This November, the Supreme Court will hear Haaland v. Brackeen—a case that could have catastrophic consequences for Indian country. The plaintiffs are challenging the constitutionality of the Indian Child Welfare Act of 1978, arguing that the law discriminates against non-Indian adoptive parents on the basis of race. More specifically, they claim that the law institutionalizes discrimination against white families in the adoption of American Indian children.
The plaintiffs’ argument fails to take into account the reasons why the ICWA prioritizes the placement of Indian children in Indian homes. American Indian identities are derived solely from the status as citizens of our Tribal Nations (that is, “American Indian” is a political status—not a racial identity).
This case is about so much more than Indian youth and this single law, and Anti-Indian constituencies have jumped at the chance to support the plaintiffs. “For the beneficiaries of centuries of forced dispossession and murder of Native people to cry ‘discrimination’ when Native groups try to stop them from taking their children is madness. And yet it’s totally on brand for the modern conservative movement,” explained Elie Mystal in The Nation last week. If the Supreme Court sides with the plaintiffs and thus establishes a new precedent, inappropriately racializing Indian identity, the implications of this case could be far-reaching.
Such a ruling would fly in the face of long-standing legal precedents that American Indian identity is a political status, which long predate but were explicitly affirmed in Morton v. Mancari almost 50 years ago. Much of American Indian law and tribal law in fact rests on this foundation, and with this critical piece removed, many worry that the sovereign status of American Indian tribes could be undermined.
The Indian Child Welfare Act was passed unanimously by Congress in 1978 in response to widespread abductions of large numbers of Indian youth from their homes. Toward the end of ensuring that these children remain with their families and within their communities, the act expanded the jurisdiction of tribal courts in welfare cases involving Indian children.
Prior to the act, the US government used boarding schools, foster care, and forcible adoption to sever Indian youth from our families, cultures, and identities. This was done as part of a systematic effort to destroy and eliminate us and Tribal Nations. As Cherokee Nation citizen and author of the This Land podcast Rebecca Nagle makes clear, “a tribe without children doesn’t have a future.”
Throughout the 19th and into the 20th century, hundreds of thousands of Indian children, including many of my relatives, were sent to boarding schools designed to “assimilate” them to settler values and cultural practices, stripping them of their cultures and identities. Eventually, adoption eclipsed boarding schools as a “softer” strategy of assimilation. In the 1950s, the Bureau of Indian Affairs launched the Indian Adoption Project, through which the government paid the Child Welfare League of America to take Native children for white families to adopt.
The National Indian Child Welfare Association (NICWA) reports that prior to the ICWA as many as 35 percent of Indian children were taken from their families, with 85 percent of these children placed outside their families and communities—even when relatives were willing and able to take them in. The ICWA established protections for Native youth in the child welfare system, with the primary goal being to preserve family, tribal, and cultural ties.
In the placement of Indian children, the ICWA prioritizes family members, fellow tribal members, and other Indian families over non-Indian families. Both Indian and non-Indian child welfare experts and organizations regard the ICWA, which has very broad and deep bipartisan support, as the gold standard of child welfare policy. For the Haaland case, 497 Tribal Nations, 62 Native organizations, 23 states and DC, 87 congresspeople, and 27 child welfare and adoption organizations have offered support for the ICWA in the form of an amicus brief against the plaintiffs.
Even with the protections of the ICWA, Indian children disproportionately enter the child welfare system and are removed from their homes—at up to three times the rate of white children. In some states, Indian youth are at even higher risk. For example, in Minnesota, one in three Native children is at risk of entering foster care. In Alaska, that number is one in five. These statistics show that, contrary to what the plaintiffs in Haaland are arguing, the ICWA remains vital for the protection of Indian youth and our Tribal Nations.
Despite overwhelming evidence of the necessity of the ICWA, the Supreme Court has seized the opportunity to hear the Haaland case, scheduled for November 9. The plaintiffs allege that by prioritizing family and tribal members in the placement of Indian youth, the ICWA discriminates against non-Indian families on the basis of race in violation of the Equal Protection Clause.
The argument that the ICWA is racist is fundamentally incorrect. Tribes are sovereign nations with nation-to-nation relationships with the United States. In the same way that I am a citizen of the United States, I am a citizen of the Choctaw Nation. Our Indian identities are based on our citizenship in our Tribal Nations, which is an entirely separate matter from our racial identities.
There are a number of actions that Indians and allies can take to raise awareness and bolster support for the ICWA, including signing and spreading a petition from Protect ICWA. And on October 12, the NCAI Youth Commission will be cohosting a virtual rally alongside the Protect ICWA Campaign. “We offered new ICWA supporters concrete ways to stand up for ICWA: signing up to receive timely information about threats to ICWA, sharing what they were learning about ICWA with their personal and professional networks, and urging them to sign our petition and attend virtual rallies held by NICWA partners to continue to spread the word and build public support,” said Sarah Kastelic, executive director of the NICWA. “As we watch the number of signatures on our petition grow, we know we’re converting people’s interest in learning about this gold-standard child welfare law to concrete action in support of ICWA.”
If the Supreme Court sides with the plaintiffs and rules that the ICWA violates the Equal Protection Clause, thus disregarding an immense body of federal and tribal law and establishing a new precedent that Indian identity is a racial identity, the consequences for Tribal Nations would be catastrophic. Rebecca Nagle contends that anti-Indians are using Haaland v. Brackeen as a Trojan horse. If the Supreme Court breaks from extensive existing legal precedents to make the rogue claim that American Indian identity is a racial identity, continued federal acknowledgment of the sovereignty of our Tribal Nations is at risk, along with the trust status of tribal land.
In fact, Indian land is very likely the brass ring for the plaintiffs and their supporters. Despite comprising only 2 percent of land in the United States, tribal lands hold about a third of fossil fuel resources, valued at around $1.5 trillion.
Tribal governments, lands, and people are under attack. If the Supreme Court rules in favor of the plaintiffs in Haaland v. Brackeen, the result could be a massive wave dispossessing us of our land—a story that, unfortunately, is already too familiar.