Article Summary

Indigenous Sovereignty is more than law. It encompasses culture, preservation of heritage, language, unique commerce, and environmental connections among many other facets. There is a chance that Haaland v. Brackeen and the four cases that are being heard under Haaland v. Brackeen can affect child welfare, as well as an entire way of life for an entire sector of our population. The cases before the Court have the Justices discussing the constitutionality of cases, acts, laws and precedents that have come before. The Court heard these cases in November of 2022, are discussing, and expected to rule this spring.

A case of this potential magnitude has received little to no mainstream press. What’s also vital to take away here is how little standardized education has prepared most of us to understand the plight of Indigenous people. I assert that the majority of people who make up the United States of America believe oppression to this group of people is a thing of the past.  I will maintain that this oppression is real today and should not be overlooked in light of current and on-going events. 

Before we take this deep dive let’s answer a few questions. What does heritage mean to you? Think of the food that one of your family always prepared that was so special. My great-grandmother made bagna cauda. My family still makes it, but the memories she created at the same time were invaluable. (It’s an Italian dip of garlic, butter and anchovies, with cream that’s a favorite for us.) It’s a taste you would have needed to grow up with to love, so I hear! What are your foods? What are your customs? How do you preserve those wonderful customs of your family? Do you share them with neighbors? Do you have community festivals? We can’t forget the past. We must embrace the good and preserve it. We must learn from the bad and teach the opposite. We are the role models now. If we are not already, we will be the “grands” of generations to come. 

If embracing other cultures is hard for us to accept, perhaps we can use fictional television characters to work on our own approaches to how we can step out of our comfort zone to ensure we take action steps to be inclusive, understanding and non-judgmental. As a “trekkie” (a fan of Star Trek), I have never experienced anyone who has cheered the Borg: fictional cybernetic people who force newcomers to join them with assimilation tactics. Most fans are pro Federation – which accepts diverse cultures and is respectful of each cultures’ beliefs and customs while adhering to a universal doctrine. 

In the United States, our universal doctrine is called law. The law in question now, Haaland v. Brackeen1, oral arguments were heard on November 9, 2022, claims that the Indian Child Welfare Act of 19782 is unconstitutional. 

To understand the breadth of this case let’s begin with the Civilization Fund Act3 passed on March 3, 1819. European settlers looked for ways to “civilize” native Americans since their first arrival to America. In 1819 funding now became available to encourage “benevolent” societies (Catholic and Protestant organizations) to stimulate the civilization process through boarding schools designed to force reading and writing through missionary learnings while denouncing their native religions, culture, and languages. Among these practices, these “benevolents” cut the children’s hair, did not allow personal items, issued uniforms, and forced rituals while engaging in severe punishments to assure compliance. Over one third of the children were taken against their will and wills of their families. In 1973, there was an estimated enrollment of 60,000 native American children. At this point we are still five years away from the Indian Child Welfare Act. 

Today, the U.S. Census Bureau reports there are about 4.5 million Native Americans representing 1.5% of the population, a population that was once 100% of the population. It’s time to reflect again. Think of the times you were the only woman in a room full of men, or the reverse. Think of the time when you were 21 and everyone in the room was over 50 years old. Think of the time when everyone was going to lunch together but the car was full, so you drove alone. Did that make you less important than everyone else? Who included you into the group? Who didn’t? Why? Let’s take action here. It’s a small action, but a nice one. Can we make a concerted effort to invite the only? What simple gestures can we make that “only” feel like a true part of the group? Your example will lead others to do the same. It is really as simple as saying, “I’ll ride with you!”. 

This 1.5% deserves equal consideration to the preservation of heritage, dignity, respect, life, liberty, and the pursuit of happiness. In 1824, the Bureau of Indian Affairs5 was created to witness and participate in the relationship between the Federal Government and Indian tribes. It was motivated by subjugation and assimilation of American Indians and evolved to promote Indian self-determination (ability to choose and control one’s actions and goals without external pressure or influence). This has been a slow evolution as witnessed by 60,000 still interned children in 1973. Finally, congress would take action to stop this in 1978. 

