Also, the line of questioning in this case felt different. Although the attorneys were passionately presenting their arguments, I felt that their key points were not being heard. I specifically remember one of the judges posing a hypothetical question about “Indians” getting special treatment, and she wanted to know if this special treatment would hypothetically apply to situations where Indian people got DUIs. I looked at the Cherokee friend I was sitting next to and whispered, “Did she just say that out loud?” As the attorney who was defending ICWA tried to nudge her back on course, the judge said something that seemed sarcastic about how “the Indians are like the ancient Romans, who carried Roman law with them wherever they went.”i I could only imagine what she was implying, but I felt pretty sure I knew her thoughts on ICWA.
When the pro-ICWA attorney was asked why the state couldn’t decide what was in the best interest of its citizens, his argument ended with the reminder that “from the beginning of the Republic, as the amicus briefs in this case show, from the beginning of the Republic, Indian children have been the subject of policymaking and legislation by the federal government.” That point resonated so strongly with me, I felt a glimmer of hope that it would resonate with the Judges, too. But as I searched their faces, that glimmer quickly faded. I was afraid many of them might have had their minds made up about ICWA before the arguments began.
As we waited for the opinion to be released, the world shut down due to COVID. It wasn’t until April 6, 2021 that we heard from the Fifth Circuit again. It wasn’t all bad, but their opinion did hold that some aspects of ICWA were unconstitutional. Now the big question was whether the case would be appealed to and ultimately decided by the U.S. Supreme Court.
Meanwhile, I had personally moved on from my capacity with the Muscogee Nation to a position with the National Native Children’s Trauma Center. In this new venture, I found myself able to educate people on a national level about ICWA. I talked about how ICWA is based on the political status of a child determined to be an Indian child, as well as about ICWA’s specific requirements about placement preferences and its insistence that the state provide “active efforts” in working with caregivers. My experience continued to be that even when I was talking to very knowledgeable, well-meaning people in fields like child welfare and juvenile justice, there was a need to continue spreading these messages, because not enough people fully grasp them.
As I settled into my new role, the news came that the Supreme Court had granted certiorari and would hear oral arguments in Brackeen. We knew way back in 2018, prior to the first oral arguments in Texas, that the case was going to be pivotal in determining what the future would look like for our families, communities, and Nations. Now it was official: the Supreme Court was poised either to uphold federal Indian law as we knew it, or to undermine it and send shock waves through our families, communities, and nations.
The stakes could not have been any higher, and the dedicated messaging, outreach, and education push continued. When the deadline arrived for submitting amicus briefs in the fall of 2022, an unprecedented 497 Native Nations had joined the brief supporting ICWA.
I traveled to Washington, D.C., to watch the oral argument on this case. I felt like I had come too far and invested too much mental and emotional energy not to be present for this last showing of unity in support of ICWA. Five friends and I—all of us with backgrounds in ICW departments, Tribal leadership, or federal Indian law—gathered on the plaza in front of the Supreme Court building at 5 a.m. on that cold morning in November. The line to attend oral arguments is first-come, first-served, and as the sun came out and others showed up, the line stretched around the side of the building. We enjoyed visiting with familiar faces as we patiently waited to see who would get in. But it was not to be for our group. The line to enter was cut off three people in front of me—they were not allowing anyone else in.
We didn’t have time to dwell on our disappointment, though, because once that part of the morning was over, we got swept up in the pro-ICWA crowd, who were there to show their love and support outside. We had a backup plan, too: we knew that another group of supporters would be listening to the oral arguments together at a local hotel.
The oral arguments went long: three hours instead of two. There were some welcome surprises in terms of the lines of questioning we heard. It was hard to tell from the audio of the oral arguments how much enthusiasm was warranted. It did seem that some of the justices’ questions and comments indicated that they had done their homework and really sought to understand ICWA’s historical context, purpose, and the effects it has on our families and communities. But like I say, we were planning for the worst even as we were hoping for the best.
As the weeks and months passed while we waited for the Court’s opinion, many of us across Indian Country discussed what we would do to pursue the goals embodied by ICWA if the law were to be struck down. One encouraging development was that multiple state legislatures began moving quickly to codify protections for Tribal children and families in the form of state-level ICW laws. Still, there were so many unknowns. The day after the Supreme Court ruling, we knew we would still be doing whatever we could to protect our children and families. But what would that work look like? There was no way to tell.
Flash forward to the morning of June 15, 2023. It all happened at once. At the same time that I pulled up the SCOTUS blog, a popular online forum offering news and analysis related to the Supreme Court of the United States (SCOTUS), and began to read the Brackeen opinion, my phone blew up with texts, emails, and calls from other ICWA warriors. A sudden flurry of emotions overwhelmed me as I tried to read the news stories and respond to the texts: the Supreme Court had upheld ICWA in its entirety!
It took me a while to be able to put that moment into words. In fact, one of the most memorable aspects of that morning was precisely that experience of not having any words to describe what I was feeling. A friend I met doing ICWA work about 15 years ago called me as we both were still digesting the news, and the two of us just sat on the phone in complete silence. Neither of us could formulate any words for quite some time, nor did we need to explain why there weren’t any words. I think about that phone call often, and without a doubt, I will always remember it.
The main expressions I think of now, when I think of that morning, are excitement and relief. Excitement at the fact that what we had hoped would be true seemed to have turned out to be true: if people really make an effort to understand what ICWA is all about, then they will value it the way we do. The reason I felt relief is probably obvious. I have invested my life in this fight, as have so many of the strongest and most generous, loving, and caring people I know.
That was a day for celebration and for celebratory conversations with ICWA advocates. Then Friday morning came, and it was right back to the grind. ICWA survived. That battle has been won for now. But the battle to ensure that ICWA is implemented properly on behalf of our children, families, communities, and nations continues.
