The morning after Election Day, as many Americans waited to learn whether Democrats would retain the power to pass laws that will later be invalidated by conservatives on the Supreme Court, the court heard a critical case aimed at rescinding key rights held by Native Americans. The conservative legal apparatus has launched a frontal attack on the Indian Child Welfare Act (ICWA), and with it an attempt to redefine the nature of tribal sovereignty.
The case is called Haaland v. Brackeen. At issue are the claims of non-Native plaintiffs who wanted to adopt Native children through the foster care system but claimed they were thwarted by ICWA. The law requires state agencies to make “active efforts” to place Native children who are in the foster care system or up for adoption with their families or tribal communities. ICWA was passed in 1978 in response to the long and gross history of white families (with the aid of state agencies) taking Native children against the will of those Native communities. Before Congress passed ICWA, studies showed that over 25 percent of Native children were being removed from their birth parents, and 85 percent of those children were placed outside their families and communities.
The plaintiffs in Brackeen contend that ICWA violates the 14th Amendment of the Constitution and is an overreach of federal power. They say that ICWA’s preference for Native families is discriminatory toward non-Native (largely white) families and should be prohibited under the equal protection clause.
There is a deep irony to this claim by white families, who are in essence the beneficiaries of centuries of theft, discrimination, and outright genocide of Native peoples, that they are the victims of a law preventing them from claiming Native children against the will of tribal governments. More to the point, this case should not turn on the race of the families involved in the dispute because, from the perspective of ICWA, race is irrelevant.
Tribal identity has long been considered a political category, not a racial or ethnic one. Accordingly, ICWA doesn’t consider the race of the adoptive family but instead considers the national identity of the people they’re taking the babies from. Justice Amy Coney Barrett’s family and my family would be treated exactly the same if we wanted to adopt a Native child under ICWA: as foreigners. And that is exactly the same way we’d be treated if we wanted to adopt a child from Russia or China or Botswana. The law protects the ability of tribal authorities to decide for themselves what’s in the best interest of Native children, without unnecessary meddling from the United States government.
Unfortunately, conservative justices were so obsessed with how the law treated white people, they lost the plot of how the law protects independent sovereign governments. Alleged attempted rapist Brett Kavanaugh put it most bluntly when he called the case “difficult” because, he suggested, ICWA violates the “fundamental principle we don’t treat people differently on account of their race or ethnicity or ancestry.” Meanwhile, Amy Coney Barrett worried that ICWA requires the states to take “active efforts” to keep Native families together. Chief Justice John Roberts crafted a hypothetical in which he asked whether the “best interests of the child” were really being served by keeping Native children within Native communities if there was a loving non-Native family willing to adopt.
These justices, fresh off the anti-affirmative-action oral arguments at which they whined and pined for deans of college admissions to ignore the race of the applicants, couldn’t ignore the race of the plaintiffs in Brackeen, even though there were objective, nonracial factors on which to base the case.
The fact that Brackeen is even in front of the Supreme Court is a triumph of the racialized arguments of the plaintiffs over long-standing tenets of constitutional law. Both the federal Constitution and Supreme Court precedent say that Congress and the executive branch have exclusive, “plenary” powers to govern relations between the United States and sovereign tribal nations. But conservative judges from the Northern District of Texas and the Fifth Circuit Court of Appeals ruled that ICWA was an unconstitutional overreach of congressional power. Their theory is based largely on an ahistorical law review article published by a talk show host and failed gubernatorial candidate from Montana, who argues that congressional power extends to “trade” with tribal nations and nothing else. Conservatives also argue that ICWA “commandeers” state governments (by forcing them to try to place Native children with sovereign Indigenous nations) in violation of the 10th Amendment.
It’s not going to come as a galloping shock to astute readers that the argument supported by a random talk show host from Montana—as well as, apparently, Clarence Thomas—is nuts. But it may come as a shock to learn that not all of the conservative justices seemed to be on board with it.
Neil Gorsuch suggested that he would break ranks with his conservatives colleagues. Gorsuch is a consistent defender of states’ rights and takes a dim view of congressional power, unconstitutional racism at the state level be damned. If the case was really about race or congressional overreach, one would expect him to go with #TeamWhite and #StatesRights, like he always does.
But Gorsuch is also the staunchest defender of Native sovereignty on the court. At oral arguments, he joined the liberals in pushing the issue of sovereignty over the race-conscious concerns of his conservative colleagues. He argued that the preferences called for by ICWA are political, not racial, and thus constitutional.
Whether Gorsuch can attract a fifth vote to his point of view is hard to say. The reason there’s a fifth vote in play at all is because, even if conservatives think ICWA forces racial distinctions, it’s not clear that such an analysis favors white families trying to adopt Native children. Even Kavanaugh seemed to acknowledge that respect for Native families was a legitimate goal, given the long history of oppression faced by Native Americans at the hands of the United States.
If only justices like Roberts, Barrett, and, yes, Kavanaugh could be more… color-blind, they might see that ICWA is not designed to discriminate against this country’s precious white families but instead is designed to protect sovereign peoples from our rapacious confederation of states. But white Americans are so used to stomping around this continent like they own the place that the mere concept of respecting the authority of Indigenous nations had conservative justices worrying that white families were being racially oppressed.