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Sovereignty under attack

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  • Wayne L. Ducheneaux, II
    Wayne L. Ducheneaux, II Outgoing Executive Director Cheyenne River Sioux Tribe

If you follow current events in Indian Country, you’ve likely heard of Brackeen v. Haaland, the Supreme Court case challenging the Indian Child Welfare Act (ICWA). A group of non-Native plaintiffs, including a couple seeking to adopt a Native American child, filed the case in 2017. Brackeen v. Haaland argues that ICWA, a federal law passed in 1978, is racially discriminatory and violates the United States Constitution’s guarantee of equal protection. Rooted in both the fifth and fourteenth amendments, the Constitution requires both states and the federal government to provide equal protection of its governing laws. 

ICWA was originally enacted in response to the alarmingly high rates of Native children removed from their homes and placed in non-Native foster care and adoptive homes. Research demonstrates that when children are connected to their culture and community, they are more likely to build resilience and have higher self-esteem. ICWA’s purpose, therefore, is to protect the best interests of Native children by preserving their connection to their identity. The law requires that state child welfare agencies make “active efforts” to keep Native families together and place Native children who do enter the foster care system with Native families.

Racial vs. political membership 

Brackeen v. Haaland’s plaintiffs falsely assert that Native people are solely members of a race rather than a political group; they state that ICWA racially discriminates against non-Native people because it prevents them from adopting Native children. But, 400 years of Treaties uphold Native peoples’ membership in distinct political entities. 

Native nations’ status as sovereign political entities invalidates the plaintiff’s assertions of racial discrimination. Leaders from more than 180 Native nations who submitted an amicus brief to the Court remind us that ICWA is not about race, but rather, political identity. The law rests upon the well-established fact that Native nations are sovereign entities who have the right to govern their citizens. 

Think about it this way: ICWA only applies to children who are either enrolled citizens of a Native nation or eligible to enroll, similar to the way being a citizen of the United States is a political, rather than a racial, status. The Supreme Court has long recognized that federal laws treating Native people differently “create political, not racial, classifications and are not subject to strict scrutiny under the equal protection component of the Fifth Amendment.” 

ICWA affirms that Native nations have an inherent right to make decisions on behalf and in the best interest of their citizens. The law mandates that state courts and child welfare agencies collaborate with Native nations on issues related to child custody and adoption, further cementing Native nations’ right as a sovereign political entity to establish government-to-government relationships. Overturning ICWA would threaten nations’ ability to make decisions impacting their current citizens and future generations of citizens. 

The Supreme Court’s decision on Brackeen v. Haaland has implications beyond Native families. If the Court rules that ICWA violates the Constitution’s equal protection guarantee, the decision will significantly erode Tribal sovereignty. Nations’ rights to make governing decisions could be diminished in areas such as gaming, cultural preservation, government-to-government partnerships, violence against women, and natural resources, among others.

This is a complex issue, but we can all take action to protect ICWA. This article will give a broad overview of the issue and end with concrete action steps you can take to help protect ICWA.

How did we get here?

“Kill the Indian in him, and save the man,” or forced assimilation, formed the backbone of federal Indian policy for decades. Two of the most insidious examples of this approach that damaged Native families are boarding schools and the Indian Adoption project.

Boarding schools

Most often operated by the federal government and Christian churches or missionaries, boarding schools removed hundreds of thousands of Native American, Alaska Native, and Native Hawaiian children from their homes between 1889 and the 1960s. The schools aimed to assimilate children by forbidding them from speaking their language and practicing their culture, forcing them into manual labor, and subjecting them to physical and emotional abuse. The boarding school program strategically sent children to schools hundreds of miles away from home to discourage visitation and escape. Boarding schools separated generations of Native youth from their people and their culture, inflicting trauma that endures to this day within Native communities. 

Indian Adoption Project

Beginning in the 1950s, the federal government began to question the “success” of boarding schools. The Bureau of Indian Affairs (BIA) shifted their focus to a new strategy called the Indian Adoption Project. Operated cooperatively by the Child Welfare League of America and the BIA, the Project encouraged white families in sixteen states to adopt Native children. The language below comes from BIA press release about the Project: 

“One little, two little, three little Indians–and 206 more–are brightening the homes and lives of 172 American families, mostly non-Indians, who have taken the Indian waifs as their own.

A total of 209 Indian children have been adopted during the past seven years through the Indian Adoption Project, a cooperative effort of the Department of the Interior’s Bureau of Indian Affairs and the Child Welfare League of America. Adoptions are arranged through customary court procedures.”

The Project went a step further than boarding schools, permanently removing Native children from their families and communities. 

Native people and nations spent decades organizing and testifying about the harm inflicted by boarding schools and the Indian Adoption Project. Lawmakers finally passed the Indian Child Welfare Act in 1978 to protect Native children and families.

