally, undermine the nation-to-nation relationship the tribes have with the federal government.
HAD THE BRACKEEN CASE appeared on the court docket two years ago, on the heels of the now famous McGirt ruling — in which Trump-appointed Neil Gorsuch functionally served as the swing vote when the court ruled 5-4 that the Muscogee (Creek) Nation reservation had never been disbanded by Congress — this challenge from the ICWA, and all subsequent challenges to tribal sovereignty and Indigenous human rights, is perhaps not so worrisome.
“Then Judge Ginsburg died.”
So Elizabeth Hidalgo Reese, a citizen of Nambé Pueblo and a law professor specializing in Indian tribal, constitutional and federal law at Stanford University, put it over the phone in August. Support for tribal sovereignty does not follow partisan lines, and Ginsburg’s decisions have not always favored tribal sovereignty: In 2005, she wrote the majority opinion in Town of Sherrill v. Oneida Indian Nation of New York, believing that the Oneida Nation of New York could not establish sovereign rule over the stolen lands that the tribal government had redeemed. Similar examples abound among his contemporaries: Justice Clarence Thomas continues to argue that the Indian Appropriations Act of 1871 should effectively negate most claims of sovereignty by tribal nations, and Justice Stephen Breyer, in his opinion on Little girla previous challenge by ICWA, fueled the idea that some complicit tribes would act against a child’s best interests.
But with Ginsburg and the other justices in place, the behavior of the bench was predictable enough for nations and tribal organizations to make an informed decision about their legal strategies. Ginsburg’s passing has upended tribal nations’ reckoning about the court. Conservative Justice Amy Coney Barrett, appointed to replace Ginsburg in October 2020, gave the Conservatives on the bench a 6-3 advantage and lacks experience in Indigenous cases. Trump appointee Brett Kavanaugh is also green, and Biden appointee Ketanji Brown Jackson also has little tribal expertise — a pattern Reese said is caused in part by wide rejection. of the Federal Indian or Tribal Law program system.
“Every law student in this country tends to walk into a law class and be told there are two kinds of law in this country, there’s a state and there’s a federal law , period,” Reese said. “There are 574 tribal governments across this country that also make laws to govern their communities – (the law schools) act like we don’t exist, like we don’t control as much land as the state of California. It’s crazy.”
The ramifications of the court’s inexperience were on full display in June, when in Castro-Huerta v. Oklahoma, he broadly declared, by a vote of 5 to 4, that state law enforcement has the right to prosecute crimes committed by non-natives against native citizens on tribal lands. Kavanaugh penned the majority opinion, which Reese described as “a little sloppy but overconfident” in that it seemed oblivious to potential ripple effects. In a dissenting opinion, Gorsuch referred to the 1832 worcester ruling, writing, “Where our predecessors refused to participate in the unlawful seizure of power by one state at the expense of the Cherokee, today’s Court accedes to that of another.”
“There are 574 tribal governments across this country that also make laws to govern their communities – (the law schools) act like we don’t exist, like we don’t control as much land as the state of California. It’s crazy.”
The outstanding question before the Fern hearings is not whether the court will strike down ICWA — Reese said it almost certainly will — but how far the majority will go with its decision. If the court ruled on equal protection grounds, even if the judges limited their decision to ICWA, Reese said the natural question — one that an emboldened state attorney general or radical think tank would surely ask — is to know what other federal laws and policies might be challenged. for similar reasons. If the court strikes down the ICWA under Section 1 of the United States Constitution, which grants Congress ultimate governmental authority, and finds that Congress exceeded the broad power granted to it by the Commerce Clause Indian, it would also open the door to all federal laws regarding Indigenous peoples and nations to be defied.
“People who oppose our status as sovereign nations fully understand that one of the most effective ways to dismantle tribal governments is to go after our children,” said Allie Maldonado, Chief Justice of the Bands. from Odawa to Little Traverse Bay. . “They are our future. There is no other way for us to continue our governments, our language, our culture.
Another potential outcome, which Reese described as “the way to lose and not be devastating to the rest of Indian law”, is for the court to take up the case on requisition grounds – the 10th Amendment states that Congress cannot force state governments to achieve federal policy goals, within the framework of the Fern the challenge claims that the ICWA does. While Reese noted that judges are certainly more familiar with state rights cases, their collective record, Castro Huerta included, does not leave much wiggle room for ICWA.
On the other hand, the court can reject the Fern completely contest and argue that the ICWA is a constitutional law that is neither based on race nor a violation of state sovereignty. This would temporarily ward off vultures attacking tribal sovereignty and indigenous children – at least until the next court session.
“It’s a minefield,” concluded Reese – one of those nine non-
Indigenous judges will rush in a month.
Sarah Trent contributed reporting for this article.
Nick Martin is Associate Editor for HCN Bureau of Native Affairs and member of the Sappony Tribe of North Carolina. We welcome letters from readers. Email him at [email protected] or submit a letter to the editor. See our letters to editor policy.
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