VAWA Sovereignty Initiative Update

By Mary Kathryn Nagle, Cherokee Nation, Counsel, NIWRC

September 2023

Photo of Mary Kathryn Nagle. / Photo courtesyof Mary Kathryn Nagle.

The Violence Against Women Act Sovereignty Initiative continues its important work in safeguarding the sovereignty of our Tribal Nations to protect our women and children from violence on Tribal lands. The Initiative was busy over the summer as the Supreme Court issued its decision in Haaland v. Brackeen—a case in which the NIWRC filed an amicus brief—and the NIWRC filed a new amicus brief in United States v. Rahimi. This update will discuss both in turn.

Haaland v. Brackeen

On June 15, the Supreme Court issued its decision in Haaland v. Brackeen. In a 7-2 decision, the Supreme Court upheld the constitutionality of the Indian Child Welfare Act (ICWA). This is a huge victory for Indian Country and all Tribal Nations, as the decision upholds the inherent sovereign authority of our Tribal Nations to protect Indian children and Indian families.

The NIWRC filed an amicus brief in Brackeen, articulating the reasons why ICWA constitutes a critical tool to protect Indian children and women from domestic violence and sexual assault. The NIWRC filed its amicus brief in August 2022, and oral arguments were heard in November 2022. Then, we all waited on pins and needles until the Court finally issued its decision this past June.

Indian Country is now breathing a sigh of relief following this watershed victory—but there are a couple of important things to keep in mind. The decision is a huge victory because the Court held that Congress does in fact have the requisite constitutional authority to pass ICWA, thereby dismissing one of the Brackeen plaintiffs’ main challenges to ICWA.

However, the Court did not reach the merits on the plaintiffs’ equal protection challenges. Plaintiffs in this case have argued that when Congress uses “Indian” to pass legislation related to citizens of Tribal Nations, “Indian” causes a raced-based classification that violates the Fourteenth Amendment’s Equal Protection Clause (as incorporated against the federal government in the Fifth).

Historically, the Supreme Court has always heldthat “Indian,” when referring to citizens of Tribal Nations, constitutes a political classification, not a racial classification. This has been the law since the Fourteenth Amendment’s Equal Protection Clause was created and passed in 1868. However, the plaintiffs’ law firm in Brackeen (specifically Gibson Dunn)—as well as the Goldwater Institute— have made it their mission to secure a federal court decision declaring “Indian” to be an unconstitutional race-based classification. This of course would have huge consequences for all federal statutes that currently rely on “Indian” as a political classification in relation to citizens of Tribal Nations.

In Brackeen, the Court punted the question for another day. The Court dismissed the plaintiffs’ claims based on an Article III doctrine known as “standing,” essentially concluding that the Court did not have jurisdiction to hear the plaintiffs’ Equal Protection claims because they could not establish that their injuries were fairly traceable to the actions of the federal government defendants, and thus, plaintiffs failed to satisfy Article III standing. This leaves the door open for other plaintiffs to come back to the courthouse with claims that will meet the requirements for Article III standing, and attorneys at Goldwater Institute have already pledged to do this.

Thus, we must remain vigilant and prepare for the attacks against Tribal sovereignty and Tribal Nations that the Goldwater Institute and Gibson Dunn are currently planning. Although the Court’s decision in Brackeen gives us significant reason to celebrate, we must also brace ourselves for the ongoing attacks Gibson Dunn and the Goldwater Institute have promised to bring.

United States v. Rahimi

On August 21, the NIWRC filed its amicus brief in United States v. Rahimi. This case has been scheduled for oral argument before the Supreme Court on November 7. In Rahimi, the Fifth Circuit Court of Appeals held that 18 U.S.C. § 922(g)(8) violates the Second Amendment. If left untouched, this decision threatens to leave Native women and children even more vulnerable and susceptible to homicide than they are at present.

Section 922(g)(8) is the federal law that prohibit individuals subject to a protection order from accessing and possessing firearms. The NIWRC filed its amicus brief to explain how the loss of § 922(g)(8)’s protections will place Native women at even greater risk. Native women are more likely to be victimized by domestic violence than any other population in the United States. When a Native woman goes to her Tribal Court and secures a protective order, § 922(g) (8) makes it illegal for her abuser to access a firearm. Section 922(g)(8) is a is a statute that saves lives.

Under the Supreme Court’s Second Amendment jurisprudence, whether § 922(g)(8) remains constitutional and in effect as federal law will depend on whether the Court finds the firearm regulation in § 922(g)(8) to be commiserate with firearm regulations at the time of the Second Amendment’s passage. Thus, a good deal of the briefing and discussion at oral argument will be focused on relevant historical analysis. The NIWRC’s amicus brief points out that, although the Second Amendment was initially passed to protect the right of individual Americans to possess firearms in order to kill Indians. However, this policy, changed by the time the United States passed the Fourteenth Amendment—a time when the United States was signing numerous treaties with Tribal Nations and promising to protect Tribal citizens from “bad men”—white men seeking to do harm to Tribal citizens on Tribal lands. The NIWRC amicus brief, therefore, makes the argument that § 922(g) (8)’s prohibition on access to firearms for individuals subject to a protection order is part and parcel of the United States treaty trust duty and responsibility to safeguard the lives of Native women.

Because oral argument will take place in early November, it is likely that a decision in this case will come down sometime in spring of 2024. The NIWRC will monitor the case closely and provide updates as they come in.