The recent overturning of Roe v. Wade has so many of us questioning the wisdom of our current Supreme Court. Their overturning of settled law in this, and other instances, threatens the hard-won freedoms for all Americans. It has also had unsettling impacts on some of the most marginalized in our country – the American Indian. Settled Law has always been touch-and-go in this arena and it is apparent we are in for more changes.
The U. S. government has a long and evolving history regarding its treatment of tribal nations and their sovereignty. Numerous treaties were made, and subsequently broken, by the federal government as it exchanged forced moves to reservations for the right of tribes to hold lands and hunting/fishing rights.
During the 1800s the federal government attempted to solve what it termed the “Indian Problem” as settlers continually moved west, encroaching into Native American land. One solution, The Dawes Act of 1887, authorized the president to “grant” a standard acre allotment to individual tribal members from tribal lands that were held in common. This acreage was to be held by individuals for 25 years before it could be sold to the highest bidder. However, the Dawes Act resulted in unallocated lands that the federal government sold to whites. The “granted” lands and the for-sale lands were checkerboarded together as a means to break up tribal cohesiveness. In addition, the “granted” lands were sometimes held by Indians unable to pay the taxes, so they lost their allotted lands.
In addition to the problems of land and tribal sovereignty, poverty reigned in Indian Country. Another factor was education of tribal children and forced boarding schools that began in 1860 with the first school being located on the Yakama Reservation. Some of these schools were run by Unitarians. One such example was a boarding school on the Crow reservation in Montana called the “Montana Industrial School for Indians” or “Bond’s Mission School.” In 1928, 41 years after the Dawes Act was implemented, the Meriam Report (official title: The Problem of Indian Administration) demonstrated the failed policies of the federal government about how it dealt with its “Indian Problem”. By 1932, fully two thirds of the land belonging to Indigenous people in 1887 was now owned by whites. In 1953, House Concurrent Resolution 108 gave Indians one-way tickets to low paying jobs in big cities like Chicago, Los Angeles, San Francisco, Minneapolis, Seattle and New York. A large population shift occurred so that now more Indians live in the city than live on reservations.
In response to the failures pointed out in the Meriam Report, the Wheeler-Howard Act of 1934 (or the Indian Reorganization Act) was put into place allowing tribes to be self-governing if they chose. Some Washington State tribes that immediately opted in were the Colville, the Shoalwater, the Spokane, the Lummi, the Chehalis, and the Yakama Nations. This decision, until recently, has been a supporting factor in the federal government’s legal view of Indigenous lands. While it has been challenged (remember Billy Frank, the Fish Wars and the Boldt decision?), the Wheeler-Howard Act has held until recently. The US Supreme Court, in the Oklahoma v. Castro-Huerto decision this summer, has granted the State of Oklahoma the right to prosecute non-Indians doing harm to Indians on Indian reservations in Eastern Oklahoma. Before the decision, tribal police had jurisdiction.
Tribal entities, for example the Cherokee Nation, have poured millions of dollars into their police. Those police cooperate with local, state and federal governments, but they have had jurisdiction of all people on Indian lands. The Oklahoma v. Castro-Huerto decision directly threatens the sovereignty of Indian Country again.
Supreme Court Justice Brett Kavanaugh was quoted in a recent Seattle Times as writing, “’As a matter of state sovereignty, a State has jurisdiction over all of its territory, including Indian Country.” In this statement, Kavanaugh discounted the court’s landmark Worcester v. Georgia decision of 1832, which held that tribal lands were separate from the states, describing that stance as outdated. In his dissenting opinion, Supreme Court Justice Neil Gorsuch “wrote that Worcester v. Georgia correctly established that tribes retain their sovereignty unless and until Congress says otherwise.”
Today, I am writing about another decision on the Supreme Court docket for October. The case, Brakeen vs. Haaland (formerly Brakeen vs. Bernhardt) is being brought by the states of Texas, Indiana, and Louisiana. It alleges the Indian Child Welfare Act (ICWA) is unconstitutional. That Act says Indian children in distress are to be left with responsible family members or in the tribal community for their welfare. The concept is an attempt to stop some state agencies from taking Indian children and putting them in the care of white families. Reservations do not have Child Protective Service functions and without the ICWA, children become vulnerable to removal from their family’s home. Forty-three years as settled law, the ICWA keeps Indigenous children connected to their community and culture.
Madonna Thunder Hawk of the Lakota Law Center warns the Supreme Court is committed to undermining both individual and Indigenous sovereignty: “Their deliberations continue to rob Indigenous autonomy and self determination by taking away the very protections that shelter our young ones.” Local tribal law experts agree with her.
In 2018, a District Court in Texas found the ICWA unconstitutional. The federal government and four intervening tribal nations had that decision reversed in 2019. In April, 2020, a review was issued that brought into question the definition of “Indian Child” and also found certain sections of ICWA to be unconstitutional. In September, 2021, the Department of Justice, the State of Texas, the intervening tribal nations (including the local Quinault Tribe) and several individual plaintiffs, all formally asked the Supreme Court to look at it. Since that request, the Oklahoma v. Castro-Heurto decision has sent shockwaves throughout Indian Country as settled law no longer seems to be sacred to the Supreme Court. They fear once again they will be losing their children.
Our local tribes are asking we vote for pro-sovereignty law-makers in upcoming local and congressional elections. We, as Unitarians, aren’t responsible for what Unitarians did to Indian children in the past, but we can be accountable to support them and our local indigenous populations now.
by Maury Edwards, on behalf of Indigenous Connections Team members (a sub-group of the Eighth Principle Ministry Team)