Supreme Court Ruling Upholds Native Sovereignty—For Now

If you felt a sudden shift in the winds on Thursday, June 15, it may well have been connected to an enormous, collective sigh of relief from Native America. When our current supermajority-conservative Supreme Court, so far known neither for its will to preserve civil rights nor its respect for precedent, ruled in a 7-2 majority opinion to preserve the Indian Child Welfare Act (ICWA) in Haaland v. Brackeen, Native nations dodged a bomb of Earth-shattering proportions.

This suit represented a brazen attack by the state of Texas and evangelical foster parents (using fossil fuel industry lawyers) to put Native children and families in the crosshairs—but also, potentially, Federal Indian Law and tribal sovereignty as we know it. That was no accident. All the well-earned joy we feel about this monumental legal win must be tempered by three key takeaways. 

The moment colonizers came to our shores, the genocide of Indigenous people began.

First, the decision simply preserves the status quo. Second, the status quo remains hugely problematic. Finally, this fight is a long way from over, and important work remains to be done. Even if we have avoided disaster for now, the current state of affairs leaves much to be desired. A little historical context can help explain why. 

The moment colonizers came to our shores, the genocide of Indigenous people began. Displaced from their homelands through forced removal, our Native ancestors were subsequently sequestered onto reservations, which were internment camps by a different name. Later, as a way of fully dismantling the cultures indigenous to these shores, federal and state governments began specifically targeting our children.

For about a century, beginning in the late 1800s, North American governments uprooted Native children from their homes and sent them to Indian boarding schools. As the recent discoveries of mass graves of Native children on these properties make all too clear, the conditions were brutal. You’ve probably heard the famous quote from Brigadier General Richard Henry Pratt, former superintendent of the Carlisle Indian Industrial School in Pennsylvania: “Kill the Indian in him, and save the man.” The hard truth is that saving the man was always the lesser priority.

The weaponization of our children in order to stamp out our cultures—because, of course, a family or a nation without children has no future—continued after the boarding school era with the epidemic of state-sponsored removal of our young ones and their placement into non-Native foster care. I grew up on the Standing Rock Nation in the Dakotas, and too many of my relatives lived in fear that their children could simply vanish into a mysterious and faraway home. In South Dakota, more than 50% of all children in the foster care system are Native, though we make up only 15% of the population. It’s been estimated that nationwide pre-ICWA, a quarter to more than a third of our children were taken from their homes.

That’s the backdrop that moved former South Dakota Sen. James Abourezk—who until his passing earlier this year, chaired our Lakota People’s Law Project advisory board—to author and sponsor ICWA. Passed by Congress and signed into law by President Jimmy Carter in 1978, ICWA keeps Native children in kinship care with Native families and is considered the gold standard in child welfare practice and policy by a sizable coalition of child advocacy organizations.

In Brackeen, the petitioners challenged the law in several connected ways. In simple terms, they claimed that Congress overstepped its authority (well-established through Federal Indian Law and prior precedent) in commandeering state courts and agencies by insisting they place Indigenous children in Native foster and adoptive care. They also argued that ICWA’s placement preferences for Native adoptive children, which gives tribes, as sovereign political entities, the right to seek Native homes for them, violates constitutional guarantees of equal protection. In other words, they claimed ICWA is racist against non-Native (mostly white) people.

Native organizations and advocates have spent years preparing for this moment.

Happily, the Court ruled that petitioners lacked proper standing to present their arguments. In a nutshell, the majority said that the petitioners failed both to demonstrate that the Court could remedy harm done to them (the Brackeens, for whom the suit is named, actually succeeded in adopting two Native children) and that they sued the wrong people. The suit’s defendants—the federal government’s Department of the Interior and its secretary, Deb Haaland—don’t administer child welfare; states do.

The Court, then, ultimately didn’t even consider questions of equal protection. Importantly, however, it did leave the door open for future challenges on those grounds. In his concurrence, associate justice Brett Kavanaugh essentially invited future petitioners with proper standing back to present arguments. 

That’s a red flag. If we needed further indication that the Court won’t be consistently favoring Native communities in its decisions, less than a week after the majority opinion in Brackeen dropped, it ruled against the Navajo Nation in a major water rights case.

As for the arguments regarding congressional authority and commandeering, the Court upheld long-standing precedent. It recognized that Congress possesses a “muscular” and broad range of power on behalf of the federal government, with whom tribes have a “trust” relationship as dependent sovereigns. Put a different way: under the law, “Indian” isn’t actually a racial classification. It’s political, because tribes have a nation-to-nation relationship with other governments, including the United States.

Given some of its prior decisions, it was far from certain the Court would respect precedent, treaty obligations or the foundations of Federal Indian Law. A different ruling on these issues might have precipitated a domino effect of further decisions undermining tribal sovereignty. It’s nearly certain that more attacks will come. A coalition of special interests has worked long and hard to attack ICWA—and use any other means—to compromise the power of Native nations. And because they also have a reliable legal avenue through the courtroom of a far-right federal judge, Reed O’Connor in Texas, they can get those cases into consideration by the high court. 

I’m so grateful to all who participated in the massive organizing to protect this law. Native organizations and advocates have spent years preparing for this moment. When it came, all hands were on deck to create effective media outreach, draft scores of briefs for the justices (including one from Lakota Law), and provide top-notch legal representation.

Now we must stay proactive and vigilant in all quarters. The federal government, which provides foster care funding to states, can take an active role in demanding those states create more resources to help keep Native kids with Native families. States must abide by and enforce the law. We’re also asking lawmakers to create legislation to codify the key aspects of ICWA at the state level, further buttressing its enforcement and implementation. 

In the end, the Supreme Court’s decision demonstrates that Native nations can win—even against the odds—by uniting in a collective effort with a cohesive strategy.