Counterpoint: Tribal rights, futures must not be plundered again

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On Nov. 9, 2022 the U.S. Supreme Court heard oral arguments in a case that has the potential to gut the protections of the Indian Child Welfare Act (ICWA). Haaland v. Brackeen comes at a fraught time in Indian Country, with opponents increasingly and aggressively using the courts to diminish nearly all aspects of tribal sovereignty.

Brackeen is a consolidation of three different cases involving non-Native families seeking to adopt Indigenous children. The families argue that the ICWA's mandate placing Indigenous children within Native communities discriminates against them based on a racial test that violates the Equal Protection Clause.

Further, the plaintiffs' claim that the ICWA is an unconstitutional overreach of the federal government on a state's right to direct family welfare cases.

"States shouldn't deny equal treatment for Indian kids" (Opinion Exchange, Feb. 22) echoes the distortions of the plaintiffs' core arguments. The ICWA does not contain a race-based test that violates the 14th Amendment. Rather, the law recognizes that tribes are political sovereigns that have legal rights to determine their own citizenship. When Congress passed the ICWA in 1978, it acknowledged the law was in response to the harmful and discriminatory practices of state-run welfare agencies, which have been well documented.

Furthermore, the ICWA is not an incursion into states' rights, but rather a legislative recognition of the federal government's historical relationship to Native American tribes. The law maintains protections for Indigenous children and affirms the responsibility for those protections properly rests with tribal nations and tribal courts.

In the United States, there are 574 federally recognized Native American tribes and each one is a sovereign nation. This recognition is a foundational tenet of federal Indian law embedded in Article 1, Section 8 of the Constitution, which empowers the federal government to engage in relations with "Indian tribes."

Tribal political sovereignty existed before European settlers stepped foot on North American soil. Following the American Revolution, the new government was in a relatively weak position and sought to make treaties that preserved peaceful relations with tribal nations. By the turn of the 19th century, federal policy shifted toward expanding the settler-colonial project. The goal was to eliminate Indigenous populations and settle non-Native communities on their land.

This ongoing process has taken the form of wars and massacres from the Pequot War to Wounded Knee. It involved ethnic cleansing through forced removals like the Trail of Tears and the Potawatomi Trail of Death. And it enacted what amounts to cultural genocide with forced assimilation policies including Native American boarding schools and state-sanctioned removal of children from Indigenous communities. Such systematic actions fall under the United Nations definitions of genocide.

If Indigenous identity appears murky, it's because the federal government has attempted to police the identity of Indigenous people throughout its relations with Native nations. This has gone as far as attempting to actually measure the percentage of people's Native blood in what is known as "blood quantum." In order to determine this percentage, the federal government, in some cases, employed pseudoscientific and racist methods including skull measurements and skin pigmentation cards. But tribes, as political sovereigns, determine who belongs to their nations.

Historically, many tribes recognized citizenship based on an individual's ancestry and relationships to the nation. With tribal sovereignty comes the ability to operate and regulate businesses, foster cultural revitalization and education efforts, and maintain their own judicial systems.

The attacks on the ICWA are not about protecting Native children. The ICWA recognizes the bedrock principle of tribal sovereignty and the self-determination that comes along with it. That is why the law is under attack.

The plaintiffs' arguments in Haaland v. Brackeen willfully ignore this history in favor of using Indigenous children as political pawns. Should the Supreme Court opt to strike down the ICWA, we could see a reversion to the practices of the mid-20th century. As the American Historical Association's amicus brief in support of the ICWA points out, that was when state governments separated over 100,000 of an estimated 400,000 Native children from their parents and placed them in homes with no political, cultural or linguistic connection to their nations.

Strengthening Minnesota's own version of the ICWA through HF 1071 would be a positive step, but upholding a constitutional law that fulfills the federal government's responsibility to tribes is even more important.

The legal challenge to the ICWA demonstrates that history does not on its own move steadily in the direction of justice. If the plaintiffs in this case are successful, the result will not only decimate the ability for Indigenous children to stay within their tribal communities but also open the floodgates for more legal challenges to nearly all aspects of tribal sovereignty.

The loss of tribal sovereignty is an existential crisis, one that potentially returns us to a time when Native children, who are the future of their tribes, will once again be plundered from their communities.

Jacob Jurss is a visiting assistant professor of Indigenous history at Macalester College.