On Nov. 9, the U.S. Supreme Court heard oral arguments in a case challenging the constitutionality of the 1978 Indian Child Welfare Act (ICWA), which gives a preference for Native American people to foster and adopt Native American children. The lead plaintiffs are a well-to-do white, evangelical Texas couple, Chad and Jennifer Brackeen, who are seeking to adopt a Navaho girl against the wishes of her relatives, who want to adopt her themselves. Among other arguments, the Brackeens allege reverse racism — that the law discriminates against them based on their race in violation of the equality guarantees of the U.S. Constitution.

This case is the most recent chapter in the long history of white people taking Native children from their parents, tribes and cultures. Beginning in the late 19th century, the U.S. government set up an extensive system of boarding schools for Native children designed to assimilate them by eliminating traditional Native American ways of life and replacing them with mainstream American culture. Many were run by Christian missionaries.

The government forced Native families to send their children to these schools, often far from home and for many years. The white people running these schools forbid the children from speaking their Native languages, gave them English names, forced them to cut their hair and give up their traditional clothes, and coercively replaced their own traditional religious practices with Christianity. The schools were run like military schools, where children had to wear uniforms and march in formations, with strict rules and harsh discipline.

The boarding schools taught Native children that their cultures were inferior, with some teachers ridiculing and making fun of the students’ traditions. These lessons taught the children to be ashamed of being Native American. A recent Interior Department report found, “rampant physical, sexual, and emotional abuse; disease; malnourishment; overcrowding; and lack of health care in [the] boarding schools.”

In the 1970s, in response to continuing high rates of public and private agencies removing Native American and Alaska Native children from their homes, the American Indian Movement (AIM) organized to pass ICWA. The law requires states to notify tribes before placing a Native American child up for adoption, and to prioritize placement of children with their extended family, members of their tribe or other Native American families.

ICWA advocates supported the law as a way to preserve Native American families, traditions and cultures, and counter the widespread assumption that white parents are best for all children. They also argued that ICWA protects tribal sovereignty by granting tribal nations “exclusive jurisdiction” over their enrolled members and their lands — removing control from federal or state governments, and private Christian organizations.

The ICWA lawsuit, brought by the Brackeens, the state of Texas, and three other white couples seeking to take Native children from tribes, could be an opening wedge to reduce tribal sovereignty and nationhood, creating opportunities for white people to take tribal land and resources as well as children. So it’s not surprising that the plaintiffs in the current case are represented for free by Gibson Dunn, a high-powered law firm which has represented oil and gas companies, including Energy Transfer and Enbridge responsible for the Dakota Access and Line 3 pipelines. This firm also has clients in the gambling sector. Eroding tribal sovereignty would threaten tribal rights over valuable resources such as mineral rights and gaming operations. https://lakotalaw.org/news/2021-09-17/icwa-sovereignty.

More generally, the Brackeen lawsuit is part of a series of lawsuits brought by conservative legal groups and lawyers to weaponize constitutional equality protections against people of color, to the advantage white people.

Last month in an affirmative action case, the Supreme Court appeared ready to eliminate the ability of schools to promote the admission of historically disadvantaged students, using reasoning similar to that used by the ICWA case plaintiffs. MAGA members of the Court made comments indicating that they believed the Fourteenth Amendment equal protection guarantee — adopted after the Civil War to protect Black people—does not allow any law designed to address longstanding and harmful race discrimination against people of color.

By advocating for “color blind” applications of the law, the Court would allow white people with greater access to resources and power to take money, land and even children from communities of color — all in the name of equality. In the ICWA case, the equality guarantees adopted to protect Black people from the violence and discrimination of white people may now be used by white Christians to continue their long-standing practice of removing Native children from their tribes and cultures — and eradicating their religious practices.

The Brackeen case is a shameful display of the ongoing white supremacist settler colonial project in American society. All people must speak out against this centuries-old genocidal behavior against Native Americans that continues to this day.

Carrie N. Baker is a professor in the Program for the Study of Women and Gender at Smith College and a regular contributor to Ms. Magazine.]]>