INTRODUCTION

Haaland v. Brackeen is a 2023 US Supreme Court decision rejecting several challenges to the Indian Child Welfare Act (ICWA), a federal law establishing a framework to control adoptions of any child who is “a member of an Indian tribe” or who is “eligible for membership in an Indian tribe and is the biological child of a member of an Indian tribe.”

The challengers to ICWA raised three kinds of Constitutional challenges. They argued that it exceeds federal authority, infringes state sovereignty, and discriminates on the basis of race.

The Brackeen decision upheld ICWA as within the extent of federal authority, i.e., the US ‘plenary power’ over ‘Indians’. The decision also said the Act was so carefully drafted that it did not infringe state sovereignty.

The court did not rule on the ‘race’ challenge.

HAALAND v. BRACKEEN: MISPLACED CELEBRATION

The celebration of Haaland v. Brackeen as “a significant victory for federal Indian law and the rights of tribes and Native children across the nation” is an oxymoron, because ‘federal Indian law’ is actually federal anti-Indian law. It is a structure of US domination, not ‘protection’ (unless we want to see ‘protection racket’ as the real meaning of the system).

The outpouring of liberal “relief” in response to Haaland v. Brackeen is thus wholly misplaced. It misses the fundamental domination that the decision affirmed when it rejected challenges to the Indian Child Welfare Act (ICWA).

The Brackeen majority opinion, penned by Justice Amy Barrett, opens with the statement, “Congress’s power to legislate with respect to the Indian tribes [is] ‘plenary and exclusive.’”

Lest there be any doubt about the extent of the claim of a right of domination inherent in ‘plenary and exclusive’ power, the opinion adds:

Congress has plenary authority to limit, modify or eliminate the powers of local self-government which the tribes otherwise possess.

An alert reader, not mired in superficial discussions about ‘liberal’ and ‘conservative’ members of the court, will immediately see that Haaland v. Brackeen is a “significant victory for federal Indian law”, but not for “the rights of tribes”.

Brackeen is neither more nor less than a standard affirmation of the system of domination baked into US ‘Indian law’ from the outset. To celebrate Brackeen is to celebrate the entrenchment of the US claim of domination over Indigenous peoples.

Let’s explore why that is the case.

FEDERAL ANTI-INDIAN LAW

‘Federal Indian law’ originated in a trilogy of early 19^th century Supreme Court cases authored by Chief Justice John Marshall. The urtext is Johnson v. McIntosh (1823), which declared that Native peoples did not own their lands after they had been “discovered” by Christian colonists, who thereby acquired “title”. Marshall himself admitted that the decision was an “extravagant . . . pretensionof converting the discovery of an inhabited country into conquest.” In 1831, Cherokee Nation v. State of Georgia built on Johnson, ruling that Native nations were not independent of the United States and that Native peoples were subject to U.S. “guardianship”. The third case, Worcester v. State of Georgia (1832), completed the foundation of the US claim of a right of domination, called the “ultimate right of domain” over all Native peoples and lands.

Justice Joseph Story, a member of the Marshall court, starkly summarized the claim of a right of domination in his summary of the Johnson decision:

The title of the Indians was not treated as a right of propriety and dominion; but as a mere right of occupancy. As infidels, heathen, and savages, . . . [they] were not allowed to possess the prerogatives belonging to absolute, sovereign and independent nations.

Story concluded with the extraordinary statement that Native “territory . . . was, in respect to Christians, deemed, as if it were inhabited only by brute animals.”

In short, the US ‘federal Indian law’ claim of power over Indigenous peoples rests on the doctrine of ‘Christian discovery’, the colonial claim of a right of domination adopted into US property law by the Supreme Court.

The Vatican itself recently ‘repudiated’ the doctrine and acknowledged the harm it has occasioned. In Haaland v. Brackeen, in sharp contrast, the court strongly affirmed the doctrine in its modern guise as ‘plenary power over Indians’.

One telltale sign of the deep non-Constitutional roots of federal anti-Indian law is that the claim of ‘plenary power’ is identical to the claimed power of popes—plenitudo potestatis, typically translated as ‘fullness of power’. The papal power claim allowed 15^th century popes to authorize colonizing powers “to invade, search out, capture, vanquish, and subdue all Saracens and pagans whatsoever, and other enemies of Christ wheresoever placed, and… to reduce their persons to perpetual slavery, and to apply and appropriate… possessions, and goods, and to convert them to … their use and profit….” (Romanus Pontifex, 1455).

In 1954, the US Justice Department was unabashed in its embrace of Christian colonial domination. It explained to the Supreme Court in Tee-Hit-Ton v. US that “Although the nations of Europe … ceased to recognize the Popes as the source of their titles to newly acquired lands, the new concept of title by discovery was based upon the same idea that lands occupied by heathens and infidels were open to acquisition by the Christian nations.” The Justice Department cited papal bulls and the Bible, as well as Johnson v. McIntosh: “The potentates of the old world found no difficulty in convincing themselves, that they made ample compensation to the inhabitants of the new, by bestowing on them civilization and Christianity, in exchange for unlimited independence.”

