Brackeen v. Haaland and the Ongoing Threat to Indigenous Livelihoods

by Sophie Feng

** Editor’s Note: Below is Brackeen v. Haaland and the Ongoing Threat to Indigenous Livelihoods. Sophie Feng received the Wegener Prize for her work on this piece in the spring of 2023. This essay grapples with the anticipations and expectations leading up to the Supreme Court’s decision in Brackeen v. Haaland. You can read more about the decision in Brackeen here, which was released after Feng’s piece was submitted. 

In spring of 2023, the Supreme Court of what is presently referred to as the United States is expected to issue its decision on Brackeen v. Haaland, a case centered around the supposed unconstitutionality of the Indian Child Welfare Act. Many observers have deemed the outcome of this legal action integral for the future of Native American tribal sovereignty in the US, in what is already a contested landscape of alleged Indigenous rights, privileges, and complex governance arrangements. Understanding ICWA and the judicial battle that it has fomented requires a critical analysis of both Brackeen v. Halland’s legal precedent, as well as the sociopolitical history of indigeneity within the US and to the present. As I argue in this essay, Brackeen v. Haaland builds upon a legacy of Western political statecraft, rendered through Supreme Court decisions and federal law, that aims to curtail Indigenous tribal sovereignty, which is viewed as a threat to the white settler state. These measures represent ongoing settler colonialism through attempts to codify Indigenous elimination within formal institutions and uphold settler hegemony.

I begin with a brief history of the law in question and the supposed rationale for its passage. ICWA was ratified in 1978, with the intention to “establish standards for the placement of Indian children in foster or adoptive homes, to prevent the break-up of Indian families, and for other purposes.”1 The federal government implemented the law in an attempt to curb the disproportionately high rates of forced removal of Indigenous children from their households by federal child welfare agencies. These removals, which peaked with up to 80% of Native families being forced to relinquish at least one child, were predicated on assumptions that these families were unfit to raise their children under the standards imposed by the Western state.2 The state deemed inadequate, for instance, arrangements such as care for a child by an extended family member—despite this being a more common standard within Indigenous communities. This practice of child removal constituted an insidious and ongoing project by the Western state to disappear indigeneity, not only by curtailing the continued expression of Indigenous culture and custom, but by attempting to break down the very structures of kinship and family network that promoted its flourishing.

Thus it was that ICWA, while doing little to proactively mend the past abuses of the US federal government, created a minimum standard for the state to follow in negotiations of child welfare cases involving Native families. It established procedures that promoted the placing of Indigenous children within their tribal kinship networks, and in doing so, recognized that tribal sovereignty establishes a unique political status for Indigenous populations within the US—a status which in theory affords to these populations a right to govern themselves through authority of their own civil, political, and legal institutions.3 This affirmation of tribal sovereignty is necessarily coupled with an implicit recognition that federally recognized Native tribes in the US are not mere racial groups, as these groups are not granted the same prerogative of sovereign governance under US federal law.

Yet it is this very question of race upon which the complaint over ICWA, and subsequent arguments heard in Brackeen v. Haaland, hinge upon. The plaintiffs are a non-Native couple who attempted to adopt a child found to be of descent from the Ysleta del Sur Pueblo, a federally recognized tribal entity in El Paso, Texas—circumstances which necessitated that the adoption case fall under the procedural guidelines stipulated by ICWA.4 Though the couple’s adoption was ultimately successful, they have charged in federal court that the difficulties in adopting the child (indeed, the protective guardrails instituted because of ICWA) constituted a violation of their constitutional rights. The plaintiffs allege that ICWA violates the equal protection clause by discriminating against them, as white individuals, through privileging Native claims to adoption.5

The current conservative makeup of the Supreme Court means that there indeed exists a credible threat to ICWA. As Justice Brett Kavanaugh posited during oral arguments held in November of 2022, “I don’t think we should ever allow…Congress to say that white parents should get a preference for white children in adoption or that Latino parents should get a preference for Latino children in adoption proceedings. I don’t think that would be permitted under that principle of equal justice…”6 His conflation of tribal citizenship with race is a problematic assumption given that it negates the unique framework of tribal sovereignty that federally recognized tribes employ in their claims to recognition and governance under the Western settler state. Observers of the case fear that if ICWA were to be ruled unconstitutional on grounds of discrimination, the court’s action would set a precedent poised to deny and abridge other Indigenous rights—such as the right to Native operation of casinos and other gambling enterprises on reservations and other tribal land (a practice which, as Jessica Cattelino has argued, has allowed tribes such as the Seminole to “reinforce the political authority and autonomy of [their] polity”).7

The status of ICWA is thus fraught, and the outcome of Brackeen v. Haaland holds immediate implications for the stability of Indigenous families. It specifically targets what Kyle Whyte terms “collective continuance,” a term that denotes Anishinaabe social resilience, though one that can potentially be applied to other Native epistemologies.8 Whyte asserts that collective continuance arises from “interdependence,” “systems of responsibility,” and “migration.” Of these components, it is systems of responsibility, or networks of mutual relationships undergirding social, political, and economic Native life, which seem most threatened by the potential termination of ICWA. If we take Whyte’s assertion that collective continuance functions as an ecology—given that it describes relational networks between peoples, non-humans, and landscapes—to disrupt family units and cultural endurance through the dissolution of ICWA would be to severely undermine Indigenous responses to change and serve as another form of environmental violence by the settler colonial state.9

