VAWA Sovereignty Initiative Update

By Mary Kathryn Nagle, J.D., Cherokee Nation, Counsel to NIWRC

Brackeen v. Haaland

Through its VAWA Sovereignty Initiative (“VSI”), the National Indigenous Women’s Resource Center (NIWRC) monitors federal court litigation that could impact Tribal sovereignty and the ability of Tribal Nations to protect their women and children. If a case has the potential to undermine the ability of Tribal Nations to protect their women and children, the NIWRC files an amicus brief to educate the Supreme Court (SCOTUS). Since its creation in 2015, the VSI has made a significant impact in protecting and preserving Tribal sovereignty.

The NIWRC filed an amicus brief in August 2022 in Brackeen v. Haaland.1 The SCOTUS heard oral arguments in November 2022. A decision will likely not be issued until June 2023, when the SCOTUS Term ends.

The plaintiffs’ case in Brackeen presents itself as a challenge to the constitutionality of the Indian Child Welfare Act (ICWA), but it is much more than that. The Plaintiffs argue that ICWA is unconstitutional because it violates States’ rights under the Tenth Amendment and because “Indian” constitutes an unconstitutional race-based classification that violates the Equal Protection Clause of the Fourteenth Amendment as incorporated through the Fifth. The Plaintiffs present four arguments that: (1) Congress did not have the constitutional authority to enact ICWA; (2) ICWA’s placement preferences violate the Equal Protection Clause; (3) certain provisions of ICWA violate the anti-commandeering doctrine; and (4) one provision of ICWA violates the non-delegation doctrine. These arguments are not only incredibly erroneous, but they are also incredibly dangerous.

It is no coincidence that these anti-Tribal sovereignty arguments are presented by the same law firm that represented the Dakota Access

Mary Kathryn Nagle, Cherokee Nation, Counsel to NIWRC. Photo courtesy of Mary Kathryn Nagle.

Pipeline (DAPL) in the litigation brought by the Standing Rock Sioux Tribe, the Cheyenne River Sioux Tribe, and the Yankton Sioux Tribe. The Tribes brought this litigation to prevent DAPL from destroying burials and sacred sites, as well as the Tribes’ drinking waters and treaty-protected hunting territories. Gibson Dunn, the law firm representing the Plaintiffs (pro bono) in Brackeen, represented Dakota Access, LLC in the company’s fight to eviscerate the treaty rights of the Tribes in North and South Dakota.

There is a lot at stake in this case. Nothing is more critical to ensuring the safety and welfare of Indian children than preserving the sovereignty of their Tribal Nations. This is why the NIWRC, Sandy White Hawk, Stephanie Benally, and eighty-eight victim advocacy, legal services, religious, and children’s rights organizations filed an amicus brief arguing for the constitutionality of ICWA.

The NIWRC’s amicus brief points out that ICWA is not alone in its use of “Indian” as a political classification. For the last forty years, everyone has understood these terms to be political classifications: “Indian” refers to a citizen of a Tribal Nation, and non-Indian refers to someone who is not a citizen of a Tribal Nation—regardless of that individual’s race.

The Constitution itself refers to “Indians” and “Indian [T]ribes.” The Constitution further states that  treaties signed with Indian tribes and ratified by the Senate become the “Supreme Law of the land.” Finally, the Constitution assigns Congress the task of administering the U.S.’’ duties and obligations arising from signed treaties. The Constitution’s framers, as well as the drafters of the Fourteenth Amendment’s Equal Protection Clause, never envisioned a reality in which “Indian” would be a classification that violates the Constitution. Quite the opposite, the use of “Indians” and “Indian tribe” in the Constitution demonstrates that the Constitution requires Congress to use “Indian” as a political classification in federal legislation to ensure that the U.S. lives up to its obligations.

And as the Supreme Court and Congress have repeatedly recognized, these treaties created trust responsibilities that the U.S. owes to Tribal Nations. One of these duties is the duty of protection, specifically the protection of Indian women and children. Congress cannot effectuate its trust responsibilities if terms that refer to Tribal citizens are declared racial classifications subject to scrutiny under the Fourteenth Amendment.

Furthermore, because the Court in Oliphant declared that only Congress could restore Tribal criminal jurisdiction over non-Indian defendants, if “Indian” is transformed into a racial classification, then Congress will be without the authority to fix a crisis of violence that this Court has declared only Congress can fix. Ultimately, if “Indian” is declared to be a racial and not a political classification, then the ability of Congress to “fulfill its treaty obligations and its responsibilities to the Indian Tribes” will be endangered—if not eliminated. Like ICWA and VAWA, the Indian Child Protection Act, Savanna’s Act, and the Not Invisible Act utilize “Indian” as a political classification. These laws save lives. Prohibiting Congress from effectuating its trust responsibilities to Indian women and children only undermines public safety and disrupts the Constitution’s separation of powers, keeping the branches of the republic in check.

Thanks to the efforts of the National Indian Child Welfare Association, hundreds of Natives and non-Native allies prayed for ICWA, Indian children, and Tribal sovereignty at the doorsteps of the Court during oral arguments in November.

Although it is unclear whether ICWA will be declared constitutional or unconstitutional, it is clear that this case will have huge consequences for Native women, children, and Native Nations. The NIWRC will continue to monitor this case and report when a decision is reached. In the meantime, let’s keep our children in our prayers, as the ability of our Nations to protect them is under direct attack.