‘A Can of Gasoline Under Indian Law’

Four years ago Lisa Blatt argued a case before the Supreme Court called Carpenter v. Murphy. It rested on whether a citizen of the Muscogee (Creek) Nation who was convicted of murder was under the criminal jurisdiction of Oklahoma or the federal government—a question that itself depended on whether a swath of eastern Oklahoma was considered Creek land. Blatt represented the state, against tribal interests.

Recognizing the land as Indian country, she said, would create an “earth-shattering consequence on the civil side.” Then, puzzlingly, she talked about the Indian Child Welfare Act, a 1978 federal law that establishes tribe-based placement preferences for Native American foster children and mandates tribal involvement in their adoption cases. “If the state court lacked jurisdiction” over the land, Blatt argued, ICWA would raise the “specter of tearing families apart all across eastern Oklahoma, and probably beyond, for years.” ICWA (pronounced ick-wuh) was designed to stem the widespread removal of Native children from their families and tribal communities. But these weren’t the families Blatt was referring to. The families that would be “torn apart” were non-Native families—in Oklahoma and across the country—who had adopted, or who wanted to adopt, Indian kids.

Blatt is part of a constellation of attorneys, white-shoe law firms, and conservative political organizations that for at least a decade have mounted a dedicated and increasingly interrelated effort to overturn ICWA. It includes the corporate law firm Gibson Dunn, which represents some of the richest companies in the world, including Walmart, Amazon, and Chevron; the Goldwater Institute, a libertarian think tank in Arizona; and attorneys such as Paul Clement, a former US solicitor general and veteran Supreme Court litigator.

Their efforts have culminated in Brackeen v. Haaland, which began in 2017 as a simple custody dispute. A white evangelical couple in Texas wanted to adopt a Navajo boy they had fostered. Citing ICWA, the Navajo Nation intervened. Pretty soon, a lot of remarkable things started to happen in a previously unremarkable case. As the Cherokee journalist Rebecca Nagle detailed in 2021 on her podcast This Land, the Texas attorney general’s office got involved—in family court. Then Gibson Dunn attorneys, led by Matthew McGill, began representing the white couple pro bono. Other petitioner groups, including three states, signed on to the case, which moved to federal district court and then to the Fifth Circuit Court of Appeals. The Supreme Court heard oral arguments in November, and a ruling is expected later this month.

For tribal advocates, scholars of Indian law, and journalists covering Indian country, Brackeen is not a one-off threat but a culmination of past challenges to ICWA and tribal sovereignty writ large. In This Land, the second season of which is dedicated to Brackeen, Nagle maps a web of professional connections among ICWA’s opposition: that Goldwater set the stage for Brackeen based on its past work against ICWA; that Goldwater’s funding can be traced back to the conservative Bradley Foundation, which in recent years has donated more money to political causes than the Koch family network; that Clement sits on the Bradley board; that McGill is in the organization’s network; and that Bradley and Goldwater came together through Clint Bolick, an attorney for the think tank. Nagle also traced the opposition’s main argument in Brackeen—that ICWA is a race-based policy, and therefore discriminatory—back to a 2012 Indian gaming case in Massachusetts, which along with some of the opposition’s professional ties to gaming interests raised questions about whether cases targeting ICWA were meant to challenge more than the single law.

The players in Brackeen are closely connected or identical to those who have brought forward every single national legal challenge to ICWA over the past decade. Some also show up in recent court cases challenging the Indian Gaming Regulatory Act. There are links, too, among the legal strategies that have been used by this network. Tribal advocates have warned that such connections suggest motivations beyond child welfare. “It’s not a case about kids,” Fawn Sharp, the president of the National Congress of American Indians, told me. “It’s a case about undermining the very heart of tribal sovereignty,” in order to unlock tribal lands, resources, and revenue streams. Dan Lewerenz, an assistant professor teaching federal Indian law at the University of North Dakota and a former staff attorney at the Native American Rights Fund, told me the petitioners in Brackeen were taking a “scorched-earth approach,” one that endangers all of tribal law.

The petitioners’ main argument in Brackeen, which is the third suit against ICWA to go to the Supreme Court, is that the law’s exclusive application to Native kids violates the equal-protection principle enshrined in the Fifth Amendment’s due process clause. It’s an assertion at odds with the fact that the federal government treats recognized tribes as separate, quasi-sovereign states, and the Native Americans enrolled in them as members of a political, not a racial, class. (For this reason, ICWA’s protections don’t extend to members of tribal nations not recognized by the federal government.)