In Tee-Hit-Ton, the justices quarreled in conference about whether to mention Christianity in the decision. The 11^th hour deletion of the word “Christian” marks the turning point in Supreme Court history away from open recognition of the religious, racist, colonial roots of ‘federal Indian law’. The Tee-Hit-Ton story deserves its own telling and I have done so and more in Federal Anti-Indian Law: The Legal Entrapment of Indigenous Peoples (Praeger, 2022).

By 2005, the Supreme Court had learned to completely hide the religious basis of the doctrine. Justice Ruth Bader Ginsburg’s opinion in City of Sherrill v. Oneida Nation referred simply to “discovery.” She wrote:

Under the ‘doctrine of discovery,’ . . . fee title to the lands occupied by Indians when the colonists arrived became vested in the sovereign—first the discovering European nation and later the original States and the United States.

In 2020, in McGirt v. Oklahoma, Justice Neil Gorsuch relied on “Christian discovery” doctrine without even using the word “discovery”! Gorsuch referred to the U.S. claim of domination obliquely, calling it the “significant authority” of the United States “when it comes to tribal relations.” His unelaborated citations in McGirt, however, trace directly back to Johnson v. McIntosh. He cited Lone Wolf v. Hitchcock, the 1903 Supreme Court decision that exalted “Christian discovery” into “plenary power over . . . Indians.” He added another unelaborated citation to Emory Washburn’s 1868 Treatise on the American Law of Real Property, which says, “The Christian nations that planted colonies . . . recognized no seisin [ownership] of lands on the part of Indian dwellers.”

This short summary of the origins and arc of ‘federal Indian law’ illuminate what is obscured in celebrations of Haaland v. Brackeen.

CONSTITUTIONALIZING DOMINATION

Justice Amy Barrett’s opinion presents the standard effort to hide federal domination under the fig leaf of the US Constitution, as if that would somehow make it legitimate. Of course, this effort only says that the founders were intent on inserting their claim of a right of domination into the document. Seen plainly, the argument is laughable. It can hardly be relevant to Native nations that the US claim to a right of domination is somehow enshrined in the dominator’s constitution.

Nevertheless, the court has been preoccupied with an effort to constitutionalize the US claim of dominion since the Marshall trilogy itself, where, in Cherokee Nation, Marshall constructed a remarkably obtuse reading of the judicial power clauses in Article III to justify denial of the Cherokee petition for relief from Georgia’s invasion of their lands. I analyze Marshall’s rhetorical moves in Cherokee Nation in my book: Federal Anti-Indian Law: The Legal Entrapment of Indigenous Peoples (Praeger, 2022). Suffice it to say here that Marshall pretended to be doing a close reading of the Constitution, but he did not pay attention to where the crucial words appear. Despite his reputation for rhetorical skill, there was no coherence in his analysis.

More recent constitutional theories try to tie the claim of domination to a contorted reading of the ‘Indian commerce clause’. As Barrett puts it, “While under the Interstate Commerce Clause, States retain ‘some authority’ over trade, … ‘virtually all authority over Indian commerce and Indian tribes’ lies with the Federal Government.” She says that this reading, purportedly based in the ‘intentions of the founders’, prevents the claim of ‘plenary power’ from being ‘free-floating’. Again, who cares about this fig leaf? Only those who are concerned about the emperor’s clothes.

THE RACE QUESTION

The challengers to ICWA raised three kinds of Constitutional challenges. They argued that it exceeds federal authority, infringes state sovereignty, and discriminates on the basis of race. The Brackeen decision upheld ICWA as within the extent of federal authority, i.e., ‘plenary power’, and said the Act was so carefully drafted that it did not infringe state sovereignty.

The court did not rule on the ‘race’ challenge, i.e., that ICWA violates ‘equal protection’, and Justice Brett Kavanaugh took pains to point this out. In fact, there are racial equality challenges already making their way to the court. The issue looms.

‘Equality’ was precisely the goal of US ‘Indian’ policy for a long time. The 1887 Allotment Act is a major example.  As President Theodore Roosevelt said in celebration of the Act in his 1901 State of the Union address:

The General Allotment Act is a mighty pulverizing engine to break up the tribal mass. It acts directly upon the family and the individual. . . . The Indian should be treated as an individual—like the white man.

Roosevelt spoke for all so-called ‘Friends of the Indian’, among whom was Richard Henry Pratt, founder of Carlisle Indian School, the first ‘boarding school’ for Native children forcibly taken from their homes. In a sentence that is now infamous Pratt told the 1892 Annual Conference of Charities and Correction “that all the Indian there is in the race should be dead. Kill the Indian in him, and save the man.”

