Argued November 9, 2022—Decided June 15, 2023

"Before us, a birth mother, foster and adoptive parents, and the State of Texas challenge the Act on multiple constitutional grounds. They argue that it exceeds federal authority, infringes state sovereignty, and discriminates on the basis of race. The United States, joined by several Indian Tribes, defends the law. The issues are complicated — so for the details, read on. 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" -Justice Barrett

Here are some interesting snippets from the Oral Argument:

"Was not to dictate that an illegitimate infant who has never been a member of an Indian home or culture, and probably never would be, should be removed from its primary cultural heritage and placed in an Indian environment over the express objections of its non-Indian mother."

Thus claiming that ICWA does not apply unless the child was part of an "existing Indian family unit". An uncharitable interpretation of the statute considering nothing in the statue explicitly states this. Despite being an ambiguous and controversial decision founded on “cultural misconceptions and outdated notions”, many states still used this “statutory interpretation to read into the ICWA the requirement that an Indian family be present for the ICWA to apply” (Supplemental Source)

1. How large of a role do you think they had in this case reaching the supreme court?

2. What do you believe their ultimate motivations were in pursuing the end of ICWA considering they already had successfully adopted the native child they targeted?

3. If you had the chance to ask Jennifer and Chad a question about this case, what would it be?

4. Why do think they have avoided public scrutiny in the time since they filed this case? (Avoiding interviews, deleting once-public blogs, etc)

Discuss Below

It was enacted on November 8, 1978. The Statute was created to prevent the removal of American Indian children from their families in custody, foster care and adoption cases. It gives Tribal courts full jurisdiction over Welfare Cases concerning children of tribal over native children domiciled on a reservation and judicial preference over those who are not.

in this case, ICWA does not apply to Brown because he never had custody of the child. The statute, they interpreted, applies only when there is already a parent-child relationship and alternative parties are wanting to adopt.

This was by no means a unanimous decision by the court, as they were split 5-4. (Concurrence: Alito, Roberts, Kennedy, Thomas, and Breyer; Dissent: Sotomayor, Ginsburg, Kagan & Scalia). It is within Sotomayors Dissent in particular where the significance of this case in the larger scheme of ICWA and the very foundations any and all efforts to adress racial inequality.

"...Our precedents...squarely hold that classifications based on Indian tribal membership are not impermissible racial classifications. The majority’s repeated, analytically unnecessary references to the fact that Baby Girl is 3/256 Cherokee by ancestry do nothing to elucidate its intimation that the statute may violate the Equal Protection Clause as applied here...I see no ground for this Court to second-guess the membership requirements of federally recognized Indian tribes, which are independent political entities...I am particularly averse to doing so when the Federal Government requires Indian tribes, as a prerequisite for official recognition, to make “descen[t] from a historical Indian tribe” a condition of membership.

 The majority’s treatment of this issue, in the end, does no more than create a lingering mood of disapprobation of the criteria for membership adopted by the Cherokee Nation that, in turn, make Baby Girl an “Indian child” under the statute. Its hints at lurking constitutional problems are, by its own account, irrelevant to its statutory analysis, and accordingly need not detain us any longer." (Sotomayor Dissent)

Essentially, this case along with the other challenges to ICWA like Haaland v. Brackeen that rely on using a radicalization of native children to further an argument based on the Equal Protection clause of the 14th amendment. The slippery slope of acknowledging and creating precedent based on these "upside down" interpretations pose a dark future for laws that address structural racism and inequality as well as Tribal Soverignty.

-Lakota Peoples' Law Project

While this underlying connection between the Corporate Law firm of Gibson Dunn and their Big Oil Lobbyists - As well as the connection between Goldwater Institute, Conservative groups, and the three States involved in the case - is not instantly apparent from just a simple reading of Haaland v. Brackeen and the other Primary Documents; but it is still an incredibly significant element to consider for a full understanding of the scope of this topic. If you have not done so yet, the linked podcast delves into this conspiracy into great detail and can actually be credited for uncovering crucial information about it themselves. Afterwards, Consider addressing one or more of the following questions:

1. Powerful forces like this nearly successfully used their backhanded, rhetoric-cloaked strategy of using ICWA to unravel Tribal Soverignty + Strength State Jurisdiction for purposes of Oil/Mineral rights + Greater Conservative Power. What other covert avenues could they use to target tribal sovereignty now that Haaland v. Brackeen ruled against them?

2. Do you believe the attack of policies that address structural racism, like ICWA, is more so because of the policy itself or its legal vunerability?

3. Why do you think these connections are not dicussed by the court in Haaland v. Brackeen at any point?

Discuss Below

In 2012-2013 the First Nations Repatriation

Institute (FNRI) conducted an anonymous survey, "American Indian and White Adoptees: Are There

Mental Health Differences?"

There were 336 total respondents, of which 129

identified as American Indian.

Of the 129 American Indian respondents FNRI

analyzed 95 who had also been in contact with

their birth families with the following results:

• Today, American Indian/Alaska Native children remain 3 times more likely than white children to

  be placed in foster care nationwide.

• In South Dakota, American Indian children are 10

  times more likely than white children to be placed

  in foster care, and in Minnesota, they are nearly 22

  times more likely to be placed in foster care.

  • 47 of 95 experienced Emotional Abuse

  • 44 of 95 experienced Physical Abuse

  • 23 of 95 experienced Sexual Abuse

  • 43 of 95 Contemplated or Planned Suicide

  • 20 of 95 Attempted Suicide

  • 51 of 95 had been in therapy for the emotional, physical or sexual abuse

  • 71 of 95 reported depression (CDC reports

    1/10 Americans suffer from depression, this

    study resulted in 84.5% for A.I. Adoptees)

  • 15 of 95 had been hospitalized for mental health conditions

The Documentary itself delves into this and goes over quite a lot more, including a discussion of the past and current challenges to ICWA and a particular investigation into the attorney at the center of much of it: Mark Fiddler. He is the only reason this documentary came into my radar as his connections to both the Baby Girl vs. Adoptive Couple and Haaland v. Brackeen cases are a key piece of information emphasized by the This Land Podcast. Their investigation revealed his widespread connections and tireless efforts to tear down ICWA. This transcript of a clip from the documentary used in the podcast displays a small example of the brazen and racist mentality that drives many of the parties involved in the attacks on ICWA:

I mean, I get tired of Indian people carrying around this victim mentality so that everything that happens with ICWA is like some kind of assault on them. I mean, you want to talk about getting out of a self-defeating narrative, that’s a good one to get rid of, the idea that Indians are victims.

Ultimately, this supplemental source is most beneficial as it projects native voices and experiences about this topic. Something you cant get from reading just court documents.

Despite Haaland v. Brackeen eventually ruling in favor of ICWA, there still remains uncertainty and fear that its possible future destruction is still a possibility. What would the end of ICWA affect the mean for Tribes and the US. Consider following what consequences could emerge for the following:

1. Tribal Soverignty

2. Native Families & Children

3. Oil & Land rights

4. Conservative Power

5. State & Federal Jurisdiction

6. Tribal Casinos

Discuss Below

"...Thus, the Court’s ostensible command has been that even programs intended to benefit minority group members—such as affirmative action—must be subjected to the same constitutional regime as undoubtedly invidious uses of race. Undergirding this approach have been empirical and moral claims of the necessity of consistency in treating all uses of race as inherently suspect.3 Scholars have reinforced this account, contending that the Supreme Court has fundamentally turned away from a contextually variable approach to race to one in which all uses of race are treated as presumptively malign" (Pg. 539)