Convergence Newsletter November 2022

11/21/2022A Monthly Newsletter from the Romero Institute
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Romero Report

Current events, new perspectives on history, and more

Want a deep dive into Brakeen v. Haaland and what it could mean for Native America? Join Romero Institute President Dan Sheehan as he breaks this case down point by point and fills in important context that reveals the true nature of this latest assault on Indigenous rights.

Romero Events

Upcoming gatherings you won't want to miss!

This month the whole Romero team is excited to invite you to two upcoming events:

  • The 2nd Annual Giving Tuesday Wopila Gathering livestream, today November 29th at 4:00 pm PST, hosted by the Romero Institute's Lakota People's Law Project. Legendary activist and LPLP team member Madonna Thunder Hawk and her granddaughter DeCora Hawk will be breaking down the recent developments with ICWA. Conversations by other Lakota Law leaders on "Water is Life" and "The Native Vote" will also take place — you don't want to miss this!

  • The first Romero Institute Roundtable on December 12th from 3:00 to 5:00 pm PST. Anyone who donates any amount to Romero or either of its projects, will be invited to participate in this virtual Town Hall event where we will go over this year's accomplishments and lessons learned and, together, set the vision for 2023.

Romero Review

A letter from the leaders of the Romero Institute

“Our children are not yours to take.”

Anonymous Lakota parent

Dear friend of justice,

This is Dan Sheehan, our Romero Institute President and Chief Legal Counsel, writing to you to share some insights into the most heinous assault on Indigenous sovereignty in recent memory: the attempted overturning of the Indian Child Welfare Act (ICWA) in the Supreme Court. This assault is being mounted, jointly, by the national law firm of Gibson, Dunn & Crutcher (the very same law firm that represents the Energy Transfer Partners Corporation and the Dakota Access Oil Pipeline Corporation) and the American “Academy” of Adoption Attorneys (with the aid of the arch-conservative Goldwater Institute) to try to get the U.S. Supreme Court to strike down ICWA as being unconstitutional.

The Romero Institute has a long history advocating for the rights of Native American children through our Lakota People's Law Project, which we started back in 2006 after a group of Lakota grandmothers approached Romero Executive Director Sara Nelson and me, asking for our help in stopping the widespread state-sponsored kidnapping of Lakota children through discriminatory foster care practices. After conducting a serious investigation of the Department of Social Services practices regarding Native families in South Dakota, and after having our conclusions of illegality and monetary corruption independently conveyed in an award winning series on National Public Radio, we were asked in 2014 by the Justice Department to write enforcement procedures for ICWA. The approval and issuance of these Romero Institute-drafted compulsory enforcement guidelines of ICWA triggered the filing of the Texas federal lawsuit that is presently before the United States Supreme Court.

A Lakota family home on the Pine Ridge Reservation.

If you haven't been following the recent news around ICWA, it is now under consideration by the U.S. Supreme court in the case Brackeen v. Haaland on the grounds that it is racially discriminatory because it establishes a preference for placing Native American foster children either in their extended families, their tribe/reservation, or, all else failing, nearby tribes. Astute readers may recognize the fallacy of the argument being made by the Gibson Dunn lawyers (who represent the interests of the oil companies and commercial adoption attorneys who have bragged about “making up to $100,000 per Indian child” when they place them with affluent white couples) claiming Native Americans are a race, when in fact they constitute sovereign political entities recognized by the U.S. government since 1789 — raising the question of why such a transparently ignorant lawsuit has been elevated to the highest court in the country.

As stated above, the law firm behind this case is none other than Gibson Dunn, the same firm hired by Energy Transfer to protect its Dakota Access Pipeline. Gibson-Dunn partner Matthew McGill, who gave oral arguments in a recent hearing on the case, is representing the plaintiffs pro bono. That's right, representatives of an oil pipeline that has been ruled illegal after massive Indigenous-led public resistance launched one of the most significant attacks on the legal rights of Native Americans since the siege at Wounded Knee, back in 1973 — the same event that triggered Congress to investigate the treatment of Native Americans by states and eventually pass ