Part 5: What if We Lost ICWA | Our Sovereignty

The plaintiffs, Brackeens, assert ICWA is an unconstitutional law

PART 5:  Haaland v. Brackeen

By Trace L Hentz, blog editor and adoptee

Am I worried about the ICWA case? Yes. Very.

I am worried that the "Supreme" Court has shown no respect for our inherent sovereign rights.  Just look at history.  This case could rescind the Indian Child Welfare Act of 1978.  I worry the impact on adoptees now and future Native adoptees.  (ICWA allows adoptees to open their adoption records.)  We are called The Stolen Generation and Sixties Scoop for good reason.

We lost our sovereignty when we were adopted out to white families.  We lost everything - language, culture, land, family, ceremonies and our tribal stories.  (Some of us lost our sanity too!)  Swimming pools, college degrees, and white families in fancy houses, cannot replace this.

Sadly, I do not think these Justices actually know what our loss means!

Many years ago in Wisconsin, two tribal chiefs gave talks to new congresspeople on Sovereignty 101- I interviewed them about it and then wrote an article in News from Indian Country.  They explained it used to be feds (the federal government) that dealt with tribes and the feds were keenly aware of sovereign tribal rights and history.  Both chiefs said state lawmakers were not as understanding.  There was also high turn-over in states and many new congressmen don't know state or federal history, even how tribes signed numerous treaties.

The Department of WAR (who authorized killing Indians) morphed eventually into the Department of the Interior.

I looked back at my blog posts: Sovereignty and how it applies to Haaland vs. Brackeen.

As Rebecca Nagle explained: "A host of federal statutes—including on land rights, water rights,
health care, gaming, criminal and civil jurisdiction, and tribal
self-governance—treat Native Americans differently based on this
political classification.  In this light, I fear that the Brackeen lawsuit is the first in a row of dominoes—if the Court strikes down ICWA, everything else could soon go with it."

"Under federal law, tribes and tribal citizens are
not a racial group, but a political one.  Accordingly, ICWA applies only
to Native children who either are enrolled in a federally recognized
tribe or are eligible based on a given tribe’s citizenship requirements," Nagle said. 

And this:

This cultural difference — that a
family’s fitness is determined by its wealth, and that those concerns
should outweigh a child’s connection to their family and heritage — is
essentially why the Indian Child Welfare Act was created in 1978.  The
law recognizes the history of federal policy aimed at breaking up Native
families and mandates that, whenever possible, Native families should
remain together.



Sarah Kastelic, the executive director
of the National Indian Child Welfare Association, said that ICWA
acknowledges important familial and tribal bonds that have long been
disregarded, and that Native ways — such as extended families living
under the same roof — have often been used to show unfitness in child
welfare proceedings. “No matter the picket fences and swimming pools and
things, most of the time, kids want to be with their families,” she
said.



READ: The Native adoption case that could dismantle the Indian Child Welfare Act, explained - Vox

THE INTERIOR AND INDIAN AFFAIRS:

👇This is a bit technical but it is the argument the Justices are deliberating:

"What's Missing in the Brackeen Argument: An Indian Affairs Clause"

OPINION BY Eugene Volokh


|
11.23.2022

I was chatting with Prof. Lorianne Updike Toler
(Northern Illinois), and she mentioned some thoughts of hers on this
subject, based on her recent University of Chicago Law Review article, The Missing Indian Affairs Clause. I encouraged her to write up a blog post, and she kindly passed along the following:

In the November 9th oral argument for Haaland v. Brackeen,
which challenges the constitutionality of the Indian Child Welfare Act,
Justice Amy Coney Barret's question about the impact of overruling
Congress' plenary power over tribes underscores a centuries-old
confusion about federal Indian Affairs.

It's not just the Court that is confused.  Former Volokh Conspiracy posts on point
reveal the deep academic fissures over the historical context of the
Indian Commerce Clause.  Unknown to the Court and most of academe is the
root cause of all the confusion: that the Constitutional Convention
initially forgot (and then later intentionally excluded) the Articles of
Confederation's Indian Affairs Clause in the Constitution.