The principle that Native Americans are a political group has been fortified by decades of judicial decisions, most notably the Supreme Court’s unanimous ruling in Morton v. Mancari (1974) that hiring practices favoring Native Americans at a Bureau of Indian Affairs office in Albuquerque did not violate the due process clause. Lindsay Robertson, a professor of federal Indian law and constitutional law at the University of Oklahoma, told me that saying tribal citizens comprise a racial classification is “like saying being an American is a racial classification.”

Within the US government, Congress has sole authority over Indian affairs and can implement that power as long as it has a so-called rational basis to do so. If the Supreme Court overturns ICWA on equal protection grounds, it could effectively rule that Native Americans are a racial class whose treatment by the government is subject to stricter judicial scrutiny. Lauren van Schilfgaarde, an assistant professor of law at UCLA and a citizen of Cochiti Pueblo, said that Brackeen is “challenging whether or not Congress actually possesses authority to enact legislation, such as the Indian Child Welfare Act, that seemingly applies just to Native people and tribes.” If Congress loses that authority, hundreds of laws and treaty agreements could face legal challenges, threatening tribes’ abilities to self-govern, establish criminal jurisdictions, maintain collective water and mineral rights, operate casinos, and safeguard their borders.

In the century and a half before the passage of ICWA, the US tried relentlessly to subjugate Native Americans by removing them from their ancestral homelands; pushing them into reservations thought to lack abundant natural resources or fertile land; forcing them to privatize these new lands, to dilute collective ownership and disperse tribal authority; and depopulating reservations so that tribes might be disbanded. Throughout this time, Native American children across the United States were routinely taken from their families and tribal communities by non-Native entities, including assimilation-minded boarding schools—the most infamous being the Carlisle Indian Industrial School in Pennsylvania—as well as churches and state child welfare agencies. By the 1970s nearly a third of Native American children were experiencing some form of removal.

“The exact point of these child removals was to assimilate Indian children,” Neoshia Roemer, an assistant professor of family and federal Indian law at the University of Idaho, told me. “By cutting cultural ties, you destabilize Indian tribes. You get them down to a few members here, a few members there. Then the US government can actually cut off its responsibility to those tribes.” Sarah Krakoff, an expert in federal Indian law and a deputy solicitor at the Department of the Interior, described the spirit of the removals in a 2017 Stanford Law Review article: “Similar to the infamous slogan associated with the Carlisle Indian Industrial School, ‘Kill the Indian, save the man,’ the pre-ICWA mantra might be summarized as ‘Extract the Indian to save the child.’” Attempts to mitigate this crisis, led by the American Indian Movement, began to consolidate in the civil rights era. After intensive lobbying, elected representatives began to “recognize the destructive nature of removing children forcibly in mass,” Sharp told me. “It’s a crisis in Indian country, it’s multigenerational trauma, it’s an injustice that demands some sort of restorative federal action.”

ICWA mandates that child welfare agencies make “active efforts” to reunify children with their parents, a higher standard than agencies typically have to meet. If reunification isn’t possible—owing to, say, an imminent threat of physical harm—the law lays out a ladder of preferences for adoptive placement: first a member of the child’s extended family, then another member of the child’s tribe, then an Indian family from a different tribe. Crucially, ICWA also directs that a child’s tribe or tribes be involved from the start of a custody case, which not only gives tribal authorities agency throughout the proceedings but also widens the pool of resources. Child welfare systems across the country are largely underfunded. In this arena, tribes can “often have better resources for their members than states do,” Roemer said.

Today between 2 and 3 percent of Native children are in state foster care systems, David Simmons, the National Indian Child Welfare Association’s government-affairs director, said. The figure reflects the fact that Indian kids are still disproportionately removed from their homes and communities. But that ICWA caused family removals to drop some thirty percentage points over forty-five years is “an incredible success,” he told me. The petitioners in Brackeen argue that keeping Native kids with their families is not necessarily synonymous with encouraging best outcomes. In the hearing at the Supreme Court in November, McGill argued that ICWA “deprives Native children of the best-interests-of-the-child test.” Tribal advocates contend that ICWA’s placement preferences do not preclude any such deliberation.

