Haaland v. Brackeen, which the Supreme Court handed down on Thursday, is a case about an atrocity committed by the United States of America over the course of many decades.
For much of our nation’s history, American Indian children were taken from their families and sent to boarding schools, where these children were forced to abandon their language and customs, and to behave like white Americans. As the founder of one of these schools said in 1892, “all the Indian there is in the race should be dead. Kill the Indian in him, and save the man.”
But Brackeen is also a case about the US Congress’s decision that Americans today must be better than our ancestors. In 1978, Congress enacted the Indian Child Welfare Act (ICWA), which provides an array of safeguards preventing Indian children from being removed from their families and their communities. In its 7-2 decision in Brackeen, the Supreme Court rejected an array of constitutional challenges a group of non-Indian families made to this law.
(This piece will use the term “Indian” to refer to tribal citizens, and not “Native American” because the word “Indian” has a very precise legal meaning in federal law that is distinct from the meaning of the term “Native.”)
These families, who wanted to adopt American Indian children, alleged that the ICWA violates the Constitution in at least four different ways.
The fact that ICWA has been on the books for more than four decades and no one has noticed these alleged constitutional flaws until very recently should give any reasonable judge pause. Indeed, this lawsuit may not have been taken seriously if Texas’s attorney general hadn’t filed a similar suit, and if these cases were not heard by Reed O’Connor, a former Republican Capitol Hill staffer best known for his failed effort to invalidate the entire Affordable Care Act. Five years ago, O’Connor declared ICWA unconstitutional.
In any event, Justice Amy Coney Barrett’s majority opinion…
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