Members Only | March 3, 2022 | Reading Time: 4 minutes

Worried about Ukraine’s sovereignty? Then worry about Native tribal sovereignty, too

Federal law recognizes the political identity of indigenous peoples. But a conservative case, soon under SCOTUS review, could change that.

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This week everyone is talking about the sovereignty of nations. Everyone is standing with Ukraine and horrified by Putin, because Ukraine is a sovereign independent nation and the Russian army invaded for no reason. 

There have been a lot of jokes that Putin’s justifications of the invasion are the same as if Mexico invaded the United States because it used to control Texas. These jokes highlight how ridiculous Putin’s claims are. They point out that you cannot invade another country because the land used to be part of your country. 

These arguments have a point, and obviously Putin’s invasion violates all kinds of international law, but we seem to be missing that sovereignty isn’t the magic bullet to protect a society in the way the jokes seem to assume. 

Tribal sovereignty is currently under attack in this country with multiple Supreme Court cases considering arguments that would legally weaken the sovereignty and self-determination of Native Americans. This week the court agreed to hear a challenge to the Indian Child Welfare Act (ICWA) in Brackeen v. Haaland. These attacks aren’t military but they seek to weaken sovereignty.

The conservative challenge to ICWA uses the Equal Protection Clause to argue that any different treatment of Native Americans by the government is unconstitutional. Native Americans define themselves as a political identity, not a racial one, so the Equal Protection Clause shouldn’t apply. 


The conservative challenge to ICWA uses the Equal Protection Clause to argue that any different treatment of Native Americans by the government is unconstitutional. Native Americans define themselves as a political identity, not a racial one, so the Equal Protection Clause shouldn’t apply. 


However, if this challenge is successful, it would likely have far reaching implications beyond the Indian Child Welfare Act. Tribes have sovereignty as political entities, not as racial ones, so if the Equal Protection Clause supports striking down ICWA, tribal sovereignty as a whole is in danger.

Rebecca Nagle, citizen of the Cherokee Nation, explained to me that, “Anything that feeds this argument that Native identity is based on racial biology, rather than a political status as citizens of tribes, feeds this far-right attack on our tribes.” 

Tribes are separate sovereign nations, not a racial identity. 

Maggie Blackhawk, co-director of the NYU-Yale American Indian Sovereignty Project, wrote on Twitter that race is irrelevant to this case and that Indian child removal programs were always about “disempowering Native nations — solving the “Indian problem” by removing the national identity that parents can instill.”

Obviously, the United States ignored tribal sovereignty long before we became a country. Aside from military engagement, federal policy regularly ignored the fact that tribes were sovereign nations. 

In 1830, Andrew Jackson signed the Indian Removal Act to remove native tribes from ancestral lands in the eastern US to areas out west. After decades of violent engagement with the US military and with those living on the frontier, the US passed the Dawes Act in 1887. The Dawes Act was an attempt at forcing assimilation into Indian tribes through colonialist projects on reservations. In particular the act wanted to “allot” 160 acres of land to each family that would split collective tribal lands in favor of individual ownership. 


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The Indian Child Welfare Act was passed in 1978 as a response to the federal colonialist policies that specifically targeted Native children. The first Indian boarding school was built in 1860. In 1891, Congress passed the first mandatory attendance law requiring Native children to go to either a reservation day school or a boarding school. Congress passed another law in 1898, because the first was not strictly enforced. The boarding schools in particular were an attempt to “kill the Indian, save the man” by forced assimilation and cultural erasure. 

The attacks on tribal sovereignty continued long after World War II and international consensus on human rights, genocide and sovereignty. 

In 1958, the federal government established the Indian Adoption Project. It removed up to one-third of native children from their families and tribal communities. Children were removed by child welfare for minor reasons, like a rash or being left at a babysitter’s home. Eighty-five percent of removed children were placed in non-Indian homes with little no due process or recourse.

In response to these devastating policies, the Congress passed the Indian Child Welfare Act in 1978 to end at least one aspect of these colonialist programs. 


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The intent of ICWA was to “protect the best interests of Indian children and to promote the stability and security of Indian tribes and families.” ICWA requires that if a child needs a child welfare placement, all efforts must be made to keep the child with their family, or their tribe, and to involve the child’s family and tribe in the welfare proceedings. ICWA has been labeled the “gold standard” for child welfare proceedings even outside Indian country because it prioritized family and community connection for children.

Despite the praise for ICWA and the support from within Indian country, conservatives claim the law is discriminatory to native children and to prospective non-native adoptive parents. 

Rather than acknowledging the political identity of tribes and their need for tribal sovereignty, these conservative arguments claim native children are being subject to different rules based on their race and that non-native adoptive parents are similarly being discriminated against based on race. 

This argument reframes federal legal protections for tribes as being a result of racial distinctions rather than an acknowledgment of sovereign nations. 


However, if this challenge is successful, it would likely have far reaching implications beyond the Indian Child Welfare Act. Tribes have sovereignty as political entities, not as racial ones, so if the Equal Protection Clause supports striking down ICWA, tribal sovereignty as a whole is in danger.


Last year, the Fifth Circuit struck down some portions of ICWA without striking down the whole law. Considering the current make-up of the Supreme Court, it’s hard to believe they won’t side with the conservative argument and strike down this important piece of legislation. 

However, based on the Fifth Circuit’s ruling, it’s possible that, even if SCOTUS strikes down part or all of ICWA, they won’t redefine Native identity through race. 

This result would definitely weaken tribal sovereignty, particularly in relation to child welfare, but might not have such a far reaching effect as to threaten the entirety of tribal sovereignty as a political identity. 

If we’re all so concerned with the sovereignty of Eastern European nations, I hope we can also apply that support to tribal nations in our backyard. 

To learn more about the challenges to ICWA make sure to listen to Rebecca Nagle’s podcast This Land


Mia Brett, PhD, is the Editorial Board's legal historian. She lives with her gorgeous dog, Tchotchke. You can find her @queenmab87.

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