Page 6
Spilyay Tymoo, Warm Springs, Oregon
January 11, 2023
Court Cases: Adoption, gaming suits aim at tribal sovereignty
(from page 1)
The Maverick Gaming lawsuit,
however, goes further. The plain-
tiff is arguing that gaming com-
pacts between Washington state and
tribes are based on race, and there-
fore discriminate unconstitutionally
against people who run non-tribal
casinos. The argument takes aim at
the inherent right of tribal nations
to govern themselves, and at cen-
turies of U.S. law that recognizes
tribal governments’ political parity
alongside their state and federal
counterparts.
Advocates and legal experts say
the Maverick case and others like
it threaten a return to the Termi-
nation Era policies of the 1950s,
when the U.S. government sought
to end the political status of Indig-
enous tribes forever.
ICWA at Supreme Court
A prominent case involving the
Indian Child Welfare Act—with
potential far-reaching repercus-
sions—is pending before the U.S.
Supreme Court.
The case, Brackeen v. Haaland,
argued before the U.S. Supreme
Court in November, focuses on the
right of Native American families
to have preference over non-Na-
tive families in the adoption place-
ments of Native kids.
As in the Maverick case above,
the plaintiffs in Brackeen v. Haaland
claim the preference is based on
race, rather than the political sov-
ereignty of tribal nations.
A ruling in their favor could fun-
damentally rewrite the way the U.S.
government regards tribal nations,
casting policies created by treaty or
agreements between sovereign na-
tions in doubt.
“It could have really big impacts
on basically every law Congress has
passed that has to do with tribes
and tribal citizens,” said Rebecca
Nagle, a journalist, citizen of the
Cherokee Nation and host of the
‘This Land’ podcast, which has ex-
plored the Brackeen case in detail.
“It’s really the legal foundation
for the rights of Indigenous nations
in this country.”
Same underlying arguments
The two cases share a set of
underlying arguments based on the
idea that federal laws that outline
the U.S. government’s obligations to
Indigenous nations—including the
Indian Child Welfare Act and the
Indian Gaming Regulatory Act—
violate the equal protection clause
of the Fourteenth Amendment.
Those bringing the cases argue
that such laws are racially discrimi-
natory against non-Indigenous
people.
The political status of tribal na-
tions is laid out in the Constitution
and affirmed by hundreds of years
of legal precedent. The U.S. gov-
ernment had to negotiate and, in
nearly 400 cases, sign treaties with
Native American tribes because of
their political, cultural and military
strength. Just as the federal gov-
ernment honors the treaties it has
signed with France or Germany, it’s
bound by those it has agreed to with
sovereign Indigenous nations.
“You don’t make treaties with a
race or an ethnic group,” said
Daniel Lewerenz, an assistant law
professor at the University of
North Dakota and attorney with
the Native American Rights Fund.
“You make treaties with a political
entity, with a sovereign.”
That relationship—one between
political entities—has been the way
U.S. and European leaders have
negotiated with tribal nations since
before the country’s founding, ac-
cording to Lewerenz, a member of
the Iowa tribe of Kansas and Ne-
braska.
Old arguments gain ground
The arguments in both the Mav-
erick and Brackeen lawsuits echo
claims made for decades by groups
seeking to end tribal sovereignty.
One such group is the Citizens
Those bringing the
cases argue that such
laws are racially
discriminatory—
against non-Native
people.
Equal Rights Alliance (CERA),
which attacks tribal sovereignty on
the basis that the federal laws en-
shrining it discriminate against ev-
eryone who isn’t a member of one
of the 574 federally recognized
Native American tribes in the
United States.
“How does the federal govern-
ment promote tribal sovereignty
and not discriminate against the
rest of us?” asked Lana
Marcussen, CERA’s attorney for
25 years.
A 2018 report by the Montana
Human Rights Network listed
CERA as an anti-Indigenous hate
group. CERA rejects the label.
Travis McAdam, the researcher
who authored that report and has
been monitoring anti-Indigenous
groups for decades, said CERA is
the major national advocacy group
for a dispersed anti-Indigenous
movement mostly made up of
small, local groups who focus on
specific tribal sovereignty issues
like water rights, casinos or hunt-
ing and fishing rights.
“Anywhere there is a local or-
ganization or community members
that are opposing tribes on tribal
sovereignty or basically anything,
eventually CERA is going to show
up,” McAdam said.
“At its core, the anti-Indigenous
movement is about destroying
tribal sovereignty, getting rid of
tribes and erasing tribal culture.”
In effect, CERA has for de-
cades nurtured ideas long rejected
by Congress, the courts and a suc-
cession of U.S. presidents. But
within the current climate of ris-
ing extremism and white national-
ism, McAdam worries a major rul-
ing would bring them back into the
mainstream.
“Anti-Indigenous groups have
used those taking points for de-
cades, but the idea that tribal sov-
ereignty and treaty rights somehow
penalize nonmembers—that argu-
ment fits into mainstream circles
now much better than it did a de-
cade ago,” McAdam said.
