Haaland v. Brackeen: An attack on the rights of Indigenous peoples

By TAYTYN BADGER

“Scattered here and there, under the care and authority of individuals of the higher race, they learned self-support and something of citizenship, and so reached their present place. No other influence or force would have so speedily accomplished such a result… Transfer the savage-born infant to the surroundings of civilization, and he will grow to possess a civilized language and habit.” — Capt. Richard H. Pratt, founder and superintendent of Carlisle Indian Residential School, 1892.

On Nov. 9, 2022, the U.S. Supreme Court will begin hearing oral arguments for the case of Haaland v. Brackeen. On one side are the states of Indiana, Louisiana, and Texas, and seven individuals, six of whom are settlers. On the other, are the governments of the Cherokee, Oneida, and Quinault nations, as well as the Borongo Band of Mission Indians, with the support of 497 tribal governments and 62 Indigenous organizations. In the balance is the 1978 Indian Child Welfare Act (ICWA), outlining safeguards against U.S. governments and child welfare agencies’ discriminatory over-policing of Indigenous families, theft of Indigenous children, and weaponization of “child-welfare” against Indigenous peoples.

The theft of Indigenous children has been a central feature of the North American settler-colonial project for over 150 years. The American Indian Residential School System took hundreds of thousands of Indigenous children from their families, at one point numbering 83% of the school-age American Indian population. This took place in the hope that separation, combined with constant abuse for speaking their languages and practicing their traditions, would serve to eliminate their indigeneity.

At the same time, and continuing today, Indigenous children were systematically taken from their families and adopted out to settlers with the same goal in mind. In 1978, at the time that the ICWA was put into law, as many as 35% of Indigenous children in the land occupied by the United States were removed from their homes by child welfare and adoption agencies, of which 85% were placed with families who were not Indigenous. Parents and families who refused to surrender their children to boarding schools or adoption agencies when ordered by Indian agents faced arrest, or the theft of rations and annuities promised by treaties.

Proponents couched these programs in humanitarian language, though of an intensely racist and settler-centric bent. After campaigns of annihilation and imprisonment of Indigenous peoples on reservations under forced treaties, they claimed that Indigenous people were “naturally” dying out. The only means of “saving” Indigenous individuals was to “civilize them with the idea of taking them into the [settler] nation,” to end the “abridgement of the rights of citizen on account of race, color, or previous condition.” Under the cover of racial equality, Indigenous peoples were robbed of their children, with the excuse that assimilation into the settler population was preferable to remaining with their nation and culture.

However, the purpose of these projects was the elimination of Indigenous peoples. Settler-capitalism is built on and requires ever-growing exploitation and theft of Indigenous land. However, as long as Indigenous peoples continue to exist, they are an obstacle to capitalist occupation and exploitation. For this reason, settler-capitalist states constantly seek to eliminate Indigenous peoples, employing everything from open campaigns of extermination and removal to legislation. The children subjected to these policies were traumatized by abuse and alienated from their peoples and cultures. Their families and communities were scarred by the theft of their children and the damage to their cultures and knowledge transmission caused by the removal of a vital part of society. For these reasons that Indigenous child removal received support from settler-colonial states.

Well aware of these projects, their purpose, and their effects, they faced widespread opposition from Indigenous communities, and their termination was a central demand of the Red Power movement at their height in the 1960s and ’70s. The ICWA was one of the legislative concessions Indigenous struggle forced from the U.S. government over this period, containing two major aspects. First, it outlines exclusive jurisdiction for tribal courts over cases involving Indian children living on reservation, and contains provisions for tribal courts to have the opportunity and right to intervene in child welfare cases affecting members off reservation. Secondly, it mandates active efforts be made to keep Indigenous children with their guardians, or failing that, their extended family, tribe, or another tribe.

Like any other piece of bourgeois law enshrining democratic rights, the ICWA is only a formal, extremely distorted, and incomplete “resolution” to the fight for Indigenous sovereignty. State governments and welfare agencies flout it regularly, as the federal government, with little interest in enforcing or supporting it, looks the other way. As a result, Indigenous children remain several, and sometimes over a dozen times more likely to be removed from their families by government agencies than non-Indigenous children. In two of the three cases consolidated into Haaland v. Brackeen, the settler couple ultimately ended up with custody of the child in question. However, it remains a legal lever by which Indigenous peoples can push back against settler-colonial oppression and child theft.

One of the two primary arguments presented by the plaintiffs is that the ICWA is unconstitutional on the grounds that it discriminates against both non-Indigenous foster and prospective adoptive parents and Indigenous children on the basis of their race. Granting tribal courts jurisdiction over Indigenous children and favoring keeping them in their families and communities, they claim, is a barrier to pursuing the best interests of the child. Indigenous child removal continues to be framed as a humanitarian imperative, just as it was a century and a half ago.

Assertions about Indigenous child removal as being in “the best interests of the child” ignore not only the entire history of Indigenous child removal but the well documented scars it leaves behind. When a child is taken from their home, they are separated from siblings, parents, friends, family, and support networks, limiting their ability to make connections and develop a grounded identity. In the foster system, this is compounded with every new placement.

