By Sarah Rose Harper and Jesse Phelps
The Threat Summarized
If the Supreme Court overturns the Indian Child Welfare Act (ICWA) — a federal law that keeps Native children with Native families — tribal sovereignty could soon be a thing of the past in the U.S. Should the justices rule in the plaintiffs’ favor in the case of Brackeen v. Haaland, we could quickly see a return to blatant, pre-1978 genocidal practices — when Native babies were legally stripped of their families, culture, and identities.
It’s critical that every one of us take immediate action. Before you do anything else today, sign our petition telling President Biden and the Department of Justice to defend ICWA, Secretary Haaland, and tribal sovereignty with every available means.
In this landmark case, the Brackeens — the white, adoptive parents of a Diné child in Texas — seek to overturn ICWA by claiming reverse racism. Joined by co-defendants including the states of Texas, Ohio, Louisiana, and Indiana, they’re being represented pro bono by Gibson Dunn, a high-powered law firm which also counts oil companies Energy Transfer and Enbridge, responsible for the Dakota Access and Line 3 pipelines, among its clients. This lawsuit is the latest attempt by pro-fossil fuel forces to eliminate federal oversight of racist state policies, continue the centuries-long genocide of America’s Native populations, and make outrageous sums of money for energy magnates, gaming speculators, and fossil fuel lawyers. The story below may seem unbelievable, but it is 100 percent true.
Key Points to Take Away
Big Oil's lawyers, Texas, and three other states with very few Native inhabitants are attacking the Indian Child Welfare Act (ICWA).
The Texas Attorney General is asking the Supreme Court to declare ICWA unconstitutional.
The Plaintiffs argue that tribal affiliations should be considered racial, rather than political, designations.
Overturning ICWA could be the first legal domino in a broader attack on tribal rights and sovereignty.
The Indian Child Welfare Act Protects Native Kids, Cultures, and Sovereignty
The Indian Child Welfare Act (ICWA) is the federal law that prioritizes Native care for Native children, which is critical to maintaining cultural connections, family ties, and kinship practices that have been intact for thousands of years. ICWA, signed into law in 1978, was conceived as a means of slowing the genocidal policies enacted by the United States and Canada, which included the forced placement of Indigenous children in Indian boarding schools for more than a century.
These schools were cruel institutions designed to enact genocide by separating the children from their cultural identities and severing ties with their families and communities. Thousands of Native and First Nations children died at these schools, where physical, mental, and sexual abuse were commonplace. After the era of boarding schools, during the Sixties Scoop, it became common practice for child welfare workers — hiding behind state law — to kidnap Native children and place them with white, Christian families as adoptees. This lasted well past the 1960s, and ICWA was ultimately passed to protect Native children and keep them with their kin.
Today, the State of Texas (among other plaintiffs) is suing the federal government in an attempt to overturn ICWA. If the plaintiffs are successful, this case will strike down the federal law that prioritizes Native care for Native children. But that’s not even the worst of it. The case would also open a door for the destruction of tribal sovereignty in the United States. The case — Brackeen v. Haaland — is slated for judgment by a majority conservative Supreme Court soon. It specifically names the defendant as U.S. Secretary of the Interior Deb Haaland — a Laguna Pueblo woman and the first Native person to hold a Cabinet secretary position in U.S. history.
The plaintiffs are essentially alleging racism against white people, arguing that ICWA violates the U.S. Constitution’s Equal Protection Clause. Tribal nations — backed by a prior Supreme Court decision — say that Native status is not a racial designation, but a political one.
This case poses an extreme and imminent danger to Native Peoples across the U.S. If the high court accepts the plaintiffs’ argument that tribal political designations should not count in custody cases, “Native” and “Indian” designations could then be dissolved entirely. That decision would position ICWA as the first domino to fall, potentially leading to the erosion — or total erasure — of Native rights in the only homelands Indigenous North Americans have ever known.
Lakota Law Co-Director and Lead Counsel Chase Iron Eyes breaks down the Brackeen v. Haaland attack on ICWA and tribal sovereignty on a recent episode of Cut to the Chase.
A Big Oil Law Firm Is Attacking The Indian Child Welfare Act — Pro Bono
Under no circumstance is it acceptable to allow high-powered lawyers close to the fossil fuel industry to use Native babies as pawns in their game to kill federal oversight, line the pockets of oil barons, and enact further genocide against America’s first inhabitants.
