Abstract

Excerpted From: Andrew B. Reid, Haaland v. Brackeen: The Indian Child Welfare Act, States' Rights, and the Survival of America's First Peoples and Nations, 101 Denver Law Review 349 (Winter, 2024) (379 Footnotes) (Full Document)

Towards the end of its 2022-2023 Session, the United States Supreme Court issued a long-awaited decision on the constitutionality of the Indian Child Welfare Act (ICWA or the Act) in Haaland v. Brackeen (Brackeen) All major decisions of the Court have a backstory. Brackeen's backstory begins some 200 years ago during the early development of federalism, an era characterized by state's attempts to extend their authority to Native territories and people, and the federal government's declaration of its exclusive “plenary” authority over them.

The ICWA's backstory reaches further back, some 530 years, to the initial discovery and settlement of the Americas by the imperial powers and people of Europe. The Act's history continues to impact the present day political, legal, and cultural relationship between the United States and the peoples and nations that then inhabited and continue to inhabit territory now claimed by the United States. The ICWA backstory is one of slow physical, economic, cultural, and spiritual genocide, colonial domination and rule, institutionalized slavery, theft of children, and forced assimilation. It is one of stolen ancestral territories, lands, and resources that caused the destruction of pre-existing sovereign, independent Native nations. It is also a story of restorative justice and how Americans, as a peoples and nation, confront their own history and their moral and legal obligations to do right by the most vulnerable members of the original inhabitants of Khéya Wíta (Lakota for “Turtle Island,” or North America prior to colonization).

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In December 2005, the United Nations General Assembly adopted a resolution establishing Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law. The Basic Principles and Guidelines sets forth a structure and a process for providing remedies to victims of ethnic cleansing and genocide as well as other gross human rights violations. Although directed at immediate victims, it does provide for collective remedies and, to the extent that the violations are continuing through generations, it may arguably apply to the slow genocide of Indigenous peoples. Historic and continuing victimization and transgenerational harm are defining and identifying characteristic of victims of colonialism, ethnocide, and genocide. Regardless, the Basic Principles and Guidelines provides instruction on restorative justice and reparations that could be utilized. Section IX sets forth the scope and requirements for reparations. It requires “proportional[ity]” to the gravity of the violations and harm suffered, the establishment of programmes for reparation, restitution whenever possible (including the right of return and the return of property wrongfully taken), and compensation for physical or mental harm and “moral damage,” among other action. It requires “full and public disclosure of the truth,” an official declaration restoring the dignity, the reputation, and the rights of the victims and of persons closely connected with the victims, a “[p]ublic apology, including acknowledgement of the facts and acceptance of responsibility,” commemorations and tributes to the victims, and inclusion of an accurate account of the violations that occurred in international human rights law and international humanitarian law training and in educational material at all levels. The nature and scope of appropriate reparations should be determined by the victims and not by the violator of rights.

These Guidelines direct what should be the appropriate reparative response of the United States as a colonial power that has engaged in hundreds of years of slow, cultural, genocide. The Guidelines support the ICWA as a step in stopping the harms caused to Native children, mothers, families, peoples, and nations by the institutionalized thefts of Native children. Reparations further require aggressive Government policies and programmes to facilitate the reunion of stolen Native children with their families and communities. It requires mental health support for the generational trauma caused by adoptions and separations. Support should also be provided to build effective foster care and adoption programmes within communities, including financial support for the Native institutions and the parents and families in the programs. Full respect should be given to the sovereignty and laws of Native nations freed from colonial domination. The ICWA is important, but merely a half measure. Decolonization and embracing Native customary law, human rights, and the international law of nations provides a way forward in the best interests of the child, and of its people and nation.

Andrew Reid, J.D., L.L.M.; Reid has practiced and taught Federal Indian Law, and International and Human Rights Law of Indigenous Peoples for over forty-five years. He is counsel for numerous Native nations and Indigenous peoples in the United States, Canada, the Caribbean, and other parts of the world. He is an alumnus (L.L.M.) and adjunct professor at the University of Denver Sturm College of Law.