On June 15, in a 7-2 ruling, the U.S. Supreme Court upheld the Indian Child Welfare Act when it ruled in favor of the federal government and tribal governments in the case Haaland v. Brackeen. The case, which originated with a Texas couple’s attempts to adopt two Navajo children despite the tribe’s ability to find a placement for the children within Navajo Nation, was seen by many as an attempt to fundamentally dissolve tribal sovereignty.
Justice Amy Coney Barrett wrote the majority opinion, rejecting all challenges to 1978 law, “some on the merits and others for lack of standing.” The decision acknowledged the complex issues raised by the case but decided not to address those as part of Haaland v. Brackeen. Justices Clarence Thomas and Samuel Alito were the dissenting votes. The ruling did not remove the children from the Brackeen’s home—nor children adopted by other named plaintiffs—as their adoption is finalized.
The purpose and history of the ICWA
Throughout history, Indigenous children have been the subject of forcible assimilation efforts, most notably in the religiously affiliated boarding schools throughout the U.S. and Canada. The boarding schools were explicit attempts to “kill the Indian in [the children], and save the man,” a phrase coined in 1892 by U.S. cavalry Captain Richard Henry Pratt, who opened a boarding school in Pennsylvania. The schools used brutal discipline, and it was not uncommon for children to die in their care. Adoption by white families, particularly during the 1950s and 1960s as part of the Indian Adoption Project, was widely accepted as a progressive effort in children’s welfare, and ostensibly an effort to save Indian American children from poverty and social ills.
But the genocidal logic of boarding schools and sterilization cannot be separated from the forced removal of children from their families and communities, said Ramon J. Vasquez, spokesperson for the Tap Pilam Coahuiltecan Nation and co-founder of the National Urban Indian Family Coalition.
“If we didn’t have the history that we have, maybe it would be different,” he said. “We’re just having a modern day conversation about an old issue. It’s the dismantling of our communities slowly.”
The Indian Child Welfare Act (ICWA), the federal law at the heart of Haaland v. Brackeen, was established in 1978 when Indian American activists presented compelling data showing that Indian American children were disproportionately removed from their families and placed with middle class white families. This was done without the consultation of their tribes, which, according to treaty law, have sovereign interest in their members. The ICWA clarified tribes’ established jurisdiction, and included children eligible for tribal enrollment, not just those already enrolled, as under tribal jurisdiction. Just like a couple cannot adopt a child from China or Russia without the consent of those governments, ICWA formally acknowledged the role of the tribal government in the adoption of Indigenous children, and established federal criteria for the removal of a child from Indigenous families.
“If it wasn’t a problem we wouldn’t have needed ICWA,” Vasquez said. “It’s going to be a problem as long as you have people who believe that we should all be part of the American dream.”
Vasquez separates “the American dream” — something imposed on Indigenous communities by colonialism — from the idea of strong families. The American Indians in Texas at the Spanish Colonial Missions, a nonprofit founded by the Tap Pilam Coahuiltecan Nation, has several campaigns to help Indigenous families create healthy, stable environments for their children. Other groups like the San Antonio Fatherhood Campaign, Mission on Motherhood, and 7th Generation Birth Services all aim to give parents the support they need — whether it’s diapers or someone to talk to. This benefits the children, of course, Vasquez said, and it also keeps the families from running afoul of Texas’ notoriously overburdened child welfare system.
Like most American Indians, the Indigenous community Vasquez serves does not live on a reservation. They live in cities, where bias toward white, middle-class American culture makes their children vulnerable to the state’s calculation of “the best interest of the child.” That calculation doesn’t account for a crucial part of Native communities’ understanding of wellbeing, Vasquez said.
“American Indians have a value of being interconnected and Western values are very individualistic,” he said. “When you apply Western values to non-Western people, there are people that know how to manipulate that.”
The Brackeen case opened up a national conversation on the evangelical values of the adoptive families, the criteria that states use to determine the best interest of the child, and the values that undergird ICWA and the Indigenous communities it protects.
Rev. Robert Two Bulls, Missioner for the Department of Indian Work (DIW) and Multicultural Ministries for The Episcopal Church in Minnesota, understands the desire to place kids in stable situations where their needs are met, but he’s also seen what happens when the need for connection is not met.
“When I was growing up, I knew kids who were adopted by white families and they struggled with who they were and how they were raised,” he said. “Some of them just didn’t fare well.”
He knows many American Indians who spend their adult lives searching for the family members they lost, both parents and children.
Two Bulls recalled an auntie he knew when he was growing up, a grandmother raising her grandchildren and several other relatives in a small house, miles from the nearest major road. There were 12 children in all, he said, and there was probably a lot about their home that looked impoverished next to a middle-class white family where each child has their own bedroom — it would have been easy for a state agency, if it wanted to, to make the case that they should be removed. But Two Bulls knew the kids who grew up there, and they did well in life, he said. They remained part of the community. “Who defines what poverty is? It comes from an affluent, capitalistic society,” Two Bulls said.
