[“We won on every single issue and [the petitioners law firm] is
not taking home anything. Theyre not winning on a 10th amendment
issue. Theyre not winning on Indian as a race-based classification.
Theyre not winning on anything."]
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MAJOR SCOTUS VICTORY FOR NATIVE AMERICAN RIGHTS  
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Kolby KickingWoman
June 15, 2023
ICT [[link removed]]

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_ “We won on every single issue and [the petitioners' law firm] is
not taking home anything. They're not winning on a 10th amendment
issue. They're not winning on Indian as a race-based classification.
They're not winning on anything." _

The U.S. Supreme Court heard oral arguments Wednesday, Nov. 9, 2022,
in Brackeen v. Haaland, a case that will decide if the Indian Child
Welfare Act is constitutional. Outside the Supreme Court Building,
ICWA supporters were on site in numbers, Photo by Jourdan
Bennett-Begaye, ICT

 

The Supreme Court handed down a major decision Thursday in
the _Haaland v. Brackeen_ case, affirming the constitutionality of
the Indian Child Welfare Act by a 7-2 vote.

Justices Clarence Thomas and Samuel Alito were the lone justices to
dissent.

The decision represents a major victory for federal Indian law and
tribes across the nation.

In the opinion, authored by Justice Amy Coney Barrett, said the court
“declines to disturb the Fifth Circuit’s conclusion that ICWA is
consistent with” Congress’s authority under the Constitution in
Article I.

“The United States, joined by several Indian Tribes, defends the
law,” read the opinion. “But the bottom line is that we reject all
of petitioners’ challenges to the statute, some on the merits and
others for lack of standing.” Challengers cited that ICWA was
against “federal authority, infringes state sovereignty, and
discriminates on the basis of race.”

Justice Neil Gorsuch, the justice with extensive federal Indian law
knowledge and experience of all the justices, wrote in support:

"Often, Native American Tribes have come to this Court seeking justice
only to leave with bowed heads and empty hands. But that is not
because this Court has no justice to offer them. Our Constitution
reserves for the Tribes a place—an enduring place—in the structure
of American life. It promises them sovereignty for as long as they
wish to keep it. And it secures that promise by divesting States of
authority over Indian affairs and by giving the federal government
certain significant (but limited and enumerated) powers aimed at
building a lasting peace.

“In adopting the Indian Child Welfare Act, Congress exercised that
lawful authority to secure the right of Indian parents to raise their
families as they please; the right of Indian children to grow in their
culture; and the right of Indian communities to resist fading into the
twilight of history. All of that is in keeping with the
Constitution’s original design.”

_Haaland v. Brackeen_ wasn’t the only Supreme Court case affecting
Native people directly. The court also released a decisio
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regarding _Lac Du Flambeau Band of Lake Superior Chippewa Indians et.
al. v. Coughlin_. 

(RELATED: SUPREME COURT: TRIBAL SOVEREIGN IMMUNITY DOESN’T EXTEND
TO BANKRUPTCY COURT
[[link removed]])

The third federal Indian law case this term, _Arizona v. Navajo
Nation_
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has yet to be decided by the end of the month along with 22 other
cases.

“For purposes of comparison, between June 13, 2022, and the last
opinion day of the 2021-22 term (June 30, 2022), the court issued 29
decisions,” wrote former editor and reporter of SCOTUSblog Amy L.
Howe
[[link removed]]. 

President Joe Biden also weighed in shortly after the _Haaland v.
Brackeen _ruling was released. He said ICWA is a vital law he is
proud to support and stands with tribes.

The ruling keeps in place a vital law that protects tribal sovereignty
and Native children, Biden said in a statement.

“Our Nation’s painful history looms large over today’s decision.
In the not-so-distant past, Native children were stolen from the arms
of the people who loved them. They were sent to boarding schools or to
be raised by non-Indian families—all with the aim of erasing who
they are as Native people and tribal citizens,” the statement
[[link removed]] reads.
“These were acts of unspeakable cruelty that affected generations of
Native children and threatened the very survival of Tribal Nations.
The Indian Child Welfare Act was our Nation’s promise: never
again.”

Interior Secretary Deb Haaland, Laguna Pueblo, called the decision
“a welcome affirmation across Indian Country of what presidents and
congressional majorities on both sides of the aisle have recognized
for the past four decades.”

“For nearly two centuries, federal policies promoted the forced
removal of Indian children from their families and communities through
boarding schools, foster care, and adoption. Those policies were a
targeted attack on the existence of Tribes, and they inflicted trauma
on children, families and communities that people continue to feel
today.”

Angelique EagleWoman, Sisseton Wahpeton Oyate (Dakota), described the
decision as a “full circle moment” for Haaland. EagleWoman is a
professor of law as well as the director of Native American Law &
Sovereignty Institute at Mitchell Hamline School of Law.

“How wonderful it is to see Secretary of Interior Deb Haaland,
Laguna Pueblo, have her name on a case, 7 to 2, that upholds the
Indian Child Welfare Act,” she said. “I'm sure she breathed a huge
sigh of relief to have her name in history in this manner.”

EagleWoman added that Gorsuch heavily relied on the investigation
Haaland started through the Bureau of Indian Affairs into boarding
schools to give historical context in his concurring opinion.

“We have a full circle moment here. We have cultural affirmation, we
have true justice,” EagleWoman said. “So there's a lot of good
here.”

Tribes, Native organizations, advocates and allies cheered for the
decision reposting sentiments like "tribal sovereignty wins" or "ICWA
stands!"