"Should the legal arguments of these plaintiffs be accepted by the Supreme Court, it becomes open season on everything from Indian gaming revenues to actual tribal designations, governments, and reservations,” said Chase Iron Eyes, Lakota People’s Law Project Co-Director and Lead Counsel. “It is no accident that the plaintiffs are represented by Gibson Dunn, lawyers who also represent our adversaries, fossil fuel conglomerates Energy Transfer Partners and Enbridge, responsible for the Dakota Access and Line 3 pipelines. For these attorneys, this case isn’t so much about Native children, as it is about nationally-sanctioned genocide of Native people. To them, we represent an inconvenience, and they are still trying to ‘kill the Indian,’ as federal policy has tried to do since the founding of the United States.”
While the name Gibson Dunn may not be widely known, this law firm is one of the world’s most powerful. Rather than offer its pro bono services in child custody cases, as it did here, it usually represents big industry clients such as Chevron, Shell, Amazon, and Walmart, and it’s known for its “scorched earth” approach to litigation. Notably, around the same time the firm came aboard the Brackeen cause, the Texas Attorney General decided to intervene. That’s akin to having the state governor intervene in a dispute in a kindergarten classroom.
“What happened at Standing Rock worried the oil industry,” Cherokee Nation’s Rebecca Nagle reported in the podcast, This Land. “One study estimated Indigenous resistance cost the Dakota Access Pipeline $7.5 billion. It also inspired movements against other pipelines. Industry leaders, including lobbying groups that represent Gibson Dunn clients, have talked openly about why these Indigenous-led protests need to be stopped. Seven months after the resistance camp in North Dakota was shut down, Gibson Dunn filed the Brackeens’ case in federal court.” Season two of This Land further outlines dynamics of the story and the sordid connections between the attack on ICWA and, ultimately, Indigenous sovereignty, as an outgrowth of the resistance to Big Oil from Native communities.
The Facts of the Brackeen v. Haaland Case
“The Indian Child Welfare Act has often been a successful mechanism for protecting Native cultures, as it gives tribal governments the final say in whether their enrolled children stay within tribal kinship care,” Iron Eyes said. “The need to legally defend Native families was what prompted the founding of the Lakota People’s Law Project. Our original purpose was to help prevent Lakota Children from being taken from their homes by the state. By 2011, Lakota Law was actively engaging both tribes and the federal government to intervene and stop ICWA violations in the Dakotas. Now, in 2021, we’ve seen progress, but not nearly enough. Too often, lawsuits waged by non-Native parties still emerge when tribes get involved in custody cases.”
In the case of Brackeen v. Haaland, a Navajo child resided with his grandparents, who loved and cared for him over his first year of life. But, because of substance abuse issues with his parents, state Child Protective Services intervened and sent him to foster care with the Brackeens, a white, Christian couple in Texas. Within a couple months, shortly after the parents’ rights were terminated, the Navajo Nation found a Navajo family in New Mexico to adopt the child.
The Brackeens responded by hiring a family lawyer to file a non-federal suit to keep the child in their home. Their motion (in which they consistently misspelled Navajo) was denied on Aug. 22, 2017. Six days later, Gibson Dunn started filing motions on behalf of the Brackeens. That timeline is significant, because, generally, deciding to offer representation is a much lengthier process, and most law firms won’t have the resources to write this kind of appeal so quickly. But Gibson Dunn did — and it offered to represent the Brackeens pro bono.
Gibson Dunn has a reputation for doing dirty work for corporations. As noted above and detailed in This Land, the firm is known not for settling suits, but for its scorched earth practices. And now, they’re applying that same approach to a custody battle with a two-year-old. Around the same time the Brackeens were fighting for custody in state court, Gibson Dunn helped them file another lawsuit in federal court: Brackeen v. Haaland.
Gibson Dunn also alerted the Texas Attorney General (AG), who came to court with an agenda: he asked the judge to declare ICWA unconstitutional. Keep in mind, this is family court. The State AG’s office doesn’t normally participate in a case at the trial level like this, unless it has reached the appellate level.
Next, the Texas AG sent a missive to other Republican state-level AGs to gauge their interest in having their states join the action. Three AGs, from Indiana, Ohio, and Louisiana, assented and signed on. It’s notable that, between them, these four states represent less than 1 percent of all tribal members in the U.S. Ohio has zero. Meanwhile, 26 states, home to 94 percent of all tribes in the U.S., expressed their opposition to the lawsuit.
These statistics suggest that states who have been historically most successful at enacting genocide against Native Americans, i.e. denying the formation of sovereign tribal nations within their borders — and therefore with the least vested interest in supporting a law that keeps Indian children with Indian families — are now, once again, leading the charge to break up Native family structures.
