At stake: Native American sovereignty


With the nation’s attention focused on abortion, gun safety, and religious liberty, and more recently the lengthy struggle in the House of Representatives to choose a new speaker, one issue that may have escaped notice is a challenge to Native American sovereignty. 

Because so many Islanders are members of the Wampanoag tribe, the outcome in a case before the Supreme Court may well directly affect their lives.

At issue is the constitutionality of the Indian Child Welfare Act (ICWA), passed in 1978. Congress acted to ensure that Native American children who are adopted or sent to foster care remain with Native American families. The law resulted from considerable evidence that public and private agencies were assigning these children to non-native families through adoption or foster care, or when parental rights were terminated. Some 75 to 80 percent of Native American families experienced this phenomenon.

According to the Montana Department of Health and Human Services, the law was designed “to protect the best interests of Indian children and to promote the stability and security of Indian tribes and families.” The act provided that tribal courts possessed sole jurisdiction over proceedings involving the placement of children when they resided on a reservation or tribal land.

The history of state and federal governments’ removal of children from tribes to boarding schools and other institutions is replete with ghastly stories of mistreatment and abuse — even death. According to the Department of the Interior, tens of thousands of Native American children “were compelled to change their names, they were starved and whipped, and made to do manual labor between 1819 and 1969.”

But what would happen when a Native American child who does not reside on tribal land or a reservation becomes the subject of removal? In 1989, this question came before the Supreme Court in Mississippi Band of Choctaw Indians v. Holyfield. The case was limited: It did not challenge the law, but only the specific circumstances of Native American twins who were not born on or ever lived on tribal land or a reservation. They were put up for adoption 200 miles away from the reservation by their Native American parents, who were unmarried. A state court approved the adoption by Orrey and Vivian Holyfield, a non–Native American couple.

The tribe filed suit, claiming its tribal court had exclusive jurisdiction over the children according to the ICWA. In a six-to-three decision, the Supreme Court ruled that states must consider such children “domiciled” on a reservation or tribal land, even if they never lived there. Congress intended these children to remain with Native American families. State courts may not interfere with congressional intent.

In 2012, a year before his death, Justice Antonin Scalia, who joined the majority in favor of the tribe, wrote that this case was the toughest one he had experienced. The child in the case was 5 years old when the case reached the court. Scalia recalled, “We had to turn that child over to the tribal council. I found that very hard. But that’s what the law said, without a doubt.”

And now, a case is before the justices that challenges the law’s constitutionality.

The current dispute involves four consolidated cases. In the lead case, Haaland v. Brackeen, heard last November, a Texas couple adopted a 10-month-old Navajo boy after his mother was found to be using drugs. The Navajo Nation, along with other tribes, challenged the adoption under the ICWA, and a federal district court declared the law unconstitutional. A divided federal appellate court ruled that part of the act infringed on states’ rights under the 10th Amendment: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”

Led by the Secretary of the Interior, Deb Haaland, the first Native American cabinet head, the U.S. appealed to the Supreme Court.

There are four major constitutional questions. One is whether Congress violated the 10th Amendment.

Another is whether Congress overstepped its authority to “regulate commerce among the several tribes.” Challengers argue that children are not articles of commerce. Besides, states have long regulated child custody cases in an area where the federal government lacks authority. In defending the law, the Biden administration contends that Native American children have long been a concern of the federal government, and that the commerce power authorizes Congress to regulate all interactions between Native and non–Native Americans.

The third is whether the law violates the Equal Protection clause, which prohibits social distinctions based on race, sex, or ethnicity. The administration claims that the issue is political, not social, because tribal membership protects children by preventing their unwarranted separation from their families. The adoptive families counter that the law is based on race, not politics, because the subjects are Native American.

Finally, the court must determine whether Congress unconstitutionally delegated its authority to Native American courts.

These cases present complicated and emotional issues: Recall Scalia’s frustration in the earlier one. During oral argument, Justice Samuel Alito was baffled, saying, “Honestly, I don’t know how to answer this question.” 

The outcome will have repercussions across the U.S. and on the Island. We can expect a decision by June.


Jack Fruchtman, who lives in Aquinnah, is the author of “American Constitutional History,” now in its second edition.