As framing the battle over ICWA within Whyte’s work on ecological violence indicates, to consider Brackeen v. Haaland in isolation would be a mistake. As I have already touched upon, the Western settler state’s mandate of Indigenous disappearance has permeated the legal, political, and social spheres, and in many cases, has served as foundational to the creation of their institutions. Having discussed Brackeen v. Haaland in depth, I now want to illuminate its resonance within the historical legal landscape, a site upon which settler-imposed Indigenous identity has been formed. As Robert A. Williams writes, the justices of the Supreme Court have historically operated to enforce and maintain a “white racial dictatorship” by legitimizing racial discrimination and perpetuating a language of Indigenous as savage.10 

These attempts date from the origin of the modern settler state, by which the Declaration of Independence typified Native Americans as a brutal people driven to war and destruction, to the Marshall Court of the early 20th century—which further represented them as incommensurable on grounds of racial inferiority and legal and political subordination.11 Per Williams, the Marshall model (based upon the trio of cases Worcester v. Georgia, Cherokee Nation v. Georgia, and Johnson v. McIntosh) has created an organizing logic of settler supremacy that permeates and is reflected within Supreme Court decision-making to this day.12 While these cases may not be cited by name in Brackeen v. Haaland, they are implicit within conservative justices’ broader attempts to strip Indigenous peoples in the US of their tribal sovereignty and impose the absolute authority of the settler state through the dissolution of protections for Native self-governance such as ICWA.

The organizing logic of settler colonialism, codified into law and legal precedent by the Marshall Model, has seen its influence spread from the highest court in the land into regional loci of power and popular sentiment. As Doug Kiel illuminates, the negotiation of Indigenous rights within the American court system has revealed settler animosity toward expressions of Indigenous political and economic agency. He writes of a dispute between the Oneida Nation in present day Wisconsin and the neighboring, majority-White village of Hobart, whose local government attempted to block Oneida reacquisition of reservation land that had been lost to allotment.13 Though this conflict occurred on a smaller geographic scale and concerned land as property rather than child welfare law, the arguments employed by the proponents of settler dominance in each dispute have direct parallels. As Kiel writes, Hobart’s anti sovereign activists framed their arguments through “the colorblind rhetoric of equality”—a concept that is invoked explicitly by the plaintiffs in Brackeen v. Haaland, who charge that Native peoples, existing as nothing more than racial minorities within a liberal, multicultural state, are not due any unique protections.14 Both conflicts are permeated by assumptions that assertion of Indigenous political rights (whether through restitution of land or authority over kinship structures) pose a direct threat to the hegemony of white settler governance. While the Seventh Circuit court later affirmed local Oneida tribal sovereignty in the related case of Oneida Nation v. Hobart, the fact that the outcome of these disputes is contingent on Western structures of power, both federal and local, means that Indigenous livelihoods and future political security remain under threat.

As should be clear by now, this is settler colonialism writ large. The very fact that Indigenous self-governance is being contested within the settler American court system points to the continued subjugation of Indigenous peoples to formal Western standards and institutions. As the scholars that I have cited demonstrate, the latest attempt to overturn ICWA poses a grave threat to tribal sovereignty, but it is nothing new. Rather, it reflects a long history of American settler jurisprudence that views Indigenous resilience and political capital as a direct threat to the hegemony of the white American nation-state. While Brackeen v. Haaland is yet to be decided, what is evident is that its outcome will not destroy indigeneity, but rather serve to engender further structures of Indigenous resistance.

    1. Indian Child Welfare Act of 1978, 25 U.S.C. § 1214 (1978), https://www.govinfo.gov/content/pkg/STATUTE-92/pdf/STATUTE-92-Pg3069.pdf.
    2. Hayley Negrin, “Native American children are under threat – again,” The Washington Post, November 10, 2022, https://www.washingtonpost.com/made-by-history/2022/11/15/brackeen-haal….
    3. Rebecca Nagle, “The Story of Baby O—and the Case That Could Gut Native Sovereignty,” The Nation, November 28/December 2022, https://www.thenation.com/article/society/icwa-supreme-court-libretti-c….
    4. Nagle, “Story of Baby O.”
    5. Oral arguments of Brackeen v. Haaland, 94. https://www.supremecourt.gov/oral_arguments/argument_transcripts/2022/2…
    6. Oral arguments of Brackeen v. Haaland, 95.
    7. Jessica Cattelino, “From Locke to Slots: Money and the Politics of Indigeneity,” Comparative Studies in Society and History 60, no. 2 (2018): 300.
    8. Kyle Whyte, “Settler Colonialism, Ecology, and Environmental Injustice,” Environment and Society: Advances in Research 9 (2018): 125.
    9. Whyte, “Settler Colonialism,” 131.
    10. Robert A. Williams, “’Signs Taken for Wonders’: The Nineteenth Century Supreme Court and Indian Rights” in Like a Loaded Weapon: The Rehnquist Court, Indian Rights, and the Legal History of Racism in America (Minneapolis: University of Minnesota Press, 2005): 32.
    11. Williams, “Signs Taken for Wonders,” 39, 47.
    12. Williams, “Signs Taken for Wonders,” 48.
    13. Doug Kiel, “Nation v. Municipality: Indigenous Land Recovery, Settler Resentment, and Taxation on the Oneida Reservation,” Native American and Indigenous Studies 6, no. 2 (Fall 2019): 53.
    14. Kiel, “Nation v. Municipality,” 63.