Credit:. U.S. Department of The Interior: https://www.bia.gov/as-ia/opa/national-native-american-heritage-month-2021
For the past twenty-eight years, November has been proclaimed National Native American Heritage Month. Although the month provides a meaningful opportunity to celebrate the unique histories and cultures of our country’s 574 federally recognized tribes, it also necessitates a solemn acknowledgment of the battles indigenous people in our country still face. Although there are a multitude of pressing issues in Indian Country that I could have written about, there seems to be nothing as urgent and dire as the real possibility that the Supreme Court is about to dismantle many of the sovereign rights and privileges of Tribal nations.
Last week, the Supreme Court heard oral arguments in the case of Haaland v. Brackeen. There, the state of Texas and seven individuals sought to overturn the Indian Child Welfare Act (“ICWA”). Among other things, ICWA requires state-court child custody proceedings to apply a preference, in the absence of good cause to the contrary, which prioritizes the placement of Native children with other Native families.
Credit:; AP Photo/Morgan Lee
Congress passed ICWA in 1978 largely because studies showed that at one point in the 1970s, roughly one in three indigenous children had been taken from their homes and adopted out to other families—the majority of which were non-Native. Worse yet, many of these children were taken by force.
Sadly, this mass adoption of Native children was only one piece of a decades-long, concerted effort to remove children from their Native communities and relocate them to white families and white communities. For over a century, the US government funded hundreds of boarding schools, usually operated by churches, that aimed to remove Native children from their communities and assimilate them into white American culture. These schools inflicted continual physical, spiritual, and mental abuse on the children—children were often forced to cut their braids and were physically punished for speaking their native language, for example.
Top: A group of Chiricahua Apache students on their first day at Carlisle Indian School in Carlisle, PA.
Bottom: The same students four months later. John N. Choate/Hulton Archive/Getty Images
As the boarding school era dwindled in the mid-to-late 20th century, the federal government instituted the Indian Adoption Project, which sought to promote adoption of Native children by white adoptive families who were usually located in far-away states. The Project also worked directly with other federal, private, and state child welfare officials to change state child welfare laws and facilitate the adoption of an even greater number of Native children. Children could be taken from their families for any reason—adult adoptees told Indian Country Today that they had been adopted out, for example, because of minor hospitalizations, because their parents hired a babysitter, because their father was a traditional medicine man, and for no other reason than the adoptee’s father passed away.
ICWA was Congress’s attempt to rectify this phenomenon. But as you might imagine, ICWA has been subject to countless court battles over its constitutionality, most of which are funded by right-wing, evangelical groups such as the Goldwater Institute. Many of these challenges have argued—with minor success—that ICWA violates the equal protection clause because it mandates different treatment for adoptive children based on their race; but the Supreme Court has never taken up this issue – until now.
On November 9, 2022, the Supreme Court heard oral arguments in the most recent challenge, in Haaland v. Brackeen. The case is a consolidation of three separate ICWA challenges, each filed by non-Native foster parents who wanted to adopt Native children; notably, two of the three sets of parents were able to successfully adopt their Native foster children long before the case reached the Supreme Court. The parents argue that ICWA violates the equal-protection clause, and Texas generally argues that ICWA unconstitutionally forces states to carry out a federal mandate.
The federal government and the tribes, on the other hand, argue that the Court has long held that tribal affiliation is a political relationship. Indeed, in Morton v. Mancari, 417 U.S. 535 (1974), the Court upheld a statute which applied a hiring preference for Interior Department jobs which dealt directly with tribes. The Court held that, because an individual’s tribal citizenship is a political affiliation, the Court need to only ask whether the statute’s distinction between non-Indians and Indians furthers some legitimate congressional purpose and is “tied rationally to the fulfillment of Congress’s unique obligation toward Indians,” as opposed to the strict-scrutiny analysis required for race-base classifications.
By way of example, I am a citizen of the Cherokee Nation because I was able to trace my ancestors back to the Dawes Rolls, which was a federal census compiled from 1898-1906 for the purpose of identifying tribal members. I have a tribal ID card, which is sufficient to get me on an airplane, fill out an I-9 at a new job, and vote in my tribe’s elections, among other things. My citizenship is the tribe’s acknowledgment that I am a member of the community. In comparison, someone might identify as “white” primarily because of their physical characteristics and an understanding of the countries from which their ancestors came. But just like the US government gets to set its own rules for issuing citizenship, so do tribes – and it is that affiliation (or the possibility that such affiliation might exist) which triggers the provisions of ICWA.
If Texas and the adoptive parents succeed at the Supreme Court, many are concerned that the opinion will lay the groundwork to overturn almost every other federal statute which upholds tribal sovereignty. Many of the federal statutes that protect the rights of Native people stand solely on the assumption that they can survive a rational-basis equal-protection analysis. If ICWA falls, the same fate could be true of statutes which, for example, provide tribal health and education benefits, acknowledge the criminal jurisdiction of tribes, and protect hunting, fishing, oil, mineral, and gaming rights.*
The boarding school and Indian Adoption Project were long-standing attempts to eradicate tribes by focusing on the removal and assimilation of their children. The dismantling of ICWA could be the start of a widespread attack on Native sovereignty as a whole, again, by focusing on Native children. I am hopeful that history dose not repeat itself.
*A citation to this article, however, cannot be made without pointing out that the New York Times inaccurately suggests that this case is about race—further indicating my broader point about how these nuances of federal Indian law can be lost on even the most educated, well researched, and good intentioned of us.
Jessica Allison is a litigation associate at Brownstein Hyatt Farber Schreck, LLP. Jessica focuses her practice on construction, specifically representing property owners, general contractors and developers on a variety of matters from project inception to close-out and final payment. Jessica is a citizen of the Cherokee Nation.