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Native Concerns

The Future of Tribal Sovereignty Is in the Supreme Court’s Hands

The high court catches a case that’s both dizzyingly complicated and relatively simple: Are tribal governments a legitimate part of the U.S. constitutional order?

Al Drago/Getty Images

It is a grim sign for tribal sovereignty that the Supreme Court will hear oral arguments this week in Haaland v. Brackeen. The justices will consider whether the Indian Child Welfare Act, or ICWA, which has governed adoption proceedings for Native children for the last 44 years, is a constitutional use of Congress’s plenary powers over tribal affairs. Congress passed the law in 1978 to end a series of practices that collectively amounted to cultural genocide: the adoption of Native children by non-Native families who then effectively severed their connections with their tribes and their cultures.

However, Wednesday’s oral arguments are not strictly about the ICWA, as the law is also known. At issue in Brackeen is not just whether one non-Native family or many non-Native families can adopt certain children or whether the tribes should get a say in their eventual placement. Nor is this case entirely about precisely when and how Congress can pass laws that affect tribal sovereignty. The justices will find it impossible to answer these questions without deciding whether tribal governments—and this country’s Indigenous peoples—are a legitimate part of the American constitutional order.

The underlying dispute began when the Brackeens, a white evangelical couple who live in Texas, fostered a Cherokee and Navajo boy. When they sought to formally adopt him, the Navajo Nation intervened in the case under the ICWA, on behalf of a Navajo family that could adopt him instead. One of the ICWA’s main provisions requires state courts in adoption proceedings involving a tribal member or a potential tribal member to prioritize placing that child with a family member, a family of the same tribe, or a family in a different tribe whenever feasible.

The Navajo Nation eventually withdrew from the case involving the boy; the Brackeens are now trying to adopt his half-sister as well. Their lawsuit, backed by multiple Republican-led states and joined by similarly situated non-Native families, aims to overturn the ICWA for imperiling that adoption process. Their central argument is that the ICWA violates the Fourteenth Amendment’s Equal Protection Clause by impermissibly drawing racial distinctions in the adoption process that treat Native families and non-Native families differently. (They also made other arguments against the ICWA, but we’ll come back to those in a minute.)

This position, however, is at odds with the bulk of Indian law jurisprudence. Federal courts, including the Supreme Court, have typically recognized “Indian” in this context as a political classification tied to membership of a tribe instead of a racial grouping defined by blood and ancestry. The justices upheld hiring preferences at the federal Bureau of Indian Affairs for enrolled tribal members in the 1974 case Morton v. Mancari, for example. “As long as the special treatment of Indians can be tied rationally to the fulfillment of Congress’ unique obligation toward Indians, such legislative judgments will not be disturbed,” Justice Harry Blackmun wrote for the court.

Had the Brackeens’ case appeared before most federal judges, it might have ended there. But this lawsuit came before Judge Reed O’Connor, a federal district court judge in Texas with a penchant for making widely criticized rulings that satisfy right-wing political goals. After he ruled that the entire Affordable Care Act was unconstitutional in 2018 because Republicans in Congress had zeroed out the individual mandate penalty, the Supreme Court overruled him in a 7–2 decision that found even some of the court’s most conservative justices rejecting O’Connor’s reasoning. O’Connor has also recently ruled against Covid-19 vaccine mandates for U.S. service members and in favor of general religious exemptions to federal workplace-discrimination laws. The Brackeens and their allies could have scarcely hoped for a more sympathetic judge.

True to form, O’Connor eventually struck down the entire ICWA on Fourteenth Amendment grounds and others. As I noted when I wrote about this case last year, his ruling rested on selective quotations of some Supreme Court precedents, including Mancari, as well as strained readings of other rulings like Rice v. Cayetano, a 2000 case where the court blocked an election for a Hawaiian state agency in which only native Hawaiians could vote. He also ruled against the law on administrative law grounds, concluding that Congress could not “commandeer” state adoption proceedings and that it had delegated too much of its authority to the Interior Department along the way.

Things only got more convoluted when the Fifth Circuit Court of Appeals intervened. A three-judge panel overturned O’Connor’s ruling and restored the status quo. Then the court, sitting as a super panel with all of its judges, reviewed that ruling and splintered on nearly every aspect of the ICWA, over the course of a 325-page decision in April 2021. In its broadest strokes, the Fifth Circuit either rejected or deadlocked on whether the ICWA’s provisions amounted to racial classifications. It also rejected O’Connor’s reasoning on most claims about congressional power but accepted some of the anti-commandeering ones, making a dog’s breakfast of the portions of the law that govern when and how the ICWA can regulate state adoption cases.

All four parties in the cases—the families, the tribes, the states, and the federal government—understandably asked the Supreme Court to intervene last fall, and the justices agreed to do so earlier this year. In their argument brief, the Brackeens and the other families involved in the litigation asked the Supreme Court to strike down the ICWA under the same race-based reasoning that had persuaded O’Connor, but not a majority of the Fifth Circuit, to ditch the law in the first place.

“ICWA creates a separate child-placement scheme for ‘Indian children,’ a broadly defined term that, at root, turns on the child’s biological ancestry,” the families argued. “But ICWA’s adoption regime does not draw political classifications. Its definition of ‘Indian child’ is not limited to enrolled tribal members; it includes children who are not and may never become tribal members but are merely ‘eligible’ to become tribal members. And even its classification of tribal-member children is almost universally based on biology; it operates exclusively in state courts—with no application in tribal courts or on or near tribal lands; and it usurps the historically state-run affair of child placement.”

