As I write this on November 8th, the outcome of the midterm elections is uncertain – and I am a nervous wreck. The date has so many echos in history, some good, some bad. In 1895, Wilhelm Röntgen accidentally discovered the x-ray, a boon to medicine. On this day, Hitler started the Beer Hall Putsch, a (for now) unsuccessful attempt to overthrow the German government. An attempt to kill Adolf Hitler and other high ranking members of the Nazi party during the 16th anniversary observances of the Beer Hall Putsch failed in 1939. In 1994, the Republican Party won control of both the Senate and the House of Representatives on 11/8 for the first time in over forty years. And on November 8, 1978, President Jimmy Carter signed the Indian Child Welfare Act (ICWA), a law enacted to address the crisis of Native children being separated from their families, communities, and cultures, the gold standard for child welfare policies and practices. Decades if not centuries of children stolen and a culture to be extinguished were supposed to be a thing of the past.

If you read this on November 9th, the constitutionality of the anti-genocidal ICWA is argued in front of the Supreme Court, with 4 cases consolidated under Haaland v. Brackeen, challenged by non-Indian families who wish to adopt American Indian children, along with the state of Texas and three other states with very few Native inhabitants. They are 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. (A date, by the way, equally if not more ominous than November 8th: a night of coordinated waves of anti-Semitic violence in 1938, known as Kristallnacht, for the many glass windows broken in Jewish stores, homes and synagogues, 30.000 Jewish men imprisoned, the beginning of he Holocaust.To add insult to injury, the Nazi regime blamed the Jews for the riots and imposed exorbitant fines on Jewish communities for the damages. Never forget.)

Ostensibly the Brackeen case is about the right of White parents to adopt American-Indian children, but at closer inspection, it is the first step in a far broader attack on tribal rights and sovereignty, one that ultimately aims at control over land and extraction of resources. I figure, rather than biting my nails over the election outcome, I’ll try to fill you in about what is at stake with courts that are stacked – and might be ever more so. (Detailed information about the case can be found in a terrific podcast, This Land, by Rebecca Nagle, (Cherokee Nation,) in an overview by Lakotalaw.org. and an essay in yesterday’s VOX. I am summarizing below.)

The Supreme Court is asked to decide on basically two major issues. Plaintiffs contend that federal protections to keep Native children with Native families constitute illegal racial discrimination and that ICWA’s federal standards “commandeer” state courts and agencies for a federal agenda. In other words, White families wanting to foster and adopt Native children are claiming reverse racism and arguing that federal overreach is trampling states’ rights associated with the Commerce Clause – two dogwhistles frequently linked to the desire to dismantle anti-racist policies.

So, legislation consciously designed to undo genocidal, racist policy is claimed to be racist because it gives preference to Native families to adopt native children over the rights of Whites. Never mind that Native status is a political designation (see Morton v. Mancari) and not a racial one. And with that political status come certain rights – tribal law and sovereignty included. According to the ACLU:

“Tribal sovereignty is the right of tribes — 574 currently recognized by the federal government — to make and be governed by their own laws. This sovereignty is inherent, as Native Nations existed long before the creation of the United States. Hundreds of treaties have guaranteed tribal nations the right to self-govern. Through these treaties, Native Nations gave up their right to millions of acres of land that would become the United States in exchange for promises to tribes, including the guarantee that lands “reserved” for tribes would be governed by the tribes in perpetuity. The outcome of Brackeen v. Haaland could put centuries-long legal precedent upholding tribal sovereignty — including tribes’ right and ability to preserve their unique cultural identities, raise their own children and govern themselves — in jeopardy.”

Under the guise of “equality” language, Native tribes’ federal protections and rights are supposed to be gutted, with tribal rights claimed to violate the rights of individuals. The framework upheld by ICWA “is the same federal framework that recognizes the inherent right of Tribal Nations to protect their sacred sites, burial grounds, and drinking water. If the Supreme Court chips away at Tribal sovereignty, oil and gas companies will have a clearer path to extract fossil fuels on Tribal lands without the consent of Tribal Nations.”

The pro bono lawyers for the plaintiffs have previously represented Walmart, Amazon, Chevron, Shell and Energy Transfer, the pipeline company behind the Dakota Access Pipeline (DAPL) that indigenous people have protested against at Standing Rock, which cost the pipeline company upwards of $7.5 billion. Indigenous resistance worried the oil industry and only seven months after the indigenous camps in North Dakota were shut down, Gibson Dunn filed the case that is now in front of the Supreme Court in federal court.

This is of course not new. In the 1950s the same argument was used by Western States congressmen to terminate tribes: Collective rights of tribes shouldn’t trump individual rights of US citizens. The results were catastrophic. The legal abolition of dozens of tribes led to the privatization of their lands for the benefit of white settlers and businesses. Now as well, it is not only the children who will suffer, although studies across the last decade have shown how much they do. In two studies from 1969 to 1974, the Association on American Indian Affairs found that 25-35% of all Native children had been separated from their families and placed in foster homes or adoptive homes or institutions. Ninety percent were placed in non-Indian homes. Yet today, after ICWA was established, Native children are four times more likely to be removed from their families than white children are from theirs. And according to a 2020 study, in many states Native family separation has surpassed rates prior to ICWA. This is mostly due to states ignoring or flouting ICWA requirements. (Ref.)

But a potential ruling of the ICWA as unconstitutional has further consequences. The plaintiffs’ arguments about the commerce clause (the other leg they stand on in addition to claims of reverse racism) could potentially invalidate much of the last century of federal law — including landmark statutes such as the Affordable Care Act, the ban on whites-only lunch counters, and the federal ban on child labor. It is questionable if the Supreme Court would go this far. But then again, with this court you never know. I guess worriedly biting my nails will not stop after November 8th….

Photographs today are from Texas, where the case originated. Images are of missions, the church actively involved in the “reeducation” of Indian children and erasure of tribal language and culture, and some photographs from hikes.

Music is about a stolen child.