Two Bulls sees the generational struggles of Indigenous communities — many of which come from the enforced poverty of being colonized and repeatedly defrauded — but believes that there are enough strong families in those communities to care for their children. “The goal is to figure out a way for Native families to take in their kin,” he said.
What was at stake in Haaland v. Brackeen?
Both Vasquez and Two Bulls expressed sympathy for the Brackeens, the evangelical Christian family whose efforts to adopt Navajo children were challenged by ICWA. Neither questioned the couple’s desire to give the two Navajo children a loving home and a good life. The desire to care for orphans and widows is biblical, Two Bulls pointed out, but that’s not what motivates everyone involved, and he believes the Brackeens are being used as “pawns.”
Stacey Lara, co-director of the University of Washington’s Tribal Court Public Defence Clinic, pointed out that the adoption cases for the named plaintiffs in the case, the Brackeens, Librettis, and Cliffords, had been settled by the time the case made it to the Supreme Court. The placement of their specific children was not in limbo, but the case persisted as a constitutional challenge largely driven by states and private interests with a history of challenging tribal sovereignty.
Tribal sovereignty has been a thorn in the side of the casino gaming industry and energy corporations, which many believe led to pro bono legal representation by Gibson Dunn, the law firm that has represented oil interests in disputes with Indigenous groups, including the fight over the Dakota Access Pipeline. The ICWA decision does not necessarily close doors to future challenges, especially because the Court acknowledged that while “Congress’s power to legislate with respect to Indians is well established and broad…” Barrett wrote, “our precedent is unwieldy, because it rarely ties a challenged statute to a specific source of constitutional authority.”
In a concurring opinion, Justice Neil Gorsuch went deep into American history to conclude, “the responsibility for managing interactions with the Tribes rests exclusively with the federal government.” Gorsuch also laid out the well-established legal legacy of tribal sovereignty.
Federal laws like ICWA allow tribal lands to adopt different rules than the states surrounding them. Opponents of both ICWA and the Indian Gaming Regulatory Act claim that the laws violate the equal protection clause of the 14th amendment, framing American Indians as a race, not a nation. The racial premise, advocates say, has been a repeated effort to erase tribal nations’ sovereignty. That argument has been struck down repeatedly in past court cases, and was not upheld in lower courts as the Brackeen case made its way to the Supreme Court, but it was discussed at length during the oral arguments before the Supreme Court, Lara said. Tribal rights advocates and legal professionals watched this argument closely, as “it has huge implications for the ways you interpret other laws,” Lara said.
The court’s opinion offered a complex reasoning for denying the equal protection argument made by the plaintiffs, but Gorsuch’s concurring opinion reiterated the clear precedent of treating Indian tribes as political, not racial designations.
Another constitutional argument, state’s rights, fared better in the lower courts, and explains some of the involvement of the groups supporting the Brackeen’s case. In a state court, Texas claimed that ICWA’s preference for tribal placement violated Texas Constitution by superseding the state’s criteria for child welfare decisions, and a state court agreed.
Before the district court in Fort Worth, the the states signed onto the Brackeen case — Texas, Louisiana, and Indiana — argued specifically that ICWA violates the “anti-comandeering” doctrine derived from the 10th Amendment and the nondelegation doctrine implied by the separation of powers. The anti-comandeering doctrine holds that the federal government cannot make state agencies use their own resources or personnel to enforce federal laws or programs — such as the enforcement of ICWA. The federal government argued that there are numerous federal laws that dictate criteria and boundaries for state agencies. Barrett’s opinion listed a host of supporting examples as well.
“That’s very important in making it clear that federal legislators do have the ability to require state boards to do things,” Lara said.
The nondelegation doctrine prevents Congress from granting its administrative powers to another entity, which the plaintiffs argue is, in the case of ICWA, the tribal nations. The tribal governments have argued that they are not an administrative entity, but as sovereign nations are not subject to the nondelegation doctrine. The Court decided that the plaintiffs did not have standing under this doctrine. “Because Texas is not injured by the placement preferences, neither would it be injured by a tribal resolution that altered those preferences…” Barrett wrote, “Texas therefore does not have standing to bring either its equal protection or its nondelegation claims.”
The state’s standing rights argument posed its own threat to tribal sovereignty, Lara said. It would set a precedent allowing states to challenge other areas governed by federal law, including gaming and mineral rights, without a showing of an individualized interest. Few believe that this will be the last challenge to tribal sovereignty, or that equal protection and states rights are dead arguments — Justice Brett Kavanaugh’s concurring opinion seemed to allow room for an equal protection argument in particular. “That’s an issue that was not decided today,” Lara confirmed.
The decision made it clear that federal laws governing Indian Affairs do have broad basis in the Constitution, which shapes the challenges to tribal sovereignty to come, but likely will not prevent them. “There is a concentrated effort to minimize the idea of nations within a nation,” Vasquez said, but he is determined to continue strengthening those nations.
Editor’s note: This story was updated on June 16, 2023, to correct a misheard word in a quote from Stacey Lara, who said “state courts” not “state boards,” and to clarify her explanation of the state’s standing rights argument.