In the Termination Era begin-
ning in the 1950s, the federal gov-
ernment enacted policies based on
a viewpoint similar to the one es-
poused by CERA and Marcussen:
that Indigenous people should as-
similate into American society and
give up their Indigenous identities,
and that the rights negotiated in
treaties and codified in federal laws
were preventing them from doing
so.
Congress quickly passed 46 laws
terminating 109 tribes around the
United States, including 62 in Or-
egon—more than any other state.
The result was disastrous for
Native Americans.
Termination unilaterally dis-
solved tribal membership and
ended the U.S. government’s obli-
gations toward terminated tribes,
including the services guaranteed
in treaties in exchange for land. Ter-
mination policies also allowed the
government to seize millions of
acres of tribal lands rich with min-
erals and timber.
“The justification for termina-
tion was that the federal trust re-
sponsibility between the federal
government and tribes was hold-
ing Native Americans back,” Nagle
said.
“It’s just kind of a rinse and re-
peat argument, that equality for
Native people is treating Native
people the same as everybody else.
That’s a very coded way to talk
about erasing the special trust re-
lationship that the U.S. federal gov-
ernment has with tribes.”
Members of suddenly landless
tribes scattered, with many moving
from their former reservations to
cities under federal relocation poli-
cies aimed at forcing assimilation.
Termination caused dire social dis-
array and further impoverishment.
For the leaders of terminated tribes,
it also squashed the ability to pre-
vent such harm.
All three branches of the U.S.
government firmly repudiated ter-
mination policy in the 1960s and
‘70s, pushing proponents to the
political sidelines. Two presidents
from opposing parties refused to
enforce termination, the courts re-
affirmed treaty rights, and in 1975
Congress replaced it with the cur-
rent federal tribal policy known as
self-determination.
Indigenous leaders and activists
pushed for more protections of
their rights, and Congress soon
passed more laws, including the In-
dian Child Welfare Act, the Indian
Healthcare Improvement Act, and
the American Indian Religious Free-
dom Act.
And after decades of work,
many terminated tribes eventually
won back federal recognition of
their sovereignty—but not their
land, in most cases.
So modern-day efforts to under-
mine tribal sovereignty ring famil-
iar to people like Lewerenz, the
Native American Rights Fund at-
torney.
“The people who have tried to
get whatever it is that Indians have
— whether that’s land or fish or
children — have always done so by
trying to claim the mantle of equal-
ity,” Lewerenz said.
Key cases share attorney
Maverick Gaming and Chad and
Jennifer Brackeen are also backed
by the same legal team.
The Brackeens are challenging
ICWA, a 1978 law that requires
caseworkers to give preference to
Indigenous families in foster and
adoption placements of children
who are members of a federally
recognized tribe.
The law was aimed at correcting
centuries of injustice.
Between 1819 and 1969, the
federal government took many
thousands of Indigenous kids from
their homes and forced them to at-
tend brutal schools that employed
“systematic militarized and identity-
alteration methodologies,” accord-
ing to a report released by the U.S.
Department of the Interior in May.
After the federal government
ended mandatory attendance at
American Indian boarding schools,
officials continued to remove over-
whelming numbers of Indigenous
kids from their families and place
them in foster or adoptive care out-
side their communities.
When Congress passed ICWA in
1978, studies showed that state child
welfare agencies and private adop-
tion companies were taking between
25% and 35% of Native kids from
their families. And 85% of those
children were placed with non-In-
digenous families.
Native families are still four
times as likely as white families to
have kids removed from their
homes, according to the National
Indian Child Welfare Association.
But some private adoption com-
panies and evangelical groups argue
that the law gives preference to In-
digenous people as a racial group
and therefore violates the equal pro-
tection clause of the Fourteenth
Amendment to the Constitution.
The Brackeens, a white couple,
sought to adopt a 4-year-old girl in
foster care, the baby sister of a boy
they had already adopted. Devout
evangelical Christians, the
Brackeens told The New York
Times they saw adoption of foster
kids as a way to “rectify their bless-
ings.”
The Navajo Nation wanted to
place the girl, who is Cherokee and
Navajo, with a Navajo family, as
laid out by the Indian Child Wel-
fare Act. But when that placement
fell through, both Indigenous na-
tions supported the Brackeens’
adoption.
Despite their happy ending, the
Brackeens are the lead plaintiffs in
a federal lawsuit claiming the act is
based on a racial preference that
unfairly prioritizes Indigenous fami-
lies as adoptive parents.
For a child welfare dispute that
started out in a small Texas family
court, the Brackeen case draws un-
usual firepower.
Texas Attorney General Ken
Paxton intervened in the case on
the couple’s behalf.
And Matthew McGill, an attor-
ney with the high-powered firm
Gibson, Dunn & Crutcher who ar-
gued the Citizens United case be-
fore the Supreme Court in 2010,
took the Brackeens’ case pro bono.