Freedom of Information Act (FOIA) requests from the This Land podcast team uncovered just how little engagement with ICWA these states have. For example, Louisiana sees around 10,000 adoption cases in family court per year, and in 2020, just 32 were ICWA cases. FOIA requests also uncovered that these states weren’t even following the advice of their own Child Welfare departments, which described ICWA as an excellent law. Rather, these AGs are actively communicating with and seeking advice, editorial oversight, and input from anti-ICWA lawyers.
The Legal Pipeline
The Brackeen case originated in the courtroom of Judge Reed O'Connor, who presides over a Fifth Circuit District Court in Texas. According to the AP, O’Connor is the go-to judge for conservatives. In the past, he’s issued rulings declaring unconstitutional the Affordable Care Act, transgender bathrooms in schools, parental leave for LGBTQ parents, and Deferred Action for Childhood Arrivals (DACA). More than half of the lawsuits filed by the Texas AG against federal law have landed in his courtroom.
And now, Gibson Dunn has some additional expert legal help in the form of Paul Clement, an attorney who regularly attacks existing Indian law in the highest courts in the land. Clement helped to disestablish the Mashpee Tribe's reservation in 2020. And though Clement has been known to bill at $1,000.00 per hour, he, too, is working this case pro bono.
In the Mashpee case, tribal status became “collateral damage” in a bid to open a private Casino. Tribes control half of all gaming revenue in the U.S. And, while tribes hold just about 2 percent of all land nationwide, that land holds about one third of the country’s fossil fuel resources — largely made up of coal, natural gas, and oil. The total valuation of all these resources is around 1.5 trillion dollars. The profit potentials for non-Native private industry, should tribal lands and gaming be taken away, are staggering.
So, while this case appears, on its face, to be a battle over what is best for children in the heart-wrenching process of adoption, it’s also about far more. Native children have become pawns in a colonial chess game. Through strategic defenses of “states’ rights,” attorneys close to Big Oil and other industries have set up ICWA to be the first domino to fall in a series that could destroy tribal sovereignty and end in a land grab by the fossil fuel industry to continue extractive destruction.
It seems extremely likely that ICWA is being used to obtain an advantage so that millionaires and billionaires can get what they really want, which is control over fossil fuels on Indian land, and gaming, too. Like the Mashpee, ICWA — and the children and families ICWA is designed to protect — will just be more collateral damage.
While all of this information may shock or disturb, there is so much more to learn that won’t fit into even this long blog. Again, you get far more detail by listening to the This Land podcast. Nagle’s reporting on how the far right is using Native children to attack American Indian tribes and advance a conservative agenda is deeply chilling. It is only thanks to that high-level investigative journalism that we are able to provide you with this information.
We Must Act Now
“To those of you invested in anti-pipeline movements, know that this fight is no different from those we’ve undertaken at Standing Rock against the Dakota Access pipeline or in Minnesota against Line 3,” Iron Eyes said. “It’s the same enemy using a different tactic to poison the planet. This is almost certainly Big Oil coming through the back door, and the danger may now be even greater. The victim is not just Mother Earth, her waters, and her sacred womb. It’s not just the Indigenous women and families on the front lines of the epidemic of missing and murdered Indigenous women and girls. It’s not even just the children being protected by ICWA. We are talking about the potential destruction of all tribal law, the taking of all tribal lands, and the elimination of all Native sovereignty. This time, it certainly appears that Big Oil and its allies are using children as human missiles and the courts as the launch pads to accomplish their destructive agenda — all, of course, in the name of corporate profits.”
Tell President Biden and the Department of Justice: defend Native children and families, the Indian Child Welfare Act, and Secretary Haaland with everything they’ve got. The consequences of failure could mean the end of all progress Native People across this land have made in the face of centuries of oppression and genocide.
Update: The High Court will hear this case during its next session, beginning in the autumn of 2022. Justices will begin reading materials sooner, and the deadline for amicus briefs and other legal documentation for their consideration is coming up in August. Lakota Law's legal team will submit an amicus brief to the High Court in defense of this important law.
The brief highlights the perspective of ICWA's principal author, former South Dakota Senator and current Lakota People’s Law Project Advisory Committee Chairman James Abourezk. Our draft has been submitted for review and feedback from other legal partners in this fight, because a coordinated defense is required to keep Native children in Native care and protect Indigenous sovereignty. We thank you for your solidarity. Stay tuned for further updates.