Pratt kept hammering on this theme and elaborated a theory of ‘racism’ to support his project. He told the 1902 Lake Mohonk Conference of Friends of the Indian that his Carlisle School combated the “racism” of federal policy, which allowed Native nations to exist apart from American society. He said:

Segregating any class or race of people . . . kills the progress of the segregated people . . . Association of races and classes is necessary in order to destroy racism and classism.

The Oxford English Dictionary cites Pratt’s 1902 speech as the first printed use of the term ‘racism’.

Any ‘equal protection’ challenge to ICWA will wade into this thorny history, joining fellow travelers with other campaigns to ‘free’ Native people from the ‘bonds’ of Native nations.

For example, The New Trail of Tears: How Washington Is Destroying American Indians (2016), by American Enterprise Institute resident fellow Naomi Schaefer Riley calls for “equal rights” for “all citizens.” She explicitly aims to separate Indigenous persons, as individuals, from Indigenous peoples. The title of one chapter puts it as “The Tribe vs. the Individual.” Riley actually praises the Dawes Act effort to destroy Indigenous peoples by breaking up communal tribal ownership.

Riley’s rhetoric is a rehash of 1950s -1960s Congressional ‘termination’ policy, which mandated “as rapidly as possible, to make the Indians . . . subject to the same laws and entitled to the same privileges and responsibilities as are applicable to other citizens of the United States” (August 1, 1953, House Concurrent Resolution 108).

A racial critique of ICWA, no matter how ‘plenary’ federal Indian law domination may be, collapses Native peoples into groups of Native persons within a unitary US polity. If it succeeds, there is no space for Tribal nations unless some other foundation besides US domination can be found. I make some suggestions in that regard at the conclusion.

But first let’s look at the effort of Justice Gorsuch to invent an idyllic origin story for US relations with Indigenous nations, through his own reading of the ‘Indian Commerce Clause’.

JUSTICE GORSUCH TRIES TO PAINT LIPSTICK ON DOMINATION

Justice Gorsuch wades into the history of US – Indigenous relations with the rosy view that there was once a kind of golden age, when “our founding document mediate[d] between competing federal, state, and tribal claims of sovereignty.” He acknowledges, as he must, that the federal government “spearheaded” the original “existential threat to the continued vitality of Tribes”, and that it had “dark designs”.

Gorsuch makes a subtle rhetorical move when he says “Native American Tribes … forced onto reservations… understood that life would never again be as it was. … Securing a foothold for their children in a rapidly changing world, the Tribes knew, would require schooling.” The implication is that Native parents somehow acceded to ‘conquest’ and looked to the conqueror for ‘education’ about ‘civilization’. This is an old trope of ‘friends of the Indian’.

Gorsuch is honest enough to admit that these same parents, “Indian families, ‘forced onto reservations at gunpoint,’ … simply believed they had no power to resist.”

For Gorsuch, “This history leads us to the question[s] at the heart of today’s cases: …What authorities do the Tribes possess under our Constitution? What power does Congress have with respect to tribal relations?” He says:

Answering these questions requires a full view of the Indian-law bargain struck in our Constitution. Under the terms of that bargain, Indian Tribes remain independent sovereigns with the exclusive power to manage their internal matters.

But what sort of ‘bargain’ can be said to have been struck by the constitutional drafters with Indigenous peoples? As the Supreme Court itself pointed out in Blatchford v. Native Village of Noatak & Circle Village (1991), the “tribes . . . were not even parties” to the Constitution.

A dictionary definition of ‘bargain’ is “an agreement between two or more parties as to what each party will do for the other”. A ‘bargain’ struck in the US Constitution cannot have included Native nations. It was a ‘bargain’ among competing groups of white men intent on building an empire across the continent.

It is simply gobbledygook for Gorsuch to say, “the Constitution …reflected an understanding that Tribes enjoy a power to rule themselves.” Indigenous nations did not rely on the Constitution and its ‘bargains’ for their self-definition, their “power to rule themselves”.

The core of the Gorsuch concurrence is his particular reading of the Commerce Clause, which he construes as giving congress “authority with respect to three separate sorts of sovereign entities – foreign nations, states, and Indian Tribes.” He says the clause does “not entail the power to eliminate” any of these sovereigns. That’s an odd point to make, since the commerce clause in itself presumes the existence of other entities with which the US may engage in commerce. Why would such a clause say anything about a power of elimination of a trading partner?

Gorsuch’s larger emphasis on there being “no power to eliminate” flies in the teeth of his majority opinion in McGirt v. Oklahoma, another ‘Indian law’ case misunderstood as ‘pro-Indian’. There, he stressed that the Creek Nation exists only because the US Congress has not “disestablished” it, and that Congress could do so “at any time …[with] no shortage of tools at its disposal”. The tools, he made clear, included “even the authority to breach its own promises and treaties.” He relied for that proposition on the notorious decision in Lone Wolf v. Hitchcock, which said:

The right which the Indians held was only that of occupancy. The fee [title] was in the United States… Plenary authority over the tribal relations of the Indians has been exercised by Congress from the beginning… “It is to be presumed that in this matter the United States would be governed by such considerations of justice as would control a Christian people in their treatment of an ignorant and dependent race.”

