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Native Americans and the Court

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In our stories about racial oppression in the United States, Native Americans aren’t forgotten, but the legal details of how the government have denied Native American rights usually are ignored. At least two possible reasons for this. First, unless you are from or live in a handful of western states, there just aren’t very many Native Americans. It doesn’t seem as fundamental to either the recent past or present as African-American issues. Second, the most famous decision on Native American rights actually supported them, when after the Marshall court issued Worcester v. Georgia, Andrew Jackson basically told Marshall where he could stick his decision and went ahead with plans for Cherokee removal.

But the same courts that have denied African-American rights have also denied Native American rights. We all know that in 1896, the Supreme Court ruled for legal segregation in Plessy v. Ferguson. But that year the Court also issued its decision in Ward v. Race Horse. This case decided Native American hunting rights on public lands. In 1895, thirty Bannock from the Fort Hall Reservation in Idaho were arrested by a Wyoming posse after hunting in what was then Yellowstone National Park (which had been a major hunting ground for Native Americans for thousands of years). The Court got involved and ruled in Ward (to quote Mark Spence, from Dispossessing the Wilderness) “that all treaties guaranteeing native rights to hunt on public lands were predicated on ‘the disappearance of those [public lands]’. Consequently, a posse could enforce state laws that banned native hunters from lands expected to be settled sometime in the future.”

In other words, like with African-Americans, the Supreme Court created a ruling that fit its white supremacist ideology.

On Tuesday, the Supreme Court issued a ruling that voided the most relevant portion of the Voting Rights Act. Texas and other southern states are already moving ahead to reduce the power of African-American voters. But the Court also issued another disturbing ruling undermining Native American rights. In a 5-4 decision (with Scalia dissenting and Breyer in the majority) the Court ruled in Adoptive Couple v. Baby Girl that a Native American girl adopted by South Carolina parents could not be returned to her father who later tried to reclaim her, using the 1978 Indian Child Welfare Act, which sought to keep Native American children in Native American families.

This was a narrow ruling, focusing around strictly the specifics of the case. It’s not an outrage on the level of Ward. But it also reaffirms the difficulty Native Americans have in realizing sovereignty and the consistent misunderstanding between the American legal system and tribal law and custom. Colorlines:

So what does ICWA do? The act was created because of incredibly high rates of white parents adopting Native children; in states like Minnesota, that have large Native populations, non-Natives raised 90 percent of Native babies and children put up for adoption. Those adoptions sever ties to Native tribes and communities, endangering the very existence of these tribes and nations. In short, if enough Native babies are adopted out, there will literally not be enough citizens to compose a nation. ICWA sought to stem that practice by creating a policy that keeps Native adoptees with their extended families, or within their tribes and nations. The policy speaks to the core point of tribal sovereignty: Native tribes and nations use it to determine their future, especially the right to keep their tribes and nations together.

But leave it to the Supreme Court to miss the point altogether this morning. The prevailing justices failed to honor tribal sovereignty in today’s ruling. In writing for the court’s majority, Justice Samuel Alito opened his delivery on the ruling with these words:

This case is about a little girl (Baby Girl) who is classified as an Indian because she is 1.2% (3/256) Cherokee.

What Alito (along with Justices Roberts, Kennedy, Thomas and Breyer) is perhaps willfully missing is that the Cherokee Nation does not classify its citizens in that way. Baby Veronica is not a certain percentage Cherokee—she is Cherokee, as determined by her nation. The high court’s first sentence, based in the colonial practice of blood quantum instead of the way that citizenship is determined by the Cherokee Nation, illustrates that the justices made this case about race—in their mind—and not about tribal sovereignty in the law. By this flawed logic, the high court ruled that Baby Veronica is somehow not Native enough to be protected by ICWA.

The conception of race is particularly important here. How do we classify race? As always in this country, it’s about blood quantum determined by non-whiteness (i.e. Barack Obama is the 1st black president instead of the 44th white president, even though he 50% Kenyan and 50% Anglo). But that doesn’t always fit the situation and certainly didn’t here. Instead, the Court’s decision in Adoptive Couple reinforces systemic racism, with non-Indians forcing their conceptions of race over Cherokee conceptions of race.

Again, this is a narrow ruling, kicking this back to the South Carolina courts. And of course, I do feel for the adoptive parents and realize that the particulars of this case are not cut and dried. But this is a bad principle to set; the fact that 4 of the 5 conservatives made up the majority is always a bad sign.

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