Lawsuits Threaten Tribal Sovereignty

The Indian Child Welfare Act

Brackeen v. Haaland, argued before the U.S. Supreme Court in November, focuses on the right of Native American families to have preference over non-Native families in the adoption placements of Native kids.

The plaintiffs in Brackeen v. Haaland claim the preference is based on race, rather than the political sovereignty of tribal nations. A ruling in their favor could fundamentally rewrite the way the U.S. government regards tribal nations, casting policies created by treaty or agreements between sovereign nations in doubt.

The plaintiffs are challenging the Indian Child Welfare Act (ICWA), a 1978 law that requires caseworkers to give preference to Native families in foster and adoption placements of children who are members of a federally recognized tribe. When Congress passed ICWA in 1978, studies showed that state child welfare agencies and private adoption companies were taking between 25 percent and 35 percent of Native kids from their families. And 85 percent of those children were placed with non-Native families.

Native families are still four times as likely as white families to have kids removed from their homes, according to the National Indian Child Welfare Association.

The Indian Gaming Regulatory Act

Maverick Gaming, which operates 19 card rooms in Washington and casinos in Nevada and Colorado, is challenging a 2020 law that allows sports betting only on tribal lands. The lawsuit, filed in federal court in Washington state, claims the law created a “discriminatory tribal gaming monopoly.”

The lawsuit is arguing that gaming contracts between Washington state and tribes are based on race and therefore discriminate unconstitutionally against people who run non-tribal casinos. The argument takes aim at the inherent right of tribal nations to govern themselves and at centuries of U.S. law that recognizes tribal governments’ political parity alongside their state and federal counterparts.

Maverick Gaming, LLC v. United States, et al., and other cases like it, threaten a return to the Termination Era policies of the 1950s, when the U.S. government sought to end the political status of Indigenous tribes forever. This lawsuit, and the case of Brackeen v Haaland, are part of a coordinated campaign that experts say is pushing once-fringe legal theories to the U.S. Supreme Court and represents the most serious challenge to tribal sovereignty in over 50 years.