Now, in Brackeen, putting McGirt behind him, Gorsuch proclaims, “the Constitution safeguards the sovereign authority of Tribes.” He grandly proclaims:

No one can contest the … permissibility of constitutional provisions enacted to protect the Tribes’ “sovereign status.” New Mexico v. Mescalero Apache Tribe (1983). Tuck that point away too.

But before you tuck it away, take a closer look at the case he cites. Mescalero says:

…tribes retain any aspect of their historical sovereignty not “inconsistent with the overriding interests of the National Government.”

Gorsuch reformulates this:

“[t]he only restriction on the power” of Tribes “in respect to [their] internal affairs” arises when their actions “conflict with the Constitution or laws of the United States.”

In plain English, removing the grammatical inversion (“the only restriction”), this says Tribes exist at the sufferance of the US. Hard to call that ‘sovereignty’.

Gorsuch describes this framework as “a hydraulic relationship between federal and tribal authority. The more the former expands, the more the latter shrinks.” But, since federal authority expands at its own will and also sets limits for Tribes, how is this relationship anything but domination?

Gorsuch finally admits that the Constitution “does not include a plenary federal authority over Tribes”. But he then points to “other provisions [that] … facilitated the management of Indian relations. The…power to ‘declare War against the Tribes’ [and the] … authority to ‘dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States,’” which he says, “allows… it considerable power over Indians on federal territory.”

Wait a minute! Set aside the war power as obviously not aimed at ‘protecting’ Tribal sovereignty. How do ‘Indians’ come to exist ‘on federal territory’? The answer to that question can only be answered by reference to Johnson v. McIntosh: The claim of US ‘title’ to all the lands of the continent. This is the foundation of US property claims and the claim of a right of domination over peoples who ‘occupy’ that property.

But Gorsuch doesn’t touch Johnson. No other justice does, either. That decision was already too hot to handle well before the Vatican’s ‘repudiation’.

It gets worse. In Gorsuch’s effort to construct a vision of an idyllic version of the ‘founding’, he defines Tribal communities living in their own territories out of existence! He says:

“Indian Tribes” are not …territorial entities [but rather] …collections of individuals.

Gorsuch says his definition of ‘tribe’ is supported by “founding-era dictionar[ies]”. This would be laughable if it weren’t such a serious matter; the ‘founding-era’ dictionaries are obviously products of the colonizing civilization that opposes the Tribal peoples. The definitions are the views of outsiders to Indigenous reality. This is not a problem for Gorsuch because the colonizer definition of ‘Tribe’ is part of the ‘origin story’ he wants to create, not this time of an idyllic ‘mediation’, but of a federal power over Indigenous peoples, who are here read out of existence as peoples.

With his definition of Tribe, Gorsuch reaches the goal of the infamous allotment and ‘termination’ process — the transformation of Indigenous peoples from territorial communities to collections of individuals, as celebrated by Teddy Roosevelt and the ‘friends of the Indians’.

Although allotment was ended by FDR’s 1934 Indian Reorganization Act, Tribal individualization reared its ugly head again after FDR’s death when congress enacted “termination” programs. These in turn were abandoned in 1970 by Richard Nixon’s “self-determination without termination” program.  Gorsuch’s definition of Tribes throws ‘Indian policy’ back into designs he earlier identified as “dark”.

Colonial dictionaries did not incorporate the experiences of colonial people who lived among Native peoples. James Axtell, in The Invasion Within: The Contest of Cultures in Colonial North America (1985) summarized what such people said about their experiences:

They found Indian life to express a strong sense of community, abundant love, and uncommon integrity . . . [as well as] social equality, mobility, adventure . . . the most perfect freedom, . . . ease of living, the absence of . . . corroding solicitudes.

The earliest contacts between colonial invaders and Native peoples illustrate Axtell’s point. The Puritans were embarrassed by the fact that so many of their kind fled to the Indians, while so few Native people wanted to adopt Puritan life.

Sebastian Junger, in Tribe: On Homecoming and Belonging (2016), quotes Ben Franklin bemoaning that:

White captives “liberated from the Indians” and returned to “stay among the English . . . take the first good opportunity of escaping again” to their Native communities. On the other hand, … “When an Indian child has been brought up among us…if he goes to see his relations…there is no persuading him ever to return.”

Junger recounts that when Colonel Henri Bouquet, a Swiss mercenary under British general Jeffrey Amherst attacked Odawa chief Pontiac’s forces (after delivering smallpox-infected blankets to Fort Pitt) he demanded the return of White “captives”. Bouquet reported that Native families had to bind those people and forcibly bring them in. Many later escaped and returned to the Native communities where they had come from.

