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The Supreme Court has a rare chance to protect Native American families

A Harvard Law student went to Washington, D.C., to witness the debate on the fate of the Indian Child Welfare Act. Tribal sovereignty is on the line.

Samantha Maltais at the US Supreme Court.Anna Sherman-Weiss

“No, I do not have a change of clothes,” I responded to the US Supreme Court police officer who politely warned me of the rules against attire that evokes a “political statement.” A second officer stepped down the marble stairs to join us inside the hall. Wearing such attire inside the courtroom is strictly prohibited, he said sternly, and punishable by jail time. Yet, there I stood, dressed in full regalia — the fringed buckskin dress my mother and I had made together — adorned in wampum jewelry in accordance with the cultural traditions passed down through our tribe, the Wampanoag Tribe of Aquinnah. Who would this arbiter of “political statements” be? I wondered. I’d chosen my clothing as a sign of respect, a tribute to my ancestors and the culture that each generation has carried to the next.

I had traveled from Cambridge to Washington, D.C., to hear the oral arguments in Haaland v. Brackeen, held November 9. It was my first time inside the Supreme Court, an honor not lost on this law student and one that came at the cost of arriving before dawn in the hopes of getting in. I’d waited in the cold and darkness, anxious but driven by duty to bear witness to history and to tell the story of how this court of non-Natives would debate our past, present, and future.


In Brackeen, the court will decide the fate of the Indian Child Welfare Act. The case stems from a white couple’s attempt to adopt a Native child and their alleged injury by the law’s stipulations that prioritize placing Native children first with relatives, then with other families in their tribe, and then with families in other tribes (along with various important exceptions that allow for flexibility according to specific circumstances of each case). As noted by Ian Gershengorn, counsel for the tribes in the case, the Indian Child Welfare Act represents the “gold standard” for child welfare. Still, the couple and some states argue, among other things, that the placement preference for families from other tribes violates the Equal Protection Clause by legislating along racial lines.

This argument, however, fundamentally misunderstands what it means to be Native in America. Tribes have existed in this land since time immemorial. Our sovereignty predates the founding of this country and the Constitution that laid the foundation of its legal system. Since that founding, federal laws and policies have recognized the inherent tribal sovereignty of tribal nations and treated them not as a racial category, but as a political one.


This history has not been about uplifting tribal communities, but eliminating them. The first attempt came through sheer violence, the next through efforts to steal and then allot Native land and assimilate our communities into the greater American population. Starting in the late 1800s and continuing well into the 1900s, the federal government engaged in the forced removal of Native children from tribal communities and placed them into federal boarding schools designed to “kill the Indian, and save the man.” These schools were places of rampant physical and sexual abuse, sites of disease outbreak, and today remain the site of thousands of unmarked graves from the children who died while in their custody.

Former students at these boarding schools still recall today the horrors that occurred within those walls. And the practice of stealing Native children didn’t stop there. States and private adoption agencies turned to other means of removing Native children from tribal communities — this time using the apparatus of state child welfare systems to systematically separate generations based largely on the bias from the cultural differences in child-rearing practices. While the last federal Indian boarding school closed as recently as the late 1960s, according to surveys in 1969 and 1974, approximately 25 percent to 35 percent of all Native children were separated from their families, most placed in non-Native homes.


Finally, Congress responded in 1978 by passing the Indian Child Welfare Act. It’s just one of the hundreds of laws and policies that recognize the unique government-to-government relationship between US and tribal governments. It is long established that Congress has plenary power to legislate on Indian affairs, and in an employment case (Morton v. Mancari), the court established that “Indian preference” passed constitutional muster since tribal citizenship was a political rather than racial category.

Yet, there I sat in the courtroom after the officers had relented, listening to the misguided remarks by the plaintiffs’ lawyers, one trying to argue that the future generations of tribes were not part of tribal “sovereign interests.”

I noted every tonal shift in the justices’ questions and comments, hoping for any indication that we could get to the five votes that would mean the continuation of our cultures, languages, and sovereignty. These all rely on our future generations, which the Indian Child Welfare Act is designed to protect, and what is on the line in Brackeen.


As I left the court, I turned back once more, reading the engraved façade: “Equal Justice Under Law.” But what if equal does not mean just? The US legal system was built on Native land at the cost of our displacement and attempted elimination. Tribes feel the weight of this unequal foundation and every decision the court makes that threatens to push Native people back into a history that many would prefer to forget. But we are still here.

I do understand how my regalia could be seen as a political statement rather than the cultural one I intended. The truth is, my existence is a small act of sovereignty, a statement that tribal nations remain sovereign in the face of hundreds of years of colonialism and the wounds it left behind, wounds that laws such as the Indian Child Welfare Act strive to heal. No, I do not have a change of clothes.

Samantha Maltais is a member of the Wampanoag Tribe of Aquinnah and a second-year student at Harvard Law School. Send comments to magazine@globe.com.