Editors’ note: This is part of an ongoing series on issues of Native sovereignty before the U.S. Supreme Court. Other entries in the series can be found here and here.
Today, Monday, Oct. 10, is Indigenous Peoples’ Day in the United States. It represents an opportune time to celebrate and reflect upon indigeneity and its contemporary meaning. Last year, President Joe Biden formally recognized Indigenous Peoples’ Day through proclamation, marking the first time it was observed at the federal level (with an increasing number of state and local governments observing in recent years); on Friday, Biden again issued a proclamation recognizing Indigenous Peoples’ Day for 2022. For Indigenous people, the celebration causes waves of emotions reflecting troughs of colonialism, history, and trauma with crests of education, resilience, and hope.
Ten days before Indigenous Peoples’ Day, Indigenous people across North America recognized the impacts of colonialism and trauma surrounding residential boarding schools by observing Canada’s National Day for Truth and Reconciliation, also known as Orange Shirt Day, on Sep. 30. Indigenous people note that boarding school trauma is not unique to Canada, but also occurred throughout the United States. The federal boarding school system in the United States separated thousands of Indigenous children from their families, communities, and culture between 1860 and 1978. The U.S. system mirrored the residential school system in Canada.
Transitioning from Orange Shirt Day to Indigenous Peoples’ Day requires complex thought and consideration. As Indigenous people and allies celebrate and reflect, it is equally imperative to understand and champion both historical and contemporary issues – and to understand the ways in which past and present intersect.
Haaland v. Brackeen and the History of Federal Removal of Indian Children
Currently, a case that could upend Federal Indian law awaits decision by the U.S. Supreme Court, Haaland v. Brackeen. Understanding Brackeen requires understanding the history of the United States government’s federal Indian policy, which for generations was one of systematic removal. The case was originally brought by Texas (and other states since removed from the case) and several individual plaintiffs, challenging the constitutionality of several provisions of the Indian Child Welfare Act (ICWA) of 1978. ICWA is a federal law that provides standards for the removal and out-of-home placement of American Indian children, to protect their best interests and keep them connected to their families and Tribes. The standards specify that tribes retain jurisdiction over their tribal member children through their respective tribal courts, and if a tribe does not have a tribal court, then the court will provide the tribe the right to intervene as an interested party. Further, ICWA incorporates an integral standard by granting preference to members of the child’s extended Indian family for placement of the child. Both of these standards bolster tribal sovereignty, ensuring that tribes exercise jurisdiction over their tribal member citizen children.
ICWA was the federal government’s response to the systematic removal of American Indian children. Removals occurred without any evidence of abuse or neglect that would normally be considered grounds for removal, and the children were placed with non-Tribal families, with the intent to deprive them of their family or culture. The legislative history of ICWA contains firsthand accounts of what families endured, as well as its damaging effects on tribal nations and communities. Testimony from the Executive Director of the Association on American Indian Affairs William Byler included:
The wholesale removal of Indian children from their homes . . . is perhaps the most tragic aspect of Indian life today. . . The disparity in rates for Indian adoption and non-Indian adoption is truly shocking. . . In South Dakota, 40 percent of all adoptions made by the State’s department of public welfare since 1968 are of Indian children, yet Indian children make up only 7 percent of the total population. The number of South Dakota Indian children living in foster homes is per capita nearly 1,600 percent greater than the rate of non-Indians.
ICWA is a statutory mechanism to reverse the previous policy by preserving Indigenous culture by prioritizing placement with their relatives or other Indigenous families recognizing the sovereignty of tribes. Tribal sovereignty includes ensuring that its tribal member children are adequately provided access to homes, resources, and culture. Advocates consider ICWA the gold standard in child welfare practice.
Brackeen involves a complex set of facts and procedural posture, which are the subject of the “This Land” Podcast, Season 2, from journalist Rebecca Nagle. In brief, in 2016, Child Protective Services removed a ten-month old Navajo boy from his home and placed him with Texas couple Chad and Jennifer Brackeen. The following year, a Texas state court terminated the parental rights of both biological parents, the boy’s Navajo mother and Cherokee father. Pursuant to ICWA provisions, the Navajo Nation sought to place the child with a Navajo family but was ultimately not successful. The Brackeens were allowed to adopt the child. Later, the Brackeens also tried to adopt the boy’s biological sister in state court, but the girl’s extended family also sought placement of the girl. The Brackeens, as well as other couples and three states, argued that ICWA’s placement preference constituted constitutionally impermissible racial discrimination.
In 2018, a federal district court in Texas agreed, holding that the ICWA violated the U.S. Constitution. The U.S. federal government and four affected tribes, the Cherokee Nation, Oneida Nation, Quinault Indian Nation, and Morongo Band of Mission Indians, appealed. The Fifth Circuit initially reversed, holding that the legislation was not based on impermissible racial classifications. However, the Fifth Circuit sitting en banc subsequently issued a (325-page) decision indicating that, while parts of the ICWA were constitutional, the provisions regarding adoptive placement and preference of Native children with Native families violated the Equal Protection clause of the Constitution. After this decision, the federal government, Texas, the Cherokee Nation and other intervening Tribes, and the Brackeens all filed petitions for writ of certiorari to the United States Supreme Court, with various parties challenging different portions of the decision. The Supreme Court granted and consolidated the petitions.