Junger says colonials gravitated to the “intensely communal nature” of Indian life: Not only the “rough frontiersmen,” as he puts it, but also “the sons and daughters of Europe” were drawn to the natural sociability of Indian life and against “the material benefits of Western civilization.” He quotes the French immigrant writer Hector Saint John de Crèvecoeur, saying:

Thousands of Europeans are Indians, and we have no examples of even one of those Aborigines having from choice become European. There must be in their social bond something singularly captivating and far superior to anything to be boasted of among us.

Gorsuch, having defined away the communal existence of Indigenous peoples in his effort to write an idyllic origin story for the US, abruptly turns a corner and says, “Nothing in the [Commerce] Clause grants Congress the affirmative power to reassign to the federal government inherent sovereign authorities that belong to the Tribes.” This U-turn takes us straight down the rabbit hole: How can there be a ‘sovereign Tribe’ if ‘Tribes’ are only ‘collections of individuals’?

Gorsuch bemoans the “atextual and ahistorical plenary-power move …[that] expand[ed] the scope of federal power over the Tribes.” He says, “That error sent this Court’s Indian-law jurisprudence into a tailspin from which it has only recently begun to recover.” He adds, “the rise of the plenary-power theory injected incoherence into our Indian-law jurisprudence.” Gorsuch’s ‘now you see it, now you don’t’ approach to ‘Tribal sovereignty’ is evidence of continuing tailspin and incoherence.

At bottom, despite gushing praise of his concurrence as a “soaring opinion steeped in history…demonstrate[ing] a distinctive dedication to Native American rights,” Gorsuch’s opinion positions him solidly within the framework of US domination.

UNDOING THE DOMINATION

Put as simply as possible, federal anti-Indian law embodies the claim to ‘title’ that the United States needs in order to make its claim of continental sovereignty. Disavowing the claim of a right of domination over Indigenous peoples and lands would necessarily involve a reconfiguration of US ‘sovereignty’ claims.

The starting point is to overrule Johnson v. McIntosh and discard the foundation doctrine of ‘Christian discovery’. This step can be taken proactively, rejecting the doctrine as the basis for further land appropriation and other acts of domination, much the same as the 1954 Brown v. Board of Education decision removed the doctrine of “separate but equal” from the structure of US laws about ‘equal protection’.

One might think that this goal was already accomplished by the 2007 United Nations Declaration on the Rights of Indigenous Peoples, which says in Article 26:

1. Indigenous peoples have the right to the lands, territories and resources which they have traditionally owned, occupied or otherwise used or acquired.

2. Indigenous peoples have the right to own, use, develop and control the lands, territories and resources that they possess by reason of traditional ownership or other traditional occupation or use, as well as those which they have otherwise acquired.

But two obstacles exist:

First, the UN Declaration does not provide a self-executing platform upon which Indigenous Peoples may invoke international legal protections for their lands and societies. Provisions of the Declaration depend on decisions made by member states of the United Nations.

Second, President Barack Obama’s administration made clear in its ‘signing statement’ that US support for the Declaration had meaning only within the existing US ‘federal Indian law’ framework. It pointedly singled out the Declaration Article 32 requirement that Indigenous peoples must give “free and informed consent prior to the approval of any project affecting their lands or territories and other resources, particularly in connection with the development, utilization or exploitation of mineral, water or other resources”.

The Obama statement then said Article 32 is only a

…call for a process of … consultation with tribal leaders, but not necessarily the agreement of those leaders, before the actions addressed in those consultations are taken.

In the ‘federal Indian law’ lexicon, “consent” does not mean “agreement”.

A second step to undoing the domination matrix is to account for damages caused by it over the years. This would include retroactive payments for land ‘takings’ beyond the minimalist ‘time of taking’ rule imposed in the Indian Claims Commission process. Where ‘taken’ land is still in the hands of the US government, it could be transferred outright. Where no agreement about a restoration of land ownership is feasible, ongoing payments akin to ground rent might be called for.

Accounting for damages would also include compensation for intergenerational trauma inflicted by US domination. One model for this is the 2019 Canadian Human Rights Tribunal order that the government provide compensation for Indigenous children removed from their families by the ‘residential school’ system.

I offer these starting points to provoke the kind of strategy discussions that Thurgood Marshall undertook in his long and successful campaign to overrule Plessey v. Ferguson and eradicate “separate but equal” doctrine from US law.

The Yakama Nation amicus brief in Washington State v. Cougar Den provides an example of how an argument for overruling ‘Christian discovery’ doctrine can be framed within existing Supreme Court practice. The brief said:

This doctrine of domination and dehumanization—Christian discovery—is not welcome within Yakama Territory, and should no longer be tolerated in United States law. …

We call on this Court to repudiate the doctrine of discovery, and in this case and all future cases involving our inherent sovereignty and Treaty-reserved rights, rely on the solemn promises made between the United States and the Yakama Nation….

The court ruled in favor of the Yakama but did not take up the task of repudiating the doctrine in all future cases.

WHAT ABOUT THE CHILDREN AND ADOPTION?

