Brackeen v. Harland: The Reverse Racism Argument that may end Tribal Sovereignty
December 2nd, 2022
By Anna Bellows
Article II, subsection (e) of the 1948 Genocide Convention defines genocide as “acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, such as (...) forcibly transferring children of the group to another group.”
In 1948, the global community came together in Paris. With the atrocities of World War II still fresh in their minds, they declared that “never again” would genocide go unchallenged. Nearly 100 States ratified the Convention the day it was proposed. The United States of America—the self-proclaimed champion of “life, liberty, and the pursuit of happiness”—also signed on to this powerful international accord.
They signed 40 years later, in 1988. But hey—better late than never.
This year, in 2022, the U.S. Supreme Court will rule on one of the most significant—and frankly, one of the only—effective steps the United States has ever taken to interrupt the systematic, genocidal removal of Native children from their families. The case, Brackeen v. Haaland, centers on a single adoption proceeding, but its implications are far broader. The outcome could gut tribal sovereignty and reshape Native American existence as we know it. A quick note: I’ll be using the term “Indian” only when quoting legal language, where it remains the standard term.
Before 1978, between 75-80% of Native American families lost at least one child to the foster care system. Native children were taken from their homes at a rate nearly 20 times higher than their non-Native peers. Estimates suggest that between one in five and one in three Native children were removed from their families and tribes.
In response to this systemic devastation, Congress passed the Indian Child Welfare Act (ICWA) in 1978. ICWA is widely regarded as one of the most effective pieces of child welfare legislation in American history. After it was passed, rates of removal dropped. More Native children were kept with their families and communities. Mental health outcomes improved. Suicide and depression rates fell. According to the Casey Family Foundation, from 2008–2009, 86% of Native children investigated by Child Protective Services were returned to their biological parents within 18 months—a rate comparable to that of non-Native children. ICWA worked.
Enter Chad and Jennifer Brackeen, Big Oil, and the blood-red bench of the 2022 Supreme Court.
Brackeen v. Haaland
“The history of Native Americans at the Supreme Court is long and fraught—a series of problematic decisions that only started to shift in the last 30 to 40 years,” says Boston-based immigration attorney Susan Church. “Only recently have tribes begun to regain the authority to run their own lives.”
On November 9, 2022, the U.S. Supreme Court heard oral arguments in Brackeen v. Haaland. The case involves the attempted adoption of a Navajo and Cherokee toddler, referred to as ALM in court documents, by the Brackeens—a white foster family. Opposing them are several tribes, fighting not just for this child, but for the right to retain sovereignty over their children’s futures.
Represented pro bono by Gibson, Dunn & Crutcher (the same firm that represents Shell, Exxon, Caesars Entertainment, and MGM Resorts International), the Brackeens have brought three constitutional challenges to ICWA:(1) ICWA unconstitutionally discriminates based on race; (2) ICWA exceeds Congress’s authority; and (3) ICWA violates the non-delegation doctrine
All three claims are serious. But it’s the first—whether ICWA discriminates based on race—that carries the greatest threat to the foundations of tribal sovereignty. Because yes, the argument here is, essentially, reverse racism.
Racial Discrimination—Against White People?
ICWA outlines a tiered placement preference for Native children in adoption cases: “(1) a member of the child’s extended family; (2) other members of the Indian child’s tribe; or (3) other Indian families.” Only if none of these are available would a non-Native family be considered.
The third tier is where plaintiffs are focused. Even though none of the plaintiffs in this case were affected by this provision (in every case, a Native family member stepped forward to claim the child), this part of the law—its preference for any “other Indian family,” regardless of tribe—has become the focal point of their argument.
The plaintiffs claim this provision discriminates against them by putting white families last. To some, it might look like discrimination, explicitly prioritizing one group over another. And if that were the case, maybe they’d have a point.
But simply put—it is not.
The Impact
This claim of race-based discrimination is not just a misreading of the law—it’s a direct threat to the legal structure of tribal sovereignty. For centuries, the Supreme Court has recognized that Native Americans are not a racial group, but members of political nations. Since Worcester v. Georgia in 1832, tribal sovereignty and self-governance have been understood as political, not racial distinctions.
And that distinction matters. What other racial group holds land rights? Water rights? Exclusive hunting, gambling, education, and healthcare rights? What other racial group can negotiate with the federal government or operate its own judicial system? None. Because Native nations are not racial groups—they are sovereign political entities. ICWA doesn’t treat Native families differently because of race. It treats them differently because they are part of a political nation with an established legal relationship to the U.S. government. To rule otherwise—to call this racial discrimination—would dismantle the very legal framework that recognizes Native self-governance.
If the Court agrees with the Brackeens, the consequences will be enormous. ICWA will be struck down. And with it, the political distinction that has defined the relationship between Native tribes and the federal government for nearly 200 years could vanish.
Even worse, any future legislation affecting Native people would be subjected to strict scrutiny—the highest constitutional standard. Under strict scrutiny, any law that distinguishes based on race must serve a “compelling state interest,” be “narrowly tailored,” and use the “least restrictive means” possible. Since when has the well-being of Native tribes ever counted as a “compelling state interest” in this country?
In the wake of recent decisions, including the affirmative action rulings just days before Brackeen, Church warns that “this Court is determined to go back to a race-neutral analysis for everything.”
But a so-called “colorblind” legal framework doesn’t protect everyone equally. It erases differences. It denies history. And in this case, it threatens to dismantle the political reality of tribal sovereignty altogether—even if, based on its own cited precedent and case law, they are not fighting a recognition of a race at all.