Impending Supreme Court decision in Indian child welfare case has tribal leaders on edge

Facing what they consider to be the biggest threat to tribal sovereignty in a generation, Native leaders at a national conference in Prior Lake this week reactivated a task force to defend tribal independence.

An impending Supreme Court ruling challenging the federal Indian Child Welfare Act loomed over this year's annual National Congress of American Indians' (NCAI) Mid Year Convention & Marketplace.

Tribal and U.S. leaders at the conference spoke of the uncertainty and anxiety in Indian Country since the nation's high court took up the Haaland v. Brackeen case last November. The case is a challenge to the 45-year-old Indian Child Welfare Act of 1978, a federal law that many credit with better outcomes for Native youth.

The law was passed in response to the practice of removing Indian children from their homes and placing them in boarding schools or white-family foster homes. It requires child welfare agencies to notify tribes when a Native child is removed from a home, and to prioritize placement with extended family members or other tribal families.

Lawyers for the plaintiffs, including three white families who wanted to adopt Indian children, argue that the law is race-based and violates the Constitution's equal protection guarantee. They argue that it discriminates against non-Native parents looking to adopt, as well as Native children who are victims of neglect or abuse. A Minnesota couple, Danielle and Jason Clifford, is one of three white families at the center of the case.

A decision in the case is expected in the coming days, NCAI President Fawn Sharp told a crowded ballroom at the Mystic Lake Center this week. It is the first time in over a decade that the gathering of more than 800 tribal leaders and NCAI members from around the country is being held in Minnesota. The conference ends Thursday.

Leaders said the court decision could set a precedent for many aspects of longstanding tribal sovereignty — a tribe's ability to govern themselves. Sovereignty was not something the United States gave to tribes, but something that has always existed, said Jacob Jurss, visiting assistant professor of history at Macalester College.

At the conference, Sharp described the uncertainty and fear in the community. "We don't know what's in front of us with the courts," she said. "It's going to be a difficult road ahead for Indian Country."

In the preamble to the Indian Child Welfare Act, Congress acknowledged that tribal children are necessary for the future of tribal governments, said Prof. Angelique EagleWoman, director of Mitchell Hamline's Native American Law and Sovereignty Institute.

"The Native American population in the United States has been decimated through warfare, disease and suicide. The effort to eradicate us, eliminate us, is built into these kinds of legal attacks," EagleWoman said. "Without our children, our nations cannot continue on."

Native children are still disproportionately overrepresented in the foster care system. Minnesota has the highest overrepresentation of any state; 1.7% of children in the state are American Indian or Alaska Natives but they make up more than 25% of children in foster care, according to a 2019 study compiled by the National Indian Child Welfare Association.

NCAI reactivated a joint task force with the Indian Gaming Association, an economic development organization of federally recognized tribes, to respond to threats to tribal sovereignty and treaty rights.

Gaming Association Chair Ernie Stevens recalled how his grandmother survived five boarding schools as a child in several states. Even years later, she wasn't able to talk much about what she experienced, he said.

"That's why we're so protective, because the Indian Child Welfare Act protects our children. They can't take them away, they can't steal them anymore," Stevens said.

U.S. Sen. Tina Smith and Lt. Gov. Peggy Flanagan also spoke at the conference, urging U.S. leaders to uphold tribal sovereignty. The legacy of broken promises and colonial subjugation live on, but so does the progress made in recent years, Smith said.

"We need to relentlessly pursue a relationship of true respect for Native people and tribal sovereignty, fairness, and a government-to-government relationship built on living up to our trust and treaty obligations," Smith said.

Depending on the court's ruling, the case could have broader impacts for years to come, including on tribes' ability to safeguard their natural resources or pass tribal laws, Jurss said. The courts have swung back and forth over the years in how they choose to recognize sovereignty, but the tribes have still managed to hold onto it, he said.

"That bothers states because that takes power away from state governments," Jurss said. "There is certainly a subset of people who are using this for their own political purposes in order to reduce the power of tribes."

While some foster families or organizations may feel they are working in the best interests of children, looking at the longer legal history of abuse faced by Indigenous children shows that cases should be decided within tribal courts where culture and family rehabilitation can be a focus, Jurss said.

Conference speakers noted that the Minnesota Legislature passed updates to the Minnesota Indian Family Preservation Act in March, strengthening and expanding protections for Native American families if the Supreme Court overturns the federal act.

But it's hard to say how that will apply without knowing how broadly the court will rule, Jurss said.

EagleWoman said a constant assault on Native American families will require vigilance from tribal nations and advocates, as many families still work to process the intergenerational trauma of child-removal polices. "The trauma continues in contemporary times," she said.