Opinion | SCOTUS threatens Indian Country
Native Americans, as you might have guessed, have had a rocky relationship with the Supreme Court. Even the most revered justices, like Ruth Bader Ginsburg, have ruled against the sovereignty of Native nations. Bader Ginsburg wrote in the 8-1 majority opinion in 2005’s Sherrill v. Oneida Indian Nation, “we hold that the (Oneida) tribe cannot unilaterally revive its ancient sovereignty.” While the law was obviously up for deliberation, the near-unanimous decision was only one instance in a long history of Indian Law.
RBG is gone and a new Supreme Court term began Oct. 3, one that’s shaping up to be just as controversial as the previous. In the court’s last term, the justices made it clear they are unafraid to overturn landmark decisions and decades of precedent.
News to no one are the rolling repercussions from the overturning of Roe v. Wade. The decision in Dobbs v. Jackson Women’s Health Organization undid decades of precedent on women’s rights and opened a can of worms concerning the implied right to personal privacy.
The high court also ruled on Oklahoma v. Castro-Huerta, which walks back the decision in McGirt v. Oklahoma from 2020, along with nearly 200 years of precedent in Indian Law. The McGirt decision, favoring Oklahoma, limits tribal sovereignty and gives states the right to prosecute non-Native individuals who commit crimes against Native persons on tribal lands. This rocked Indigenous communities nationwide as a threat to sovereignty.
In the Castro-Huerta dissent, Justice Neil Gorsuch argues the ruling was a mistake of the court. Why, he urged, would it not be in the interest of tribes to prosecute those who commit crimes against its citizens on its land?
This term, the Supreme Court is hearing a cornucopia of contentious cases on affirmative action, voting rights and yet another business refusing to serve a gay couple.
Another case coming before the court involving clean water regulations, Sackett v. EPA, directly impacts Indian Country. Native peoples have fought hard and long to secure protections for clean air and water. Tribes have established their own agencies to step up when the US fails . The Indian Child Welfare Act is a product of this same sentiment. This term it is under attack.
In 1978, Congress passed ICWA, which was enacted to “protect the best interest of Indian Children and to promote the stability and security of Indian tribes and families.” ICWA ensures children who are eligible for enrollment in a Native American nation will be adopted to Native American families whenever possible.
The Supreme Court will hear Haaland v. Brackeen, three cases against ICWA from plaintiffs who feel ICWA is unfair, claiming it discriminates based on race and takes power away from the states. ICWA’s opponents see the law as government overreach. They often cite talking points that claim the act is not in the best interest of children, placing them in the very homes in which they are abused. This is simply the regurgitated rhetoric of non-Natives desperate to adopt Native American children, and these arguments fail to recognize the complex relationship Native nations have with the US government.
Prior to ICWA, 25%-35% of Native American children were taken by “Indian agents” and adopted to white families. This was a continuation of the assimilative US policy to “Kill the Indian, save the man.” Today, Native American children are still disproportionately represented in the country’s foster care system. At the time ICWA was passed, “25%–35% of all Native children were being removed; of these, 85% were placed outside of their families and communities — even when fit and willing relatives were available,” according to the National Indian Child Welfare Association.
The Constitution recognizes tribal nations as sovereign nations, though domestic dependents. Indian Law has long held that states do not have jurisdiction over the sovereign tribal nations residing in their imaginary dotted borders. Native advocates and activists have long taken to the steps of the court, and in some cases they saw justice. There is no denying previous impacts the Supreme Court has had for the better, but I am anxious for this term.
Our futures are on the line. Indigenous sovereignty in the US is always at risk, especially in a court that has dismissed the importance of precedent. The Constitution calls Natives “merciless Indian Savages.” How does an originalist interpret that? If precedent can be thrown out as “egregiously wrong,” who are we left to trust?
We can’t afford for the court to continue to fail.
Kadin Mills is a Medill Junior. He can be contacted at [email protected]. If you would like to respond publicly to this op-ed, send a Letter to the Editor to [email protected]. The views expressed in this piece do not necessarily reflect the views of all staff members of The Daily Northwestern.