As I detail in this University of Chicago Law Review article,
Pennsylvanian comparative constitutionalist James Wilson, tasked by the
five-member Committee of Detail to draft the Constitution, initially
checked off "Indian Affairs" to include as a Congressional power, but
then failed to get the power into his final draft.  He was not the only
one to forget.  Although the Convention had commissioned the Committee to
include all the Congressional powers in the Articles of
Confederation (where Indian Affairs featured), Edmund Randolph also
forgot to include the power in his initial sketch of the Constitution.  Odd, considering a Cherokee chief had met with him that summer in
Philadelphia and he was then directly concerned with settler-tribe
disputes on Virginia's frontier as the state's governor.  It was John
Rutledge, the South Carolinian chair of the committee, who remembered,
scrawling the power in the margin of Randolph's sketch. Yet he later
forgot this power in combing through Wilson's final draft, and it was
reported out of the Committee sans (without mentioning) Indian Affairs.

But James Madison remembered.  It was he who suggested Indian Affairs
be inserted back into the Constitution.  This time, the Committee of
Detail intentionally excluded the Clause, instead inserting "Tribes"
into the Commerce Clause.  No one objected.  This despite that at least
three Convention members had just spent their ten-day break (for the
Committee of Detail to meet) fulfilling their congressional duties in
New York.  There, impending tribal wars in Virginia and Georgia's Creek
disputes were discussed.  Presumably, the Convention thought Congress'
previous powers under the Article's Indian Affairs were addressed by the
Indian Commerce Clause and other provisions of the Constitution—such as
the power to declare war and peace and the president's shared Treaty
Power.

What does this mean for the Constitution? Put simply, Congress has no
Indian Affairs power, and therefore no plenary power. Early assertion
of this power was justified under the tripartite powers of Indian
Commerce, War and Treaty Powers. But Congress halted tribal
treaty-making long ago.  If it wants to re-assert power over tribes
beyond the Commerce Clause, the President needs to begin treating with
tribes again.

And what of any residual power? As I propose in my article linked
above, the residue reverts to the sovereign tribes. Tribal sovereignty
is to tribes what federalism is to the states. Powers not reserved by
the Constitution to Congress and the President revert to the tribes.

This would mean that Congress lacked constitutional power to pass
ICWA, however well-intentioned.  ICWA was adopted in an attempt to
prevent Native American erasure by allowing the community to intervene
in adoption and foster cases to ensure tribal children are raised in
Native American families.  ICWA grants the child's tribe exclusive
jurisdiction over custody proceedings and other intervention privileges.  Further, it establishes placement preferences first in favor of any
family members, then the tribe, and then any Native American families
regardless of tribal membership.

Unless related to its Indian Commerce power (and heaven forbid if we
have arrived at treating adoption of babies and children as commerce),
Congress has no power over Native American adoptions. On this basis,
ICWA might be unconstitutional wholesale.  However, to the extent ICWA
respects tribal sovereignty and refers cases to the child's tribe, it
may be constitutional under a structural reading of the Constitution:  The combined intratextual references to tribes as the constitutional
unit of recognition— "tribes" under the Commerce Clause and the
presumption that Indians are not taxed under Art I. sec. 2 of the
Constitution—together with the parallel analog of federalism vis-à-vis
states may permit Congress to proactively proscribe federal and state
deference to tribal power.  But as Congress has no plenary power over
tribes and Native Americans as a people, it cannot specify adoption
placement or other preferences.  The Court should so rule in Brackeen.

👇👇👇This gives me hope:

 

read:

Native American Law and Sovereignty Institute, “Expert Q&A:
Professor EagleWoman Explains Important ICWA Case Heading to Supreme
Court,” March 10, 2022, Mitchell Hamline School of Law, n.d., https://mitchellhamline.edu/native-american-law-and-sovereignty/2022/03/10/expert-qa-professor-eaglewoman-explains-important-icwa-case-heading-to-supreme-court/. 

(to be continued)