If the doctrine of domination were revoked and Indigenous nations acknowledged as the free and independent nations they rightfully are, questions of adoption would be handled exactly as they are for all other “intercountry adoptions” under the 1993 Hague Convention on Protection of Children and Co-operation in Respect of Intercountry Adoption.

The Hague Convention does not invoke any claim of domination by one country over another. The adoption framework it provides meets all the concerns stated by the parties and amici in Haaland v. Brackeen. The Convention preamble reads:

Recognising that the child, for the full and harmonious development of his or her personality, should grow up in a family environment, in an atmosphere of happiness, love and understanding,

Recalling that each State should take, as a matter of priority, appropriate measures to enable the child to remain in the care of his or her family of origin,

Recognising that intercountry adoption may offer the advantage of a permanent family to a child for whom a suitable family cannot be found in his or her State of origin,

Convinced of the necessity to take measures to ensure that intercountry adoptions are made in the best interests of the child and with respect for his or her fundamental rights, and to prevent the abduction, the sale of, or traffic in children,

Desiring to establish common provisions to this effect, taking into account the principles set forth in international instruments, in particular the United Nations Convention on the Rights of the Child, of 20 November 1989, and the United Nations Declaration on Social and Legal Principles relating to the Protection and Welfare of Children, with Special Reference to Foster Placement and Adoption Nationally and Internationally (General Assembly Resolution 41/85, of 3 December 1986)….

Nothing more would be needed; certainly, no US ‘protection’.

The issue in the Brackeen case is whether the Indian Child Welfare Act (ICWA) is constitutional. Some observers are fearful the Supreme Court will use the case to attack the notion of “tribal sovereignty” by applying “race theory” to characterize Indigenous peoples, in contrast to an approach that sees Indigenous peoples as “political” entities quasi-separate from the US. A racial approach would collapse Native peoples into groups of Native persons within the US polity.

The effort to bring about a collapse of Indigenous independent existence has been long underway. Indeed, this effort begins with the first Supreme Court decisions in the field — the so-called “Marshall trilogy,” named after the chief justice who authored the opinions. A doctrinal matrix of federal anti-Indian law domination was laid down in these three early nineteenth-century cases.

The decisions may be restated succinctly: In Johnson v. McIntosh, the court adopted the fifteenth-century doctrine of “Christian discovery” and declared that the United States holds title to all Native lands. It said that the Natives themselves are merely occupants. In Cherokee Nation v. State of Georgia, the court built on the Johnson decision to define Native Nations as “wards” under the control of a US “guardian”. It denied that Native Nations have an international status. In Worcester v. Georgia, the court capped the previous two decisions with an assertion that the federal government has supreme power vis-a-vis the states over Native lands and peoples. It defined a domain of “internal affairs” of Native nations for “their self-government so far as respected themselves only” under “exclusive” federal control of lands.

These three decisions continue to be cited in “federal Indian law” cases at all levels of the U.S. judicial system. Their anti-Indian orientations are, however, submerged in widespread wishful thinking that John Marshall somehow crafted a set of doctrines to “protect” Indigenous peoples against the US by declaring the US a “trustee” for them. As I make clear in my recent book: Federal Anti-Indian Law: The Legal Entrapment of Indigenous Peoples (Praeger – ABC-CLIO, 2002), the so-called “trust doctrine” is a perversion of normal trust law. It operates as a massive “exception” to the ordinary rules governing trust relationships. “Exception” in fact characterizes all the doctrines in the field.

The fracturing of the Fifth Circuit Court of Appeals in its effort to decide Brakeen in 2021 demonstrates the deep confusion and contradiction (some say schizophrenia) that characterize the application of these fundamentally anti-Indigenous doctrines in their disguise as “federal protection”.

Sixteen circuit judges, two short of the entire bench, issued a total of 325 pages of conflicting and overlapping opinions trying to decide a case about the constitutionality of the Indian Child Welfare Act and the validity of implementing regulations promulgated by the Bureau of Indian Affairs. A narrow area of agreement produced an en banc majority for a limited range of issues, beyond which was judicial chaos. The chaos is demonstrated by a list of how the judges divided along the two principal opinions.

Judge Dennis’ opinion said:

…ICWA also falls within Congress’s “plenary powers to legislate on the problems of Indians” in order to fulfill its enduring trust obligations to the tribes. …Indeed, the congressional findings in the statute expressly invoke this “responsibility for the protection and preservation of Indian tribes and their resources” and state “that the United States has a direct interest, as trustee, in protecting Indian children.” …. The law was intended to combat an evil threatening the very existence of tribal communities, and it would be difficult to conceive of federal legislation that is more clearly aimed at the Government’s enduring trust obligations to the tribes. Moreover, it fulfills the government’s duty to protect the tribes from the states by regulating relations between the two—a power that the Framers specifically intended that the Constitution bestow on the federal government….(“The central policy … was one of separating Indians and non-Indians and subjecting nearly all interaction between the two groups to federal control.”)