Mary Kathryn Nagle, Cherokee, is a Native rights attorney and Counsel
to the National Indigenous Women's Resource Center for which she filed
an amicus brief on behalf of in the case.

She emphasized what the day means to Indian Country, “we just could
not have gotten better news. This is an incredible, incredible
victory.”

“It's definitely a day for Indian Country to celebrate,” Nagle
told ICT.

Like many, she was still reading through the 133 page opinion as the
news broke Thursday morning. She noted that there will be a number of
Native attorneys and federal Indian law lawyers who will comb through
the court’s opinion.

The first thing she said that jumped out at her was the overwhelming
win for tribes.

“Just the fact that we won on every single issue and Gibson Dunn
(the law firm representing the petitioners’) is not taking home
anything,” Nagle said. “They're not winning on a 10th amendment
issue. They're not winning on Indian as a race-based classification.
They're not winning on anything is huge.”

The Indian Child Welfare Act was enacted in 1978 and its purpose is
“...to protect the best interest of Indian Children and to promote
the stability and security of Indian tribes and families by the
establishment of minimum Federal standards for the removal of Indian
children and placement of such children in homes which will reflect
the unique values of Indian culture…," the Bureau of Indian Affairs
website states [[link removed]].

For years, ICWA has been long seen as the “gold standard” for
child welfare policy.

The Protect ICWA campaign, which includes the National Indian Child
Welfare Association, the National Congress of American Indians, Native
American Rights Fund and the Association of American Indian Affairs,
said they are all “overcome with joy” that ICWA has been upheld.

“One thing is certain: ICWA is crucial for the safety and well-being
of Native children and families and the future of Native peoples and
Tribal Nations,” the campaign said in a statement. “The positive
impact of today’s decision will be felt across generations.”

The campaign said they will give a deeper analysis Thursday afternoon
after a legal review.

The ruling is an affirmation of rule of law and the constitutional
principles of the relationship between Congress and tribes, Cherokee
Nation Principal Chief Chuck Hoskin, Jr., Morongo Band of Mission
Indians Chairman Charles Martin, Oneida Nation Chairman Tehassi Hill
and Quinault Indian Nation President Guy Capoeman said in a statement.

 

They hope that this decision will slow the “political attacks”
aimed at diminishing tribal sovereignty.

“By ruling on the side of children’s health and safety, the U.S.
constitution, and centuries of precedent, the justices have landed on
the right side of history. With these latest political attacks on ICWA
now behind us, we hope we can move forward on focusing on what is best
for our children,” the statement says.

Native members of Congress, Tom Cole, Chickasaw, and Sharice Davids,
Ho-Chunk, shared a joint statement as co-chairs of the Congressional
Native American Caucus. Echoing many, they said ICWA has protected
vulnerable Native children since it was enacted and applauded the
Supreme Court.

“This landmark decision rightly upholds protections for Native
children and reaffirms the sovereign rights of tribal governments,"
their statement reads. "We applaud the Supreme Court in rejecting
these challenges and standing with Native American children and their
right to remain in their own cultures.”

Indigenous peoples woke up to the news as early as 6:07 a.m. in
Alaska. Social media reactions range from ICWA supporters saying
they’re “really emotional” or “grateful for today.”

Charitie Ropati, Yup’ik and Samoan, wrote on Twitter
[[link removed]],
“Celebrate today, celebrate indigenous youth joy.”

Medical student and Forbes contributor Victor Lopez-Carmen, Hunkpati
Dakota and Yaqui, gave kudos to the lawyers involved. “Just wanna
throw a big party for all the Native lawyers who bodied this. Wow.
Y’all really are incredible,” Lopez-Carmen wrote on social media
[[link removed]]. 

In an April 2021 decision, the U.S. Court of Appeals for the Fifth
Circuit upheld certain sections of ICWA and flagged constitutional
concerns about others, prompting appeals on both sides. The U.S.
Supreme Court granted petitions to review the Fifth Circuit’s
decision and heard the case last November. Congressional members, 87
in total, filed a bipartisan, bicameral amicus brief defending
ICWA’s constitutionality in _Haaland v. Brackeen_.

Oral arguments on the landmark case took place in November. Indigenous
people from around the country traveled to Washington, D.C., for the
hearing.

Kimberly Jump-CrazyBear, Osage and Oglala Lakota, was one of many who
showed up to show support for the Indian Child Welfare Act.

“I’m just here on behalf of all of you who can’t be here today.
To help lend my voice,” she told _ICT_ before the oral arguments
for _Haaland v. Brackeen_ began. “Without our children, we don’t
have a people anymore.”

While it is a day for celebration, Nagle said it is also important for
tribes to stay vigilant and to support and heal one another after
enduring the trauma of this long legal fight.

“They're gonna probably try to find a different way to attack us.
And so we have to celebrate, then we also have to kind of come back
together and understand where the next attack is going to come from.
And that's unfortunate, but I think that's just what it means to be
Indigenous in the United States. So, but I think the first thing to do
is to really celebrate because this is, I think, next to McGirt, the
most incredible decision, victory we've gotten in the Supreme Court
ever.”

_Kolby KickingWoman, Blackfeet/A'aniih is a reporter/producer for
Indian Country Today. He is from the great state of Montana and
currently reports for the Washington Bureau. For hot sports takes and
too many Lakers tweets, follow him on Twitter - @KDKW_406
[[link removed]]. Email
- [email protected]
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