A gold standard in child welfare policy 

The National Indian Child Welfare Association notes that before ICWA, between 25-35% of all Native children were removed from their homes. Of those, 85% never returned to their homes. Native Governance Center Executive Director Wayne Ducheneaux II visualizes the magnitude of these statistics as follows: “I picture a small community like my own with 1,000 students in a school. I imagine that 350 of these children are taken from their homes. Of these 350, 300 children never return to their community. I think about the immense trauma this would cause to children and families. And I also imagine the 50 children who were able to return would likely feel a great deal of guilt.”  

ICWA has largely succeeded in keeping Native children connected to their families and culture. The law addresses the systems previously used to remove children from their homes and recognizes Native children’s unique political status as citizens of sovereign nations. Leading child advocacy organizations consider ICWA to be “the gold standard” of child welfare policy; aspects of the legislation are now considered best practices in the field. 

Of course, there’s still progress to be made because ICWA is still a necessity. The National Indian Child Welfare Association states that Native families are four times more likely to have their children removed and placed in foster care compared to white families. And, state child welfare and private adoption systems’ non-compliance with ICWA continues to result in Native children being removed from their families. Recently, the BIA issued updated federal guidance in an attempt to mitigate compliance issues.  

Implications for sovereignty and governance

ICWA upholds and strengthens Tribal sovereignty. It affirms Native nations’ sovereign political status by acknowledging that Native people have a distinct political identity. Native nations’ political status as sovereign entities makes ICWA’s preferred placement mandate possible. 

The attack on ICWA is a coordinated attempt to chip away at Tribal sovereignty. If the attempt succeeds, many states would likely feel emboldened to launch their own attacks to further undermine sovereignty. Federal law currently prevents states from encroaching upon Tribal sovereignty; overturning ICWA could undermine this power and result in challenges at the state level. When Native nations are constantly forced to defend their sovereignty and treaty-guaranteed rights, they’re less likely to have time to strengthen their governance and preparedness. 

Let’s dig into the other potential implications of the Supreme Court’s ruling on Brackeen v. Haaland. On its own, overturning ICWA would have serious negative impacts on Native children and families. But the implications extend beyond individuals and could have lasting effects on Tribal sovereignty and governance. Beyond these implications, overturning ICWA could impact various aspects of federal Indian law and Indigenous governance, including: 

Gaming

Similar to child welfare, Native nations’ ability to engage in gaming is codified in federal law. Adopted in 1988, the Indian Gaming Regulatory Act provides the legal framework Native nations use to engage in gaming activities on their lands. If ICWA is overturned and the underlying legal principles supporting Tribal sovereignty and jurisdiction are eroded, legal challenges questioning Tribal jurisdiction, land rights, and authority to regulate gaming activities could emerge.

Cultural Preservation

ICWA recognizes the importance of maintaining a Native child’s connection to their culture. If overturned, we could see threats to laws focused on the importance of preserving Native culture, such as the Native American Graves Protection and Repatriation Act (NAGPRA). NAGPRA establishes the rights of Native nations to repatriate human remains, funerary objects, sacred objects, and other objects of cultural patrimony from federal agencies and museums. 

Violence Against Women Act

The Violence Against Women Act (VAWA), which was recently reauthorized in 2022, contains provisions affirming the sovereign authority of Tribal governments to exercise criminal jurisdiction over non-Native people who perpetrate violence against Native women. If Tribal sovereignty and jurisdiction are weakened as result of Brackeen v. Haaland, non-Native perpetrators could evade prosecution for committing crimes against Native people.

Government-to-Government Relationships

ICWA demonstrates the type of positive government-to-government relationship that upholds and honors Tribal sovereignty. The law mandates that states work with Native nations on child welfare issues. If overturned, states may begin to attempt to resist working with Native nations, making agreements on issues like law enforcement, sales tax, infrastructure, and others difficult to secure and maintain. 

Natural Resources

Advocates feel concerned that if ICWA is overturned, the case will weaken Tribal sovereignty and nations’ ability to make decisions about their lands and resources. Professor of Indigenous history Hayley Negrin explains, “Many in Indigenous communities and their allies worry that, as in the past, settlers may be using Native children to access Indigenous resources, especially oil on Tribal lands.”

Take action to protect ICWA

Native nations know what’s best for their people. As sovereign nations, they have the right to protect the wellbeing of their citizens (in this case, Native youth and families) and plan for the next seven generations. Take action to show your support for ICWA–both on a personal level and through outreach to your political representatives:

  • Download and share a social media toolkit from the National Indian Child Welfare Association.
  • Sign and share Illuminative’s petition. 
  • Research the status of Native child welfare laws in your state. Several states have already passed comprehensive ICWA-type laws to ensure protections continue if ICWA is overturned. If your state is actively considering a bill, reach out to your lawmakers to let them know you support it. 

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