State governments refused to provide welfare benefits to Natives. Why? Natives were not citizens until the 1920s, states lacked taxation power and jurisdiction in Indian Country. States argued that the federal-tribal political relationship meant Natives were a federal problem. /5
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Replies
#SCOTUS
hears oral argument today in Brackeen, a constitutional challenge to the Indian Child Welfare Act; the Court could use
#Brackeen
to undermine the foundations of Indian law. Plaintiffs argue that ICWA is unconst'l race discrimination and that it violates states' rights. /1
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Plaintiffs' arguments are baseless. The Supreme Court has long held that the category of "Indian" is one of politics and not race, and the welfare of Native children was never a traditional state function. The history of ICWA makes these distinctions all the more clear. /2
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From the Founding, Native children were under the jurisdiction of tribal governments--as recognized by the federal government, which oversaw Indian affairs and the relationship between Native nations and the states. State gov. weren't offered jurisdiction until the 1920s. /3
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When the federal government closed the boarding schools, it tried to convince the states the oversee the welfare of Native families and children. The states refused, arguing that Native children were the exclusive responsibility of the federal government. /4
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The federal government contracted with the states and paid for Native child welfare entirely. When state governments grudgingly accepted responsibility for Native children, they took the least cost solution: place poor Native children in middle-class homes that had money. /6
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Over the 1950s and 1960s, state govs. removed 25-35% of all Native children from their families, homes, and communities. This wasn't about "race," it was about the economics of a poor community that because of its political status as sovereign wasn't part of the state polity. /7
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Congress passed ICWA in 1978 to shift course from decades of state-federal contracts (contracts that included similar placement preferences for Native families and communities) and to instead reaffirm the power of tribal governments to oversee the welfare of their own children./8
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State governments had failed to protect Native children and treated them as an unwelcome burden to state coffers. ICWA said, to the extent that states want to continue to act in this area of federal power, state govs. *must* *finally* adhere to minimum standards of removal. /9
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Federal oversight and removal standards were nothing new to state governments; the states had signed on federal-state contracts requiring the same oversight/standards for decades. ICWA does not intrude on traditional state power. Nor does ICWA deal with "race."/10
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"Indian" in ICWA referenced the same political status that states used to refuse jurisdiction over Natives. Being "Indian" is akin to being a foreign or dual national. ICWA resembles laws like the Vienna Convention that also require states to provide notice/keep records./11
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More on this history from our brief:
Listen in to oral argument at 10 am ET here:
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