Court Case Threatens Native Sovereignty

A serious threat to Native American tribes across the United states looms large. A decision on the Supreme Court case Brackeen v. Haaland -- a direct assault on the constitutionality of the Indian Child Welfare Act (ICWA), and by extension, the very right of tribes to be classified as sovereign nations -- is expected later this year.
 

Enacted in 1978, ICWA was part of the federal government's efforts to rectify the incomprehensible harm it caused to Native families through the forcible removal of Native children from their communities into boarding schools or non-Native foster and adoptive homes. Between 1819 and 1969, hundreds of thousands of children were taken from their families and homes. 

 

ICWA establishes minimum standards for a Native child to be removed from their home and empowers tribes to be more involved in adoption and custody procedures for kids enrolled or eligible to enroll in tribal nations. The law gives tribal courts exclusive jurisdiction over members who live on tribal land, in the hopes of keeping families together, and creates a process whereby they're noticed and involved in cases outside of these boundaries.
 

For years, people and organizations hostile to ICWA have tried to erode the legislation through the court system. Should ICWA fall, it's not only adoption and foster cases that will be gravely impacted; the basic foundations of tribal sovereignty could be unwound. Observers in Indian Country have long believed that attacks on the legislation have broader aims in mind than the wellbeing of children, and many anti-ICWA proponents are also perceived as gunning for access to natural resources, mineral rights and more.
 

Calling into question the authority of Congress to deal with tribal nations as distinct sovereigns would have ​major reverberations throughout the field of Indian law. These attacks on sovereignty can be traced back to the Trail of Tears, the deadly westward displacement of five tribes between 1830 and 1850 initiated by then-President Andrew Jackson. The argument made at the time was that the tribes were being overwhelmed by European settlers, and they would be annihilated if the government didn't take them into custody and move them. ​In truth, those tribes controlled the waterways, and Andrew Jackson said, "​We want it, and we are going to take it."
 

Tribal sovereignty predates the coming of the colonial powers. From 1778 to 1871, the United States federal government signed 370 treaties with tribal nations. Many were used as tools to forcibly remove Indigenous people from their native lands and relocate them to reservations. In exchange for the land they had lived on for generations, tribes were offered many now-broken promises from the government: of peace, the provision of health and education, hunting and fishing rights and protection against enemies.
 

According to the Constitution, treaties can only be enacted between two sovereign nations. That status and the right of tribes to self-govern was affirmed in the 1832 Worcester v. Georgia Supreme Court case. It's also grounded in the Constitution through not one, but two clauses, and was reiterated yet again in the 1990s by a Department of Justice memorandum that tribal nations have the unique status of ​"domestic dependent nations." You can help protect tribal sovereignty by supporting the Native American Rights Fund.