Adoptees, even those who describe their adopted or foster families positively, often report struggles with identity, attachment and relationships, along with feelings of rejection and low self-worth. The effects are particularly severe for Indigenous children taken by settlers from their communities, as they find themselves alienated from their history and cultural knowledge to be placed in a society built on their elimination. This is all before even considering the negative effects Indigenous child removal has on their parents, families, and nations.

Further, what constitutes “the best interests of the child” and threats to their welfare, outlined by the plaintiffs, courts, government, and welfare services, is firmly rooted in settler-capitalism and serves to systematically target Indigenous people. “The best interests of the child,” they claim, are best met by the idealized bourgeois family, a nuclear family with two parents and children. Other family forms, which may have a long history in an Indigenous culture, are seen as insufficient and dangerous.

High income and access to health care and other services, beyond the reach of many, are seen to make one more qualified for guardianship. Tied to this, Indigenous families targeted by child welfare agencies are overwhelmingly targeted on the basis of “neglect.” However, neglect is overwhelmingly driven by poverty and lack of supports. On reservations and in Indigenous communities this often results from centuries of past and ongoing genocide, oppression, and marginalization at the hands of the settler-capitalism.

One of the arguments made by the Cliffords, two of the plaintiffs, was that the Indigenous child they sought to adopt should be removed from her grandmother because she couldn’t provide proper nutrition, stable housing, or reliable transportation while they, on the other hand, possessed “ample financial resources.” Rather than a symptom of settler-capitalist oppression, or something to be ameliorated to ensure child wellness, poverty is a personal moral failing indicating one is incapable of parenting.

Beyond that, even when compared to settler child-welfare cases with similar backgrounds, Indigenous parents receive more punitive treatment, experiencing higher rates of child removal and termination of parental rights, alongside a lower number of service referrals. Further, Indigenous families are massively over-policed by child-welfare services, sometimes investigated over 10 times as often as whites. Indigenous parents are pathologized and stereotyped as inherently incapable of caring for their own children, justifying their oppression and the theft of Indigenous children.

Despite the documented effects of child removal, the U.S. federal government and child welfare systems overwhelmingly turn to child removal as a first resort. Laws such as the Child in Need of Assistance Act and Adoption and Safe Families Act severely reduce the time frame that parents have to get their children, and fast track the termination of parental rights and adoption. Over $9 billion are spent annually by the federal government on foster and adoption services, compared to tens of millions on prevention and kinship care services meant to keep children with their family.

The other side of the plaintiffs’ argument is based on the “Anti-commandeering Doctrine,” the claim that the federal government may not “commandeer” state officials to adopt or enforce federal laws on the basis of the 10th Amendment. This school of thought emerged in the early 1990s as an excuse to limit federal regulation of waste management. In the years that followed, it has been widely used to eliminate several other types of federal regulation in the interest of capital.

In reality, the questions of “racial equality,” the wellbeing of the child, and “states’ rights” aren’t the question at hand, but a smokescreen. The central theme of the plaintiff’s arguments is that the only polities that should and are qualified to intervene in the lives and “welfare” of Indigenous children are settler states. Indigenous families, tribal governments, and Indigenous peoples who have existed on this land for tens of millennia before settler invasion shouldn’t have a say in the lives of their children. It is no different from deciding that the U.S. government should have sole jurisdiction over any other country’s children, and they only care because of the obstacle it poses to settler-colonial power over Indigenous peoples. Ultimately, what these attacks on the ICWA are is an attempt to undermine what victories Indigenous struggles have won for Indigenous self-determination and sovereignty.

This is evidenced by the presence of Gibson, Dunn & Crutcher LLP as pro-bono representatives of the plaintiffs. An infamously unethical international law firm, they represent dozens international corporations in court. They have represented Chevron, Dole, and Shell in suits brought by Indigenous peoples and farmers throughout Latin America for harm to both the environment and health, including one infamous case in which they turned to a sympathetic U.S. judge to arrest and disbar the lawyer representing the plaintiffs.

On the land occupied by the United States they represent Energy Transfer, the pipeline company behind the Dakota Access Pipeline, and have participated in several cases against Indigenous nations over casinos and control over land and resources. Matthew McGill, representing the Brackeens and normally charging $1000 hourly, made his career attacking Indigenous self-determination and reserve lands in court. This case is a wedge, used by capital to attack Indigenous peoples and sovereignty in order to open the door for further attacks and the invasion and theft of Indigenous land in the future.

Haaland v. Brackeen has come to the Supreme Court in the midst of a barrage of legislative and judicial attacks on the rights won by the past struggles of women and BIPOC and LGBTQ+ people. The overturning of Roe v. Wade in June of this year was only one high-profile example of this assault. Overturning the ICWA would allow renewed attacks on Indigenous peoples, families, and culture, as well as increased weaponization of “child-welfare” against Indigenous individuals and communities who resist settler-capitalist oppression. Further, every victory by capital against democratic rights paves the way for future attacks on the democratic rights. However modest concessions like the ICWA may be, they were won by the struggle of oppressed and working people, and we must fight to defend them.

Photos: (Top) Apache young people at their arrival at the Carlisle Indian School in the 1880s. (Below) Apache young people four months after coming to the school.

 

 

 

Leave a Reply