Genocide by Lawsuit
In the United States, indigenous sovereignty is being eroded piece by piece.
A series of recent Supreme Court decisions have chipped away at longstanding legal distinctions between Native American tribes and the U.S. government. First, on June 13, the court decided in a 6–3 decision in the case of Denezpi v. United States that someone convicted of a crime in tribal courts could not claim double jeopardy if they were also convicted by the U.S. federal court system for the same crime. Then, on June 29, in a 5–4 decision, the court decided in Oklahoma v. Castro-Huerta, that both the federal and state governments have jurisdiction to prosecute crimes committed by non-Indians against Indians on tribal land. However, deeper erosion of tribal sovereignty may still be on the horizon, with the SCOTUS soon to hear a case challenging the constitutionality of the Indian Child Welfare Act (ICWA). Passed into law in 1978, ICWA was created to give tribal governments control over the adoption of Native American children, following research that found a substantial rate of child removal from tribal communities through the adoption system.
If ICWA is overturned, it may constitute no less than genocide by lawsuit.
In 2016, Chad and Jennifer Brackeen adopted a 10-month-old Navajo boy after his mother lost custody over drug use.
The following year, the state of Texas — where the boy’s mother was resident — terminated parental rights for both the mother and the father — who was Cherokee. Then, following a failed attempt by the Navajo Nation to have the boy placed with a Navajo family, the Brackeens attempted to adopt the boy’s sister. After the extended family prevented this move, the Brackeens filed a suit in federal court to have ICWA overturned on grounds of racial discrimination.
But the basis of tribal sovereignty is not rooted in race.
While the language of ICWA is somewhat ambiguous regarding the status of “Indians” as a national or racial category, the legal precedent it is based on is not. The basis of Tribal sovereignty in the United States is governed by the Indian Appropriation Act of 1871. That act removed the status of Native American tribes as nations independent of the United States and positioned indigenous populations as “domestic dependent nations” to be considered wards of the state. This act also effectively nullified prior treaties with the formerly independent indigenous nations.m, leaving questions of tribal sovereignty to be determined but future federal decisions.
The slow erasure of Native American culture is precisely the crisis that ICWA was designed to curb. How Native tribes manage to survive if it is overturned remains to be seen. If history is a guide, their future seems very grim.
Originally published at https://davidnwaeze.substack.com on July 4, 2022.