Here is a quick synopsis of The Indian Child Welfare Act of 1978: 

A federal law that governs the removal and out-of-home placement of American Indian children. The law was enacted after the Federal Government recognized that American Indian children (around 35%) were being removed from their homes and communities at a much higher rate than non-Native children. The law established Federal standards for the removal and placement of Native children as well as with termination of parental rights to protect the best interests of Native American children and keep them connected to their families and Tribes. ICWA was enacted after Native American children were systematically removed—often without evidence of abuse or neglect that would be considered grounds for removal—and placed with non-Native families, with the intent to deprive them of their Native family or culture. The law delineates the roles of State and Tribal governments in child welfare cases involving children who are members of or eligible for membership in Federally recognized Tribes. 

Congress established the following order of priorities for placing an Indian child who had to be removed from a home. First, the child should be placed with a member of the child’s extended family, other members of the child’s tribe, or other Indian families. Second, the child could be placed in a foster home approved by the child’s tribe, or third, in a foster home approved by the state or other non-Indian authority. Finally, they could be placed in an institution operated or approved by an Indian tribe.6 

The Indian Child Welfare Act also negated the Indian Adoption Act of 1958 which allowed government officials to remove American Indian children from their parents and tribal communities to be adopted by white families. The Indian Adoption Act was intended to assimilate the native child. While original intentions may be good with these lawsuits, the end results may have dire consequences affecting thousands of people. 

Here is a bit of background: 

Brackeen adoption attempt 

In June 2016, a 10-month-old Navajo boy was placed with Chad and Jennifer Brackeen, a former civil engineer and an anesthesiologist, respectively, after his Navajo mother (who lived in Texas) was found to be using drugs. The father of the child is Cherokee. In 2017 a Texas state court terminated the parental rights of both the biological parents. Under the provisions of the ICWA, the Navajo Nation stepped in and sought to place the child with a Navajo family, but that failed and the Brackeens were allowed to adopt the child. The Brackeens later attempted to adopt the boy’s sister in state court, but the girl’s extended family also sought to take in the girl. The Brackeens then filed suit in federal court to overturn the ICWA on the grounds of racial discrimination This approach would “completely erase […] tribal sovereignty” according to Lauren van Schilfgaarde, a tribal sovereignty advocate.  

State trial court 

The adoption petition for the sister by the Brackeens was heard in state District Court by Judge Alex Kim, who stated that ICWA violated the Texas Constitution. In state court, the Brackeens argued that they had more money than the child’s Navajo relations and would therefore be better for the child. Following the presentation of evidence, the state’s attorney stated that according to state guidelines, the child should be placed with her Navajo family Judge Kim disagreed and placed the child with the Brackeen family but allowed limited visitation with her Navajo family. Both sides were unhappy with portions of the decision and appealed, settlement was subsequently reached, and the state appeal was dismissed. 7 

The Justices are calling many additional topics into question within each of the four cases. I encourage everyone to take a look at each Justice’s opinion, comments and interpretations. Many customs, precedents and terminologies have come into question which may have dramatic results. 

For SCOTUS updates: 

  1. Haaland v. Brackeen – SCOTUSblog 
  2. Cherokee Nation v. Brackeen – SCOTUSblog 
  3. Texas v. Haaland – SCOTUSblog 
  4. Brackeen v. Haaland – SCOTUSblog

It’s time 98.5% of the United States population supported the 1.5% Indigenous population to get justice for all. Let’s not lose sight of the children whose voices are lost here as we take next steps. Let’s reach out to the 1.5% and say, “What can I do to help?”. Don’t presume you know. The 98.5% have presumed for the 1.5% long enough. Find out what specifically is needed from the source. Call your legislators with the facts they need to hear. Remember, if they get 3 calls a day on a topic, that’s a lot! You really can make a difference. Reach out to one person who can share their story firsthand, so you have the words you need. You will now be riding together instead of taking separate cars. For the judge in the original Brackeen case who sought a compromised solution, while no one was completely happy, they tried to bring everyone together. You can, too.