While most Americans were focused on the 2022 midterm election results, American Indians were searching for clues on how the U.S. Supreme Court might rule in a case that threatens tribes’ very existence. The case, known as Brackeen v. Haaland, was brought by a non-Indian couple (the Brackeens), who adopted two American Indian children. To the casual observer, this case probably looks like state-sanctioned racism in adoption proceedings. You see, the Brackeens claim the Indian Child Welfare Act (ICWA) is discriminatory in granting a preference to American Indians in custody, foster, and adoption cases involving American Indian children. I totally get why anyone unfamiliar with American Indian history and the convoluted legal system that governs tribes’ relationship with the U.S. would scream discrimination.
However, getting to the heart of this case requires some of us to reevaluate what we think we know about the U.S. and its relationship with American Indians. It’s unfortunate that most people know very little about American Indians. It is more troubling that what many do know is based on caricatures promoted by popular culture. Nevertheless, when looking at the Supreme Court’s ICWA case, it’s important to understand that most of today’s 574 federally recognized tribal governments existed long before the United States was even conceived. In their dealings with early European settlers, tribes governed themselves and their interactions with others as sovereign nations. In recognition of this fact, the U.S. continues to honor tribal sovereignty through the execution of numerous treaties, the U.S. Constitution, and centuries of federal Indian law. This is the political status that Indian Nations refer to when discussing their relationship with the U.S. government. This political status is also where tribal members derive their rights as citizens of their tribe, the U.S., and the state in which they live. As Justice Elena Kagan noted during oral arguments, “the first thing you need for self-government is, you know, a functioning polity. And Congress is very clear in this statute that it thinks that this statute is critical to the continuing existence of the tribe as a political entity. And that’s, in fact, one of the reasons it passes this statute, is the political entity is itself being threatened because of the way decisions on the placement of children are being made.”
Entering into the world of the child welfare system is, more often than not, a heartbreaking experience. The system is certainly worthy of greater scrutiny and care, but not in the way suggested by the Brackeens’ challenge of ICWA. The Indian Child Welfare Act was passed after Congress spent four years studying the forcible removal of Indian children from their families. During the height of the tragedy, up to 16 times more Indian children were in foster care than non-Indian children. Many of the problems were holdovers of the U.S. government’s abhorrent Indian boarding school policy. To this day, Black and Indigenous people see a higher rate of their children placed in foster care than non-Black and -Indigenous people. In most cases, children are removed because someone has determined they are being neglected. This makes perfect sense. But as University of Pennsylvania professor Dorothy Roberts pointed out on CBS’ Sunday Morning, “Neglect is usually confused with poverty. Neglect is defined by most states as parents failing to provide the resources that children need, like clothing or food or secure housing. And those are usually caused because parents simply can’t afford them.”
It is a truly savage system that punishes people whose socioeconomic status is largely the result of decades of discrimination and neglect. Fortunately, Congress recognized the cruelty of the foster care system, as it was applied to American Indians, along with the human rights violations involved in forcibly transferring children of one group to another group. This is why Congress passed ICWA in 1978.
So, what is this case really about? It’s about commerce. It’s another salvo in the prolonged campaign to weaken and ultimately to end tribal sovereignty. It’s about the perpetual longing of the wealthy and powerful for tribes’ ancestral homelands and especially the resources they contain. For as long as tribes have the ability (albeit limited) to protect their ancestral lands from destructive development and the independence afforded by successful economic ventures, tribal sovereignty will always be seen as an obstacle to this incessant taking. The problem exists because of the United States’ unwillingness to consistently honor its values and promises. The problem is rooted in 1871, when Congress stopped making treaties with tribes and effectively reduced them to domestic dependent nations.
Yet this new status also created a duty on the part of the federal government to protect tribes. It is this duty, as exercised by Congress through its plenary power, that the Brackeen case seeks to exploit. As Justice Neil Gorsuch mentioned during oral arguments, “This new rule would, I think, take a huge bite out of Title 25 of the U.S. Code, which regulates the federal government’s relationship with tribal members.” Gorsuch went on to say, “We’d be busy for the next many years striking things down.” This duty of protection has a spotty record, so many tribes are concerned.
I am concerned, but I am also hopeful. As a U.S. citizen, I’m hopeful that our purported values will prevail. As a tribal citizen, who was orphaned at the age of 12, I know that our tribes are resilient and that our communal values will see that we continue to raise our children in supportive communities, surrounded by the culture and heritage they know best.
Richard Boland is a citizen of the Timbisha Shoshone Tribal Nation and hosted the KNPR podcast Native Nevada. This essay originally ran in Desert Companion’s Jan. 12 newsletter. Supreme Court observers expect the court to issue its decision on Brackeen v. Haaland in June.