Beyond its effects in Indian country, ICWA has become a model for child welfare practices nationwide. “Any research you do will show that the best wellbeing outcomes are for kids to live with their parents,” Angelique Day, an associate professor at the University of Washington’s School of Social Work, told me. She added that, when that’s not possible, living with relatives produces better outcomes than living with nonrelatives. She stressed “the foresight that tribal advocates had in developing” the law. “They had a vision back then that we’re just now acknowledging as…[the] best practice for all in the child welfare system in America,” she said. It’s a belief advocated by more than two dozen of the nation’s leading child welfare and adoption organizations, which in an amicus brief to the Court called ICWA the “gold standard” in child welfare.

States are increasingly adopting into their own child-welfare systems the kind of standards that ICWA set out in 1978. Marcia A. Yablon-Zug, a professor of Indian law and family law at the University of South Carolina, said that “the irony, if we get rid of ICWA, is that only Native kids won’t have these protections.” If it’s overturned, the very children who were meant to benefit from the first federal law to acknowledge the importance of reunification may become the least likely to receive the higher standards of care it helped bring about.

Legal challenges to ICWA were launched almost as soon as the law passed. A watershed moment for its opponents came in 2013, when, in the Supreme Court case Adoptive Couple v. Baby Girl, Lisa Blatt and Paul Clement represented a South Carolina couple fighting to adopt a girl with partial Cherokee heritage. It was here that Clement first offered, in a high-level challenge, the race-focused legal strategy that’s now at the heart of Brackeen. What made the child in the Baby Girl case Indian was “its biology,” he said, “combined with the fact that the tribe, based on a racial classification, thinks that somebody with one percent Indian blood is enough to make them a tribal member, [or] eligible for tribal membership.”

Because the parent invoking ICWA had previously given up custody of the child, a 5–4 majority found that the law did not apply to the specific custody battle, and therefore did not rule on its constitutionality. But according to Krakoff it was “the first US Supreme Court case to raise constitutional questions about ICWA”—questions that found favor with some of the justices. Samuel Alito and Clarence Thomas both made clear they felt there were constitutional issues with ICWA. Alito also signaled that he thought race was a factor in the law’s application. “This case is about a little girl (Baby Girl) who is classified as an Indian because she is 1.2 percent (3/256) Cherokee,” he wrote in the opening line of his opinion. For this reason, he continued, ICWA required that she be “be taken, at the age of twenty-seven months, from the only parents she had ever known” and given over to her biological father. Simmons told me, “That was sort of raising the flag and saying, ‘We’re open to this, so please bring us more cases like that.’”

ICWA’s opponents took note, and soon race-based arguments came to dominate high-level challenges to the law. These include National Council for Adoption v. Jewell (2015), in which McGill and his wife, Lori Alvino McGill, represented non-Native adoption entities challenging updated ICWA guidelines. Then came Carter v. Tahsuda (2017), a class action lawsuit in which the Goldwater Institute, claiming to act on behalf of all off-reservation Native children in Arizona, argued that ICWA was a racist policy and sued both the federal government and the state of Arizona. The case was brought forward by Clint Bolick, who at the time directed Goldwater’s litigation strategy. Both suits were dismissed in federal district court.

The mounting cases clarified the makeup of ICWA’s opposition, tribal advocates told me. In early 2022 Gibson Dunn filed suit in federal district court on behalf of Maverick Gaming, a non-Native gaming company challenging a Washington law that limits the state’s legal sports betting to tribe-owned casinos. Maverick’s attorneys were McGill; Lochlan Shelfer, who is also on the legal team in Brackeen; and Ted Olson, who has been representing opponents of tribal gaming since the 1990s. In his January 2022 filing McGill argued, in a close echo of Brackeen, that the Indian Gaming Regulatory Act gives a “race-based preference” to Native tribes. A federal judge dismissed the lawsuit in February.

In This Land Nagle notes that Clement represented a non-Indian gaming company in Massachusetts in 2012. In that case he argued that a state gaming law violated the Equal Protection Clause of the Fourteenth Amendment because it prioritized a federally recognized tribe for a gambling license—a kind of precursor to his argument in Adoptive Couple v. Baby Girl the following year. (The suit was dismissed by the Massachusetts District Court and then the First Circuit Court of Appeals.) Five years later Clement argued (and lost) against Olson and McGill in another gaming case, Murphy v. National Collegiate Athletic Association, which went to the Supreme Court. Olson and McGill’s argument in Murphy hinged on what’s known as the anticommandeering doctrine, which is extrapolated from the Tenth Amendment; it holds that the federal government cannot force states to apply or enforce federal policies.

