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Scott Stevens said that anyone looking for justice from the current United States Supreme Court is alive at the wrong time.

Arguments began Wednesday over the Supreme Court case Brackeen v. Haaland, which could overturn the Indian Child Welfare Act of 1978, a law that puts priority for Indigenous children to be adopted by a blood relative or citizen of an Indigenous tribe rather than non-Indigenous families, to be unconstitutional.

Stevens, a member of the Akwesasne Mohawk Nation and the director of Native American and Indigenous Studies at Syracuse University, said the Supreme Court could look to overturn more protections and liberties of Indigenous communities in the U.S. if the act is ruled unconstitutional.

“That is a full-scale move against Indigenous sovereignty,” Stevens said. “Right now, Indigenous sovereignty is determined by the federal government alone, and that’s based on precedent from the early 19th century. (But) the Supreme Court is not interested in precedent and the way that American law has functioned for over 200 years.”

In its eventual ruling, the Supreme Court will determine whether the ICWA discriminates on the basis of race against non-Indigenous adoptive families. The Supreme Court will also decide whether the act violates the 10th amendment by overstepping the federal government’s role in child placement, which is set as precedent in Sosna v. Iowa.

The lawsuit over the legality of the ICWA was brought up by the states of Texas, Indiana, and Louisiana, as well as several individuals.

Secorrah Benedict, a high school graduate from Big Picture Home High School in Lafayette and a member of the Three Affiliated Tribes in North Dakota, called the potential reversal of the ICWA “disgusting.” Benedict said it’s unfair to Indigenous children to be ripped away from their families and being forced to settle with white families.

Katlyn Arnold, a junior at Big Picture Home and a member of the Onondaga and Oneida nations in Wisconsin, called the potential reversal devastating, but said it’s nothing new to the Indigenous community.

“We’re just repeating history over and over again,” Arnold said. “There’s never a stop, and it just keeps going.”

The ICWA was drafted into Congress and signed into law by then-President Jimmy Carter after long-standing efforts to attack Indigenous identity and sovereignty, Stevens said.

Before passing the ICWA, Stevens said, individual states were allowed to take children from poor Indigenous communities if they were “deemed unsafe” and allow non-Indigenous families to adopt them.

A 1976 study from the Association on American Indian Affairs found that between 25% and 35% of all Indigenous children were being placed in out-of-home care, with 90% of those children being relocated to non-Natives homes and institutions.

“It was just another way of stealing children and giving them to white people,” Stevens said.

Robert Searing, the curator of history at the Onondaga Historical Association, said Brackeen v. Haaland is the culmination of a complex relationship between the Indigenous community and the U.S. government.

Rulings in cases from the early 19th century, such as Worcester v. Georgia and Johnson & Graham’s Lessee v. McIntosh established legal precedent that any negotiations, treaties or agreements can only be made between the federal government and Indigenous tribes, without the interference of individual states or other actors.

Searing said these three cases, referred to by both Searing and Stevens as the “Marshall Trilogy”, became foundational in creating the American constitutional jurisprudence, providing the legal framework of the relationship between the U.S. and Indigenous tribes.

But Searing said he finds it interesting that the Supreme Court is taking this case in the first place, given what would happen if the court overturns centuries of precedence.

“Anytime the Supreme Court overturns long-standing precedent, it raises eyebrows and it raises questions,” Searing said. “When there is a move away from precedent, it tends to expand the scope of rights. Instead, we’ve seeing the opposite with this Supreme Court.”

Both Searing and Stevens said the ruling of Brackeen v. Haaland could lead to similar effects as the decision to overturn Roe v. Wade. If the Supreme Court declares the ICWA to be unconstitutional, it would be a “direct assault” on the constitutional right to privacy, said Searing.

At a recent discussion hosted by the Native Student Program and SU’s Office of Multicultural Affairs about Indigenous issues, SU senior Brandon Silvas, a member of the Onondaga Nation, and other Indigenous students shared similar views.

“If taken away, that could set a precedent for many other things that have been set to protect Native Americans,” Silvas said at the meeting. “It’s sad to think these kids could be torn away from their families and from their cultures.”

Stevens said the issue of Indigenous families fighting to keep their children from non-Indigenous families is a practice that dates back to the late 19th century, when the U.S. sought forced assimilation of Indigenous tribes into American society through boarding schools.

In 1958, the Indian Adoption Project was created by the Bureau of Indian Affairs, which encouraged non-Indigenous families to adopt Indigenous children.

In reality, the project continued the 20th century efforts of removing Indigenous children from Indigenous households. About one in three Indigenous children were separated from their families between 1941 and 1967, according to a 1976 report by the Association on American Indian Affairs.

Searing said the policy was a dark chapter in the history of Indigenous tribes in the U.S.

“The inhumanity of this is almost unknown here in the United States, unfortunately,” Searing said.

Neal Powless, university ombuds at SU and a member of the Onondaga Nation, said the lack of education on Indigenous history and culture is at the heart of the tension between the U.S. and Indigenous tribes.

“How can a person that knows nothing about Indigenous people raise an Indigenous child with an understanding of where they come from?” Powless said. “How is that individual going to really do justice for that child if they themselves don’t have access or understanding of these basic things?”

There is no official timeline on when the Supreme Court will release a final decision on the case as of Wednesday.

Stevens said there’s more than just Indigenous families’ concerns at stake in Brackeen v. Haaland.

“(The plaintiffs) have no dog in this fight,” Stevens said. “I don’t think they care about the child in that case or the family, but they do see that if this was overturned, it would challenge the entire structure of federal Indian law.”

Published on November 10, 2022 at 1:28 am