Brackeen v. Haaland, 994 F.3d 249, 305–06 (5th Cir. 2021), cert. granted sub nom. Nation v. Brackeen, 212 L. Ed. 2d 215, 142 S. Ct. 1204 (2022), and cert. granted, 212 L. Ed. 2d 215, 142 S. Ct. 1205 (2022), and cert. granted sub nom. Texas v. Haaland, 212 L. Ed. 2d 215, 142 S. Ct. 1205 (2022), and cert. granted, 212 L. Ed. 2d 215, 142 S. Ct. 1205 (2022)

Judge Duncan’s opinion said:

…the question before us… is whether Congress may use its Indian affairs power to regulate a state’s own child-custody proceedings. As already observed, the fact that Congress’s power goes beyond regulating tribal trade begs the question whether it allows Congress to regulate state governments. Also beside the point is the fact that Congress’s power was intended to exclude state authority over tribes. This prevented states from, for instance, nullifying federal treaties securing Indian lands. That evidence would be relevant if the issue were whether ICWA could exclude state courts from adoptions involving tribe members. … But ICWA presents the opposite scenario: it seeks to force federal and tribal standards into state proceedings. Amici point us to no founding-era evidence even suggesting Congress thought its Indian affairs power extended that far. The most pertinent example of Indian legislation from the first Congress—the Trade and Intercourse Act—addresses various aspects of the federal government’s relationship with Indians. It says nothing about regulating a state’s own proceedings that involve Indians.

Brackeen v. Haaland, 994 F.3d 249, 385–86 (5th Cir. 2021), cert. granted sub nom. Nation v. Brackeen, 212 L. Ed. 2d 215, 142 S. Ct. 1204 (2022), and cert. granted, 212 L. Ed. 2d 215, 142 S. Ct. 1205 (2022), and cert. granted sub nom. Texas v. Haaland, 212 L. Ed. 2d 215, 142 S. Ct. 1205 (2022), and cert. granted, 212 L. Ed. 2d 215, 142 S. Ct. 1205 (2022)

Neither of these opinions garnered a majority. As I discuss in my book, the splits among the judges is a sign of deep crisis (and chaos) in the field. Following is the breakdown of joinders for the two principal opinions; once you see the crazy-quilt of intersecting legal arguments and doctrines, feel free to skip ahead:

Joinders to the Dennis opinion:

James L. Dennis, Circuit Judge; Judges Stewart and Graves join this opinion in full. Judges Wiener, Higginson, and Costa join all except Discussion Part I.A.2 (standing to bring equal protection claims other than the challenges to 25 U.S.C. §§ 1913-14).

Chief Judge Owen joins Discussion Parts I.A.1 (standing to challenge §§ 1913-14), I.C (standing to bring anticommandeering claims), II.A.2.a.1 (anticommandeering challenge to §§ 1912(e)-(f) and 1915(a)-(b) as they pertain to state courts), and II.C (nondelegation). She further joins Discussion Part I.D (standing to bring nondelegation claim) except as to the final sentence. See infra Owen, Chief Judge, Op.

Judge Southwick joins Discussion Parts I.A.1 (standing to challenge §§ 1913-14), II.A.1 (Congress’s Article I authority), II.B (equal protection), and II.C (nondelegation). He further joins in-part Discussion Parts II.A.2 (anticommandeering) and II.D (APA challenge to the Final Rule), disagreeing to the extent the analyses pertains to § 1912(d)-(f) and the regulations that implement those provisions.

Judge Haynes has expressed her partial concurrence in her separate opinion. See infra Haynes, Circuit Judge, Op.

Joinders to the Duncan opinion:

Stuart Kyle Duncan, Circuit Judge; Judges Smith, Elrod, Willett, Engelhardt, and Oldham join Judge Duncan’s opinion in full. Judge Jones joins all except Parts III(A)(2) (equal protection as to “Indian child”) and that portion of Part III(B)(2)(a) concerning preemption by the appointed counsel provision in 25 U.S.C. § 1912(d).

Chief Judge Owen joins Part III(B) (anti-commandeering/preemption) and Part III(D)(3) (“good cause” standard in 25 C.F.R. § 23.132(b) violates APA). See infra Owen, C.J., concurring in part and dissenting in part.

Judge Southwick joins Parts III(B)(1)(a)(i)–(ii) (anti-commandeering as to § 1912(d)–(f)); Part III(B)(2)(a) (preemption); Part III(B)(2)(b) (in part) (no preemption, only as to § 1912(d)–(f)); Part III(B)(2)(c) (in part) (preemption, except as to the discussion of § 1951(a)); and Part III(D)(1) (in part) (Final Rule violates APA to extent it implements § 1912(d)–(f)).

