Publication Date
12-1-2023
Abstract
At the end of its 2023 term, the United States Supreme Court issued a long-awaited decision on the Indian Child Welfare Act, Haaland v. Brackeen. The Court was presented with the direct conflict between three well-established bodies of constitutional law: (1) the right of individuals against racial discrimination, (2) the rights reserved by the states under Tenth Amendment federalism, and (3) federal supremacy over the states in matters concerning Native peoples and nations. These conflicts risk the survival of Native families, communities, and culture as well as the collective rights of Native peoples to their survival as inherently sovereign nations under federal (colonial) Indian law. The Court was presented with arguments over 500 years in the making regarding not only the “theft” of Native children, but also requesting a revisitation and reaffirmation of the fundamental colonial relationship between the United States, the states, and Native nations and peoples on the 200th anniversary of the Court’s Marshall Trilogy. The Marshall Trilogy concocted what is known as federal Indian law and limited the reach of the states into Native affairs and resources. This Article examines the Court’s majority and dissenting opinions, the parties’ arguments, and the dispute’s fascinating and tragic backstory. The Article concludes with a discussion of the significant underlying issues not raised, and arguments not made, which bear upon the human rights and future survival of the original peoples and nations who have found themselves within the claimed territory and colonial rule of the United States.
First Page
349
Recommended Citation
Andrew B. Reid, Haaland v. Brackeen: The Indian Child Welfare Act, States' Rights, and the Survival of America's First Peoples and Nations, 101 Denv. L. Rev. 349 (2024).