For those who don’t know, this case (asking the Supreme Court to declare the Indian Child Welfare Act unconstitutional) was nominally about racial discrimination; white Christians didn’t like that Native Americans got precedence for adopting Native children. (Emphasis on “nominally”). Here’s an example of the claims they made: https://www.goldwaterinstitute.org/indian-child-welfare-act/

But the suit was heavily financed by conservative groups and the energy companies, because what it was *really* about was Native sovereignty. It’s well established by treaty and court cases that (federally recognized) Native American tribes are sovereign nations with in the U.S., and as such, have a great deal of autonomy over their citizens and (in recent years) non-natives on the reservation. This doesn’t sit well with many conservatives, and it *really* doesn’t sit well with the energy companies, because it prevents them from pillaging more natural resources. Declaring this act unconstitutional would have opened up a hole which could have been used to destroy Native American communities.

(This post got a bit long, since I decided to toss in why I think the arguments against this law were bogus, and some other examples of *improvements* to Native sovereignty at the end. Keep reading if you’d like.)

And it certainly wouldn’t be the first time. The land I live on right now is on the Swinomish reservation, but unlike many properties on the reservation, we actually own the land, rather than lease it from tribal members (our property taxes, however, due to a relatively recent suit, go to the tribe). How is it we can own a piece of tribal land? Because in 1887 the Dawes Act broke up the reservation system and took away tribal sovereignty. Between then and 1934, millions of acres of tribal land was sold off to white settlers, including the land I live on. It took FDR in 1934, supporting the Indian Reorganization Act, to give back that sovereignty. The attempt to overthrow the Indian Child Welfare Act was actually an attempt to again steal Native land.

If you’ve ever been to La Conner, WA and seen the Swinomish totem pole, that’s why one of the figures on it is FDR.

On the internet, when something bad happens, we say, “It’s always DNS”. In the U.S., it’s always capitalism.

> Indian legislation on the desk of a do-right Congressman
> Now, he don't know much about the issue
> so he picks up the phone and he asks advice from the
> Senator out in Indian country
> A darling of the energy companies who are
> ripping off what's left of the reservations. Huh.
—Buffy Sainte Marie, “Bury My Heart at Wounded Knee”

——

FWIW, here’s my take on the arguments the Goldwater Institute made, although I’m by no means an expert. It’s useful to view this through the lens of talking about what you would do if a child of American citizens was living in a foreign country and their parents died.

* It applies not just to tribal members, but also to children eligible for membership, based on genetics.

Yes, it’s based on being able to be a citizen of a tribal nation. The “genetics” part is very misleading. First, that was a tribal membership restriction imposted by the federal government (do the biology, it’s another way in the long term to destroy native nations through intermarriage taking people out of the citizenship). And it is *not* the eligibility requirement by many nations. Google “blood quantum”. Or see https://www.npr.org/sections/codeswitch/2018/02/09/583987261/so-what-exactly-is-blood-quantum

* Overrides the “best interests of the child”.
No, it’s another factor in determining best interests. Are you really saying that only a non-native can meet those requirements?

* Imposes race-matching
This is just restating the first argument.

* Gives tribal governments power to veto parents.
That’s a hard one, but in general that’s a right we give to nations.

* Bars state agencies from removing kids from abusive homes.
Key word is “state”. Tribal governments can. Or to put it another way. Yeah, China can’t remove the kid from an U.S. home, but the U.S. can.

* Imposes different rules of evidence
So?

* Allows courts to deny cases based on race
Same argument as the first one.

And then this, “All Native American children are citizens of the United States” really spells it out. All Native American children are *dual* citizens. This is just a question of which nation takes precedence. And that’s the crux of the issue. Conservatives don’t believe in sovereign Native nations, even though it’s spelled out in treaties the U.S. signed.

——

CW: Rape/Murder
Since I’m on a long post here, I’ll add another example of recent increased support for sovereignty. Property taxes (at least in Washington State) going to the tribe rather than county is one.

But another one at the federal level is court sovereignty. The tribes have always had the ability to have their own court systems, but they only applied to tribal members. This created a large loophole where a non-native could commit a crime on the reservation and get away with it. State and county police had no jurisdiction. Federal police…when was the last time you saw a federal police officer? Cases would have to go to federal courts. It was (and is) a major problem.

Back in the 70’s in Maine (where I grew up), men would literally say, “Hey, let’s go up to the reservation and rape someone.” And yet another Native woman would be abducted and likely killed. This is still going on—you’ve may have seen the “red hand” symbol and “save our sisters” signs.

In 2013 the Violence Against Women Act enabled tribal courts to have jurisdiction over non-natives who committed acts of domestic violence against Natives. That means that Tribal police could act, and Tribal courts could punish. In 2022 this was expanded to include assault of Tribal justice personnel, child violence, obstruction of justice, sexual violence, sex trafficking, and stalking. (As part of that, it also requires that non-natives living on the reservation be part of the jury pool.)

These are all positive changes. And overthrowing the ICWA was an attempt to reverse them. https://newsie.social/@ABecenti/110548945648747640