Haaland v. Brackeen and the Logic of Discovery

Abstract

On June 15, 2023, the U.S. Supreme Court handed down a decision in Haaland v. Brackeen, withholding the constitutionality of the 1978 Indian Child Welfare Act (ICWA). The ICWA was enacted to protect Indigenous sovereignty, but the Brackeens argued that its preference to Native American families in the fostering and adoption of Native American children amounts to racial discrimination, an argument the court did not substantively address because it judged the Brackeens lacked standing. Viewing indigeneity in terms of race rather than sovereignty follows a logic of discovery, promoted in fifteenth-century papal bulls and read into U.S. law in the nineteenth century by Chief Justice John Marshall. A secularized version of the doctrine of discovery has supported the U.S. government’s assimilation policies, including the forced removal of Indigenous children from their homes and into boarding schools, land allotment, and the Indian adoption project. While the Brackeen case was decided in favor of the Indigenous respondents, the decision’s reasoning is too narrow to inspire confidence that Indigenous sovereignty will withstand future challenges.

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