Although Murphy didn’t involve tribes, there is a corollary: ICWA, too, is a federal law that state agencies are compelled to implement. The Supreme Court agreed to hear Murphy in June 2017. McGill filed the original Brackeen suit in the Northern District of Texas four months later. Unlike previous ICWA lawsuits, it featured an anticommandeering argument in addition to one about equal protection.¹ (Lewerenz called the anticommandeering argument “quite eccentric,” noting, among other arguments, that the Constitution’s Supremacy Clause necessitates that state courts follow federal law.)

Anticommandeering struck a chord with the justices during the Brackeen arguments. Should the Court rule that ICWA doesn’t violate equal protection but does commandeer states, it could create a previously unforeseen scenario: the law could be effectively terminated only in some parts of the country. To date thirteen states, most recently the conservative bastions of Wyoming, Montana, and North Dakota, have introduced their own versions of ICWA, laws that either codify or augment the federal law’s protections. If the Court upholds ICWA’s constitutionality but invalidates its method of application, the remaining thirty-seven states—among them Alaska, Arizona, and South Dakota, which are home to significant Native populations—would be left without protections.

If the Court does overturn ICWA on equal-protection grounds, it would severely hinder tribes’ ability to defend what’s theirs in court. According to Lewerenz, who is a member of the Iowa Tribe of Kansas and Nebraska, McGill could have tailored his strategy in Brackeen to the specific needs of his clients. Instead he decided “to pour a can of gasoline under Indian law,” he said. “Whether McGill has some altruistic but misguided motive, he has chosen to burn everything down.”

Tribal advocates I’ve spoken to suspect the breadth of the attack may reflect the opposition’s motivations. Fawn Sharp, the National Congress of American Indians president, told me that Brackeen is really an attempt “to gain direct access to our natural resources, to our lands, to our sacred sites.” None of the entities fighting ICWA have previously shown any significant interest in child welfare issues, but Gibson Dunn is heavily involved in the oil and gas industry—Chevron is one of its biggest clients—and in gaming. It represented Energy Transfer Partners, which owns the Dakota Access Pipeline, against tribal resistance to the project. Lewerenz said that Gibson Dunn’s extensive work in these arenas could stand “to benefit from diminished federal power or diminished tribal power on Indian lands.”

Nagle too makes this point. “What happened at Standing Rock worried the oil industry,” she observes in This Land. One study, she notes, estimated that Native resistance may have cost the Dakota Access Pipeline $7.5 billion. According to a recent report by Accountable.US, Goldwater and other conservative organizations backing the petitioners in Brackeen—including the Cato Institute, the Project on Fair Representation, and the Texas Public Policy Foundation, all of which filed or signed on to amicus briefs in the case—have received significant funding either directly from the Koch family, which made its fortune primarily on fossil fuel extraction, or from entities closely tied to it.    

Indian tribal lands hold roughly 20 percent of the country’s fossil fuel reserves. Indian gaming brings in tens of billions of dollars in revenue every year. What if tribes’ ability to regulate oil extraction on their lands is compromised? What if the Indian Gaming Regulatory Act is next on the chopping block? What if the Affordable Care Act could be undermined because of certain exemptions it makes for tribal members?

“When Indian policy has turned against Indians, it has almost always been done in the language of helping Indians, and with appeals to equality,” Lewerenz said. The termination era, for instance, when federal policy was to end the government’s relationships with tribes, was driven largely by a widespread belief among lawmakers that they could help liberate Native Americans from Congressional control. The same rhetoric has pushed the fight against ICWA to the point where the Supreme Court, perhaps with just a 5–4 majority, could overturn its unanimous decision in Mancari and rule that Congress’s plenary powers over Indian affairs—which are so “close to the core,” as Lewerenz said, having been written into the Constitution and articulated in the Federalist Papers—are no longer absolute. The suit is “an appeal not to law but to lawlessness,” Lewerenz told me. “And they’re hoping that the Court will go along.”