Colonialism Continues as Supreme Court Eyes ICWA

By El Camarada and Auberon

In June 2016, two white evangelical Americans, Chad, and Jennifer Brackeen, attempted to adopt a 10-month-old Navajo boy after his Navajo mother was found to be using illegal drugs.[1] What followed was a slew of court cases debating the legality and implementation of Congress’s 1978 Indian Child Welfare Act (ICWA).

The issue centers around the legality of the ICWA, which gives the 574 federally recognized tribes by the Bureau of Indian Affairs (BIA) a large amount of exclusive jurisdiction in cases concerning child custody on reservations. ICWA was enacted in part as a response to the settler-colonial legacy of Indian boarding schools on indigenous families and nations, in no small part due to the Dawes Act. The Dawes Act played a significant role in the history of settler colonialism in the United States, as it was a deliberate effort to dispossess Indigenous peoples of their lands and to force them to assimilate into American culture, resulting in the loss of 90 million acres (36 million hectares) of Native lands from 1887 to 1934 — the equivalent of two-thirds of all tribal landholdings at the time, as well as the erasure of traditional Indigenous cultures, languages, and social structures, often incompatible with capitalism.[1]

Indian boarding schools were first established in the United States in the late 19th century, around the same time as the Dawes Act, and were initially created as part of this state-sanctioned assimilation. These boarding schools forcefully removed indigenous children from their families and communities, with many of these children being subject to trauma, abuse, and oftentimes death.[2] The ICWA effectively gives the tribal governments some ability to insert themselves as a party to any adoptions or child custody cases where native children are involved, allowing for greater control and protection of their communities from continued genocide at the hands of the US government.

The Brackeens were unsuccessfully challenged by the Navajo nation at once when they adopted the Navajo boy, and then challenged again by his extended family members whenever the Brackeens attempted to adopt the Navajo boy’s sister. The Brackeens then sued in federal court to overturn the ICWA on the grounds that they were “racially discriminated” against in the adoption process. The legal process was long and turbulent. Starting on November 7th, 2019, over 486 Indian tribes, 59 American Indian organizations, and 26 states filed amicus briefs in support of the ICWA. On April 6th, 2021, the court issued an opinion that at least one part had standing to bring the suit, with a majority of appellate judges holding that Congress had the authority to pass the ICWA. On February 28th, 2022, the Supreme Court granted four petitions from the United States, the State of Texas, the Cherokee Nation, and the Brackeens, and consolidated other cases germane to the issue into one case: Deb Haaland, Secretary of the Interior, et al. v. Chad Everet Brackeen, et al. The case was then heard on November 9th, 2022.

The general consensus is that the Supreme Court is poised to either strike down the ICWA or at the very least, gut it beyond recognition. If this were to pass it would also go against the Supreme Court’s former ruling in Santa Clara Pueblo v. Martinez of 1978.[3] In this case, a man named Martinez, who claimed he was of Santa Clara Pueblo ancestry but had been raised outside the tribe, was denied membership in the tribe by the tribal council. Martinez argued that this denial violated his rights under the Indian Civil Rights Act of 1968 (ICRA), which prohibits discrimination based on race in Indian tribes that receive federal funding.

The Supreme Court ultimately ruled against Martinez, holding that the ICRA did not apply to the Santa Clara Pueblo’s membership criteria because they were based on tribal membership rather than racial classification. The Court also held that the tribe had the authority to regulate its membership and determine its own descent rules. This was significant because it established the precedence that tribes have the authority to regulate their membership and that the federal government’s role in Indian affairs is limited by the inherent sovereignty of Indian tribes. It has since been cited in numerous cases involving tribal sovereignty and the authority of tribes to regulate their internal affairs.

The same Supreme Court that just overturned Roe v. Wade, and Planned Parenthood v. Casey in its Dobbs v. Jackson decision back in June of 2022, is likely going to decide once again to intervene and defend the conservative establishment’s continued assault on the lives of non-white women and femmes everywhere by effectively ending indigenous sovereignty over their families, perpetuating the continued genocide of indigenous peoples across the United States. The overturning of the ICWA would lead not only to the return of forcefully separating indigenous children from their communities but would continue the 500-year-long colonization of indigenous land at the hands of the settler-colonial capitalist state known as the “United States.”

Indigenous communities everywhere ought to be in support of the ICWA but should recognize the limitations of having their sovereignty in the hands of the oppressive capitalist government, which at every turn seeks to expand its interests at the expense of indigenous nations and their people. Even though this legislation, a product of the general civil rights movement, and organizations like the American Indian Movement – the Native American advocacy group that promotes the sovereignty, self-determination, and rights of Native American people – have helped stymie some of the worst excesses of the capitalist government’s abuse, it has not solved, in any sense of the word, the large tribulations and suffering that indigenous communities across this country and the entirety of the Americas face. On reservations where clean water is a mere dream, to indigenous communities whose land has been taken, privately owned, and exploited, indigenous communities have been facing some of the worst manifestations of capitalist “development.” The federal and state governments may in one or another instance sway in favor of indigenous communities, but we only need to wait a short time for them to show their true colors once again. Only through revolutionary means can the Indigenous people of the land protect their sovereignty. This fight is not just the fight of our indigenous comrades alone, for as Lenin states:

“The socialists cannot reach their great aim without fighting against every form of national oppression. They must therefore unequivocally demand that the Social-Democrats of the oppressing countries (of the so-called ‘great’ nations in particular) should recognize and defend the right of oppressed nations to self-determination in the political sense of the word, i.e., the right to political separation. A socialist of a great nation or a nation possessing colonies does not defend this right is a social chauvinist.” (The Right of Nations to Self-Determination)[4]


[1] Asgarian, Roxanna. “How a white evangelical family could dismantle adoption protections for Native children.” Vox, February 20th, 2020.

[2] Piccard, A. (2013). Death by boarding school: the last acceptable racism and the united states’ genocide of native americans. Gonzaga Law Review, 49(1), 137-[vi].

[3] Santa Clara Pueblo v. Martinez, 436 U.S. 49 (1978).

[4] V.I. Lenin, The Right of Nations to Self-Determination (Marxists Internet Archive, 1914),

Leave a Reply

Your email address will not be published. Required fields are marked *