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Opinion. Last Thursday will be one of those memorable days for many Native Americans, myself included. It was similar to those days when you remember exactly where you were the moment when something monumental happened — when the Challenger spacecraft exploded shortly after takeoff, for example, or, for some of us elders, when President John F. Kennedy was assassinated in Dallas.
I will remember where I was when I heard the news of the much anticipated U.S. Supreme Court Brackeen v. Haaland decision. I was in Detroit on the 70th floor of the Renaissance Center with our staff reporter Neely Bardwell in the Marriot's presidential suite, getting ready to interview U.S. Census Bureau Director Robert J. Santos. My phone flashed. It was my business partner, Brian Edwards, texting me two monumental words: “ICWA stands.”
As I took in those words and the panoramic backdrop of the Motor City, I knew that this morning would be one I would always remember. It was one of those incredible moments we experience in life.
I wasn’t alone. My phone rang and buzzed as the significance of the momentous decision reverberated across Indian Country. This was, in the eyes of many tribal leaders, a lawsuit that was the biggest threat to tribal sovereignty in a generation.
Over the next 45 minutes or so, I conducted my interview with Census Director Santos, who is a remarkable story in his own right. After we wrapped up, I opened my email: It was filled with statements from tribal leaders and emails from everyday ordinary Native folks. The overwhelming emotions in virtually all of the messages were gratitude and relief.
A week before at the National Congress of American Indians mid-year convention at the Mystic Lake Casino Resort — on the homelands of the Shakopee Mdewakanton Sioux Community —I had felt the apprehension and fear in the atmosphere. Tribal leaders discussed the threat an unfavorable ruling would be to tribal sovereignty.
Late last year, the Native American Rights Fund Executive John Echohawk (Pawnee) reacted to the oral argument hearing made in November at the Supreme Court in an interview with me: “We're all really very concerned, because their basic argument is that Congress did not have authority to pass the Indian Child Welfare Act. And if somehow that limits the authority of Congress to enact legislation relating to tribes, then we're concerned that it could impact other laws that Congress has passed to help tribes as well. It could really jeopardize all of federal Indian law and tribal sovereignty.”
So, the threat was real.
Funded in part by Goldwater Institute, a right-wing think tank that believes it knows better than tribes about what is good for Native American children, Brackeen v. Haaland attempted to dismantle the constitutionality of the Indian Child Welfare Act (ICWA) of 1978. ICWA was enacted by Congress and signed into law by President Jimmy Carter to prevent the unwarranted removal of Indian children from their families and tribal communities in welfare and adoption court proceedings.
Brackeen v. Haaland was full of complexities as demonstrated throughout the 133-page decision released on Thursday. In addition to the question of whether Congress had the authority to enact the ICWA, threaded throughout the case was the question of whether American Indians and Alaska Natives are considered a race or a political entity because tribes are sovereign nations.
The threat to taking the right of Native American families or tribes to decide what is best for their children was real.
Justice Neil Gorsuch, who has proven to be a defender of Indian law and sovereignty since joining the court, did not disappoint on Thursday. He joined with other justices in the 7-2 decision, and wrote a concurring opinion that defended ICWA strongly.
“The Indian Child Welfare Act did not emerge from a vacuum,” Gorsuch wrote. “It came as a direct response to the mass removal of Indian children from their families during the 1950s, 1960s, and 1970s by state officials and private parties. That practice, in turn, was only the latest iteration of a much older policy of removing Indian children from their families—one initially spearheaded by federal officials with the aid of their state counterparts nearly 150 years ago. In all its many forms, the dissolution of the Indian family has had devastating effects on children and parents alike. It has also presented an existential threat to the continued vitality of Tribes—something many federal and state officials over the years saw as a feature, not as a flaw. This is the story of ICWA. And with this story, it pays to start at the beginning.”
Gorsuch puts into perspective that most Americans never ponder about Native Americans. Our children have been the fodder of a system that sought to destroy the fabric of families for the better part of two centuries. That system has left a lasting legacy of historical trauma.
The Brackeen v. Haaland ruling was a huge and significant victory for those 500 plus tribes, 60 Native American organizations, and our allies that defended our right to raise our children. More than that, it was a victory for our children, our culture and our future.
Some two hours after SCOTUS issued its opinion on Thursday, my business partner texted me again. It was a statement from President Joe Biden that said: “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. 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.”
I teared up. It was another moment in a day full of them. I will remember them all for a very long time.
Thayék gde nwéndëmen - We are all related.
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