He argued on their behalf before
the U.S. Supreme Court in Novem-
ber.
His law firm is also known for
representing Chevron in the
longstanding lawsuit filed by Indig-
enous communities in Ecuador, as
well as Energy Transfer Partners,
architect of the Dakota Access
Pipeline. The latter proposal has
drawn fierce opposition from the
Standing Rock Sioux Tribe, along
with the Yankton Sioux, the Oglala
Sioux and the Cheyenne River
Sioux Tribes, who say the pipeline’s
route under nearby Lake Oahe
threatens their main source of
drinking water and could pollute the
waters they hold sacred.
McGill also successfully argued
the Supreme Court case that led to
the court’s 2018 ruling allowing
states to legalize sports betting. The
firm counts among its clients sev-
eral major international casino op-
erators.
Two years after McGill’s win in
the sports betting case, Washington
Gov. Jay Inslee signed a bill allow-
ing sports betting only under
Washington’s tribal-state gaming
compacts, setting the stage for the
Maverick lawsuit.
In January 2022, McGill filed
the Maverick lawsuit, as well. He
did not respond to requests for an
interview.
On its surface, the case is con-
nected to his litigation around bet-
ting and gaming. But the legal ar-
guments parallel those of the
Brackeen adoption case.
Lewerenz said both cases could
result in rulings that cast tribes as
“merely private associations of
people with a common racial an-
cestry.”
“If that happens,” Lewerenz
said, “then it’s hard to understand
why they would have any govern-
ing power, any political power.”
Nagle said that power flows
from tribes’ unique position as sov-
ereign nations that predate the
United States.
“What racial group in the United
States has its own land?” she asked.
“Its own water rights and environ-
mental regulations? Its own police
force, its own elections, its own gov-
ernment?”
Tribes fear they stand to lose al-
most everything: their right to self-
governance, the resources to pre-
serve their culture and traditions,
and the main economic engine that
provides for basic tribal services.
But for those with interests in
the private casino industry, such a
change could be a boon. The same
goes for corporations looking to
develop oil and gas leases without
interference from Indigenous na-
tions, whose right to co-manage the
lands they stewarded for millennia
is increasingly recognized by the
federal government.
Gaming change could dev-
astate tribes
The Washington State Legisla-
ture authorized gambling only for
the state lottery, for tribes, for
charitable and nonprofit gaming
and, in a much more limited ca-
pacity, as a financial boost for bars.
But dozens of non-tribal, for-profit
card rooms have expanded the
category.
“Those food and beverage es-
tablishments have somehow be-
come these massive mini casinos,”
said Rebecca George, executive di-
rector of the Washington Indian
Gaming Association.
That’s where Maverick stepped
in.
Its CEO, Eric Persson, declined
repeated requests for an interview.
But in press releases and news ar-
ticles about the lawsuit his com-
pany filed, Persson says he sup-
ports tribal sovereignty.
In fact, Persson is a member
of the Shoalwater Bay Indian
Tribe, a tiny community located an
hour southwest of Hoquiam,
Washington, where he grew up. The
tribe gave Persson a partial schol-
arship every semester, according
to his spokesman, from undergrad
through law school at Georgetown
University. Persson is one of over
100 members the tribe estimates
it has helped send to college.
Now, the tribe says, his lawsuit
could devastate the tribe’s ability
to provide government services to
its citizens—including its scholar-
ship fund.
The Shoalwater Tribe is fight-
ing for survival on several fronts.
Its reservation is a tiny piece of
land. The single square acre set
aside by the U.S. government in
1866 is big enough to house the
tribal headquarters and not much
else. Rising sea levels caused by
climate change have eaten into that
territory as the ocean has slurped
up houses on what used to be for-
ested land above high tide.
“Half the reservation is under-
water,” said Larry Kerns, the tribe’s
chief financial officer.
The tribe is using gaming rev-
enue to painstakingly buy back
small chunks of its homelands, in-
cluding areas atop nearby hills that
would be a safer place to live. The
tribe now owns nearly 5,000 acres.
“It’s our land and we want it
back,” Kerns said. “Unfortunately,
we have to buy it back. They stole
it from us, and we have to buy it
back.”
(from page 1)
The Shoalwater tribal government
made about $7 million last year in
gaming revenue, according to Kerns.
It pays for most of the tribe’s gov-
ernmental services, including educa-
tion, tribal housing, elders’ pensions,
child welfare services, tribal policing
and administration.
“Gaming income funds basically
everything,” Kerns said. “Without
it, we’d have to cut our programs
by about 70 percent.”
The Maverick case threatens it
all.
In 2018, the company bought
about half the card rooms in the
state, adding to the casinos and card
rooms it already owned in Nevada
and Colorado.
See Sovereignty on 10
Underscore News
The Shoalwater Casino funds most of the tribal services.