Judge Haynes joins Part I (standing); Part III(A)(3) (equal protection as to “other Indian families”); Parts III(B)(1)(a)(i), III(B)(1)(a)(iv), III(B)(1)(a)(ii) (in part), III(B)(1)(b) (in part), and III(B)(2)(b) (in part) (anti-commandeering/preemption as to §§ 1912(d)–(e) and 1915(e)); Part III(D)(1) (in part) (Final Rule violates APA to extent it implements provisions found unconstitutional in those portions of Parts III(A) and (B) that Judge Haynes joins); and Part III(D)(3) (“good cause” standard in 25 C.F.R. § 23.132(b) fails at Chevron step one). See infra Haynes, J., concurring.

As to what the Supreme Court may do in Brackeen, my book discusses a 5th amendment theory they might use to say that ICWA is “not tied rationally” to Congress’ “unique obligation toward the Indians”:

In United States v. Alcea Band of Tillamooks (1946), the Court said, “The power of Congress over Indian affairs may be of a plenary nature but it is not absolute.” That line was quoted in Delaware Tribal Business Committee v. Weeks (1977), when the Court said that it would “scrutiniz[e] Indian legislation to determine whether it violates the equal protection component of the Fifth Amendment.”

As Robert Miller put it, the Delaware Tribal Business decision called for “the lowest level of judicial constitutional review—rational basis review.” He added, “Notwithstanding that level of judicial review . . . no act of Congress has ever been overturned for exceeding its plenary power in the Indian law arena.” {Robert J. Miller, “The Doctrine of Discovery in American Indian Law,” Idaho Law Review 42, no. 1 (2005): 105.} This is not surprising because, to the extent that the Alcea language survived …, the Delaware Tribal Business decision made clear that the supposed constitutional limit on plenary power, the “special treatment” of Native peoples, is tied to the plenary power exception itself—“Congress’ unique obligations”!

Federal Anti-Indian Law, p. 82.

Using the Delaware Tribal Business language in Bracken would limit the supposed ‘plenary power’ of Congress not as against ’tribes,’ but as against states in relation to tribes. This is complex, but certainly no more so than other convolutions that make up the field.  

If the Supreme Court does dive into race theories in Brackeen rather than limiting itself to a discussion of the extent of ‘plenary power’, the decision may finally break the illusion in the field that ’trust doctrine’ means anything other than a mask for the federal domination of Indigenous peoples. That could have a salutary effect equivalent to Thurgood Marshall’s realization that “separate but equal” was a malicious doctrine, not designed for “the promotion of … comfort and the preservation of the public peace and good order,” as it was characterized in Plessy v. Ferguson.

A comparable realization of the maliciousness of federal anti-Indian law will support challenges to “plenary power,” “trust,” and related doctrines rooted in the doctrine of “Christian discovery” established in the Marshall trilogy. Such challenges have been made. The 2019 Yakama Nation amicus brief in Washington State Department of Licensing v. Cougar Den, Inc., is a major example. The Yakama attacked the Christian discovery premise of federal anti-Indian law that underlay Washington’s position and was also defended by the United States in an amicus on behalf of the state. (So much for the “trust” relationship!) The Yakama brief said that Washington’s legal arguments were based on “the religious, racist, genocidal, fabricated doctrine of Christian discovery”:

Under that doctrine, this Court judicially manufactured an extra-constitutional congressional plenary authority to abrogate treaties and regulate Native Nations. This manufactured authority rests on the false assertion that our sovereignty and free and independent existence were “necessarily diminished” upon Christian European arrival on the North American continent [as stated in] Johnson v. McIntosh. . . . For nearly two centuries this Court has dehumanized original, free, and independent Nations and Peoples by issuing decisions and using language consistent with the doctrine’s religious and racist foundations—e.g., red man, uncivilized, barbarous, ignorant, unlearned, non-Christians, heathens, savages, infidels—all in an effort to manufacture a legal basis for the physical and cultural genocide of Native Peoples.

Brief of Amicus Curiae, Confederated Tribes and Bands of the Yakama Nation in Support of Respondent, Washington State Department of Licensing v. Cougar Den, Inc., 139 S. Ct. 1000, 2018 WL 4739661, at *5–6

The Yakama then offered the Supreme Court an “opportunity to repudiate the doctrine of Christian discovery.” They pointed out the fact that other “troubling decisions throughout history have . . . been repudiated,” as occurred with the “separate but equal” doctrine. They called on the court “to repudiate the doctrine of discovery . . . in this case and all future cases.”

The Supreme Court ruled for Cougar Den under the Yakama Treaty. It rejected the state and US arguments in two separate opinions: one by Justice Stephen Breyer (joined by Justices Sonia Sotomayor and Elena Kagan) and another by Justice Gorsuch (joined by Justice Ruth Bader Ginsburg). Both opinions cited the Yakama amicus brief to clarify the meaning of the 1855 treaty but neither opinion discussed the Christian discovery question. In fact, even the dissenting justices avoided talking about Christian discovery, focusing on treaty language instead.

The Brackeen case is a significant moment in the development of federal anti-Indian law. However the court decides it, we would do well to take stock of the relationship between Indigenous peoples and the US and seek a way forward that does not rest on and arise from colonial domination disguised as “protection”.