It’s worth noting here that deciding who counts as Native is not a straightforward question in general. My former colleague Nick Martin wrote in 2020 about the complicated interplay between enrollment, citizenship, and colonialism in the context of Elizabeth Warren’s presidential campaign. There are Native tribes that, for various reasons, are not formally enrolled at the state or federal level. There are also federally recognized tribes with enrolled members who are not all necessarily descended from the Indigenous peoples who lived in North America in 1492.

Against that backdrop, the tribes rejected the Brackeens’ racial framework entirely. “To start, tribal membership is about much more than descent or blood, including political choices by Tribes to extend membership and by individuals to remain members,” they argued in their own brief for the court. “And this court properly has never been distracted by tribal citizenship practices; Tribes are a ‘separate people’ whose ‘right to define [their] own membership’—like that of foreign governments—is ‘central to [their] existence as … independent political communit[ies]’ and ‘unconstrained’ by the Fifth and the Fourteenth Amendments.”

The Brackeens also drew attention to an ICWA provision that applies to children who are “eligible for membership in an Indian tribe and [are] the biological child[ren] of a member,” arguing that ancestry was a proxy for race. But the tribes countered that this was not racial in nature either. “It applies only when Tribes have made political choices to make children membership-eligible; when parents have made political choices to maintain membership; and when the United States has made political choices to maintain government-to-government relationships,” they noted, citing a case where the ICWA did not apply because a parent had decided against tribal membership.

Much of the focus in this case will be on Justice Neil Gorsuch, who is the court’s most outspoken member on matters of tribal sovereignty. In 2020, he wrote the majority opinion in McGirt v. Oklahoma, which recognized that reservations in eastern Oklahoma had never been formally disestablished and that roughly half of the state was still Indian country. “Unlawful acts, performed long enough and with sufficient vigor, are never enough to amend the law,” Gorsuch declared. “To hold otherwise would be to elevate the most brazen and longstanding injustices over the law, both rewarding wrong and failing those in the right.”

Court watchers have advanced myriad theories as to why Gorsuch, more than any other justice, appears to have taken such an interest in this issue. Some have attributed it to his service on the Tenth Circuit Court of Appeals, which spans most of the Mountain West and hears a great many Indian law cases. Others have credited it to the fact that he is currently the court’s only justice who hails from west of the Mississippi River. My own theory, based on his writings on the matter, is that Gorsuch thinks tribal governments are legitimate parts of the American constitutional system, with legitimate rights and legitimate powers, while most of his predecessors (and perhaps even some current colleagues) see them as either historical relics to be ignored or as legal obstacles to be overcome.

After all, the Supreme Court’s track record when it comes to respecting tribal sovereignty is not great, to put it mildly. The five-justice McGirt majority vanished from the court when Ruth Bader Ginsburg died a few months after the ruling was handed down. When Oklahoma sought to curb the landmark ruling’s impact in Oklahoma v. Castro-Huerta during last year’s term, the Supreme Court overturned two centuries of precedent and practice on whether states can prosecute crimes involving tribal members on tribal lands. Gorsuch’s dissent was among the most scathing fusillades between the justices in the court’s recent history. He denounced Justice Brett Kavanaugh’s majority opinion at various points as “ahistorical,” “embarrassing,” and “unattached to any colorable legal authority,” and declared it to be part of the court’s “anticanon” of universally reviled rulings like Dred Scott v. Sandford and Korematsu v. United States.

Gorsuch’s colleagues on the right might be receptive to the race-based claims made by the Brackeens and their conservative allies, especially during a term where the court is already taking aim at affirmative action in college admissions and the Voting Rights Act’s limits on racial gerrymandering. At the same time, if they do not wish to upend a central pillar of Indian law this term, there are other grounds to rule in the families’ favor that would be limited to the ICWA itself. The Fifth Circuit largely agreed with O’Connor’s ruling that the ICWA violated the Tenth Amendment by “commandeering” state adoption proceedings. If upheld, that would wreck much of the ICWA’s structure by removing its ability to preempt state adoption laws without directly addressing the broader legal aspects of tribal sovereignty.

Even that, however, could be devastating for the tribes. In its own brief, the Justice Department noted that lawmakers passed the ICWA to halt an existential threat to the tribes’ future. “Congress further found that the breakup of Indian families harmed not only Indian children and their parents, but also their tribes,” the department recounted, quoting from court rulings and legislative findings. “As one tribal leader told Congress, tribes cannot long survive as ‘self-governing’ communities if they cannot pass their ‘heritage’ on to the next generation. Congress thus recognized that, by severing that connection to future generations, the breakup of Indian families was threatening ‘the continued existence and integrity of Indian tribes.’”

For that reason, Haaland v. Brackeen is both a dizzyingly complicated case and a relatively simple one. The fractured lower-court rulings and the myriad provisions at question in the ICWA mean that the parties and the justices will likely spend hours poring over minute legislative details. At its heart, however, the ultimate questions it raises for the justices are fairly straightforward. Do Native tribes have the sovereign right to exist and to keep existing? Can Congress pass laws to help ensure that they do? If the answers seem easy, then so will the result.