Document Type
Article
Disciplines
Indigenous, Indian, and Aboriginal Law
Abstract
In June 2023, the Supreme Court upheld the constitutionality of the Indian Child Welfare Act (ICWA) of 1978 in Haaland v. Brackeen, making it harder for (some) Indigenous families and communities to lose their children. The decision left one key question unanswered, however: whether protections specifically for American Indian households served as an illegitimate “racial” preference. Justice Amy Coney Barrett’s opinion for the majority argued that the petitioners lacked standing to raise this issue. Thus, the Court left the door open to continuing challenges by those who have an interest in using ICWA’s cute children and clean-cut evangelical Christian parents to try to put an end to this and all related statutes that give so-called “preferential treatment” to American Indians—including in gaming compacts, employment, federal treaties, and essentially all of Indian law.
This Essay argues for the importance of history broadly and critical adoption studies in particular in understanding the stakes in ICWA. Part I shows that recent scholarship in critical adoption studies elucidates the ways the two sides in these cases narrate adoption as either a sweet and generous act or as belonging to a history of taking Indigenous (and other racially minoritized) children. These are common narrative strategies, but the focus on adoption as charity is misleading. Part II locates Brackeen in relation to the rising power of the political right, noting that the right has overlapping interests in first, overturning Morton v. Mancari, which found that tribal nations are political entities, not racial groups, and hence their members can be accorded different status than the citizens of states, and second, in challenging dominant theories of race and reproduction that constitute a view of the United States as a multiracial democracy. Part III argues that the efforts to tell a neutral story about the history of ICWA—that it was a response to high rates of child separation—obscures the activism by Indigenous peoples that resulted in the passage of the Act, and hence the stakes of the debate itself.
Recommended Citation
Briggs, Laura, "Haaland v. Brackeen and Mancari: On History, Taking Children, and the Right-Wing Assault on Indigenous Sovereignty" (2024). Connecticut Law Review. 608.
https://digitalcommons.lib.uconn.edu/law_review/608