Tribes’ Sovereignty Forms the Basis for ICWA
The challenge, if successful, will undermine and threaten constitutionality in other areas of federal Indian law. Nearly all of Indian Country is aware of this seminal case, as the tribal and federal defendants garnered over 20 supporting amici briefs. For example, one amicus brief garnered the support of nearly 500 sovereign Indian tribes and over 60 tribal and Indian organizations. The brief articulates that Native peoples have governed themselves under their own laws since time immemorial, and tribal sovereigns, in a showing of unity, filed on behalf of their members’ children and their respective futures.
Since the founding of the present-day United States, Indigenous people through their respective Native nations formed a government-to-government relationship with the United States, forming treaties until 1871. After 1871, the federal government and tribes transitioned to treaty substitutes, like codified congressional acts and executive orders. Nevertheless, many treaties and treaty substitutes contain provisions that obligated the federal government to provide for the general protection of Native people, including the specific care and education of Native children. Under the trust responsibility and budget appropriations, Native children’s education grew into a nationwide program under which the federal government established and ran boarding schools.
The amicus brief on behalf of the American Historical Association and the Organization of American Historians, filed by the NYU-Yale American Indian Sovereignty Project, where I am the clinical fellow, along with Akin Gump Strauss Hauer & Feld, LLP, identified the “historical understanding and practice” of federal and state power over Indian affairs and the welfare of Native children and the historical context leading to and surrounding the enactment of the ICWA. The Sovereignty Project provided a needed historical brief for the U.S. Supreme Court’s review.
The historical brief explains the federal government’s role – together with those of complicit state and local governments – in the boarding school era, which ultimately the government found to be a failed federal policy. The federal government shifted to the closure of boarding schools and transitioning the care of Native children and families to the states. Oftentimes, the states objected to providing such care. States hedged that the care of Native children and families was the exclusive responsibility of the federal government. The federal government entered into contracts with several states to fund general welfare programs affecting the care and education of Native children and families. Nonetheless, the states approached the care from a budgetary, cost-saving perspective and determined to reduce welfare costs. States found that removal of Native children from homes reduced welfare costs as Native children required less financial resources when placed into foster or adoptive homes.
State and local governments removed a startling 25-35% of Native children from their homes by the late 1960s—a full quarter to third of the next generations. The outcome ensured that Native children were raised in homes without tribal cultural or familial ties, denying sovereign tribes’ future members who could incorporate tribal linguistic, cultural, and political ideals. Tribes were robbed of citizen members with connections to their nations. The removal of Native children led to studies and congressional hearings, and ultimately the passage of ICWA in 1978.
During a parallel timeframe, the United States implemented the Vienna Convention on Consular Relations, which codifies protections for the interests of foreign national children between sovereign states. Both ICWA and the Vienna Convention require that state courts: identify children subject to the respective law; notify the child’s potential other nation (keeping records of that notice); collaborate with the representative of the child’s nation; and provide a guardian. Just as the Constitution allows the United States to recognize a foreign sovereign’s jurisdiction over its own nationals pursuant to the Vienna Convention, it allows the United States to recognize a Native sovereign’s jurisdiction over its own citizens—because the classification is one of citizenship and sovereignty, not of race. The historical brief highlights that ICWA must also be viewed against the complete historical record of federal and state power over Indian Affairs and the welfare of Native children. The historical record demonstrates that the care and education of Native children is within the constitutional powers of Congress.
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Biden’s Proclamation on Indigenous Peoples’ Day, 2022, noted:
On Indigenous Peoples’ Day, we honor the sovereignty, resilience, and immense contributions that Native Americans have made to the world; and we recommit to upholding our solemn trust and treaty responsibilities to Tribal Nations, strengthening our Nation-to-Nation ties.
It is a priority of my Administration to make respect for Tribal sovereignty and self-governance the cornerstone of Federal Indian policy. History demonstrates that Native American people — and our Nation as a whole — are best served when Tribal governments are empowered to lead their communities and when Federal officials listen to and work together with Tribal leaders when formulating Federal policy that affects Tribal Nations.
Today, on Indigenous Peoples’ Day, Indigenous people grapple with colonialism, history, and trauma. A future that truly honors Indigenous people and Tribal Nations must be rooted in sovereignty and begin from a place of self-determination – including jurisdiction over a sovereign Tribe’s own members. Tribal sovereignty has a storied history with a complex legal relationship with the United States. Contemporaneous indigeneity allows Indigenous people and allies to see that history while simultaneously recognizing and celebrating the exercise of tribal sovereignty. The intersection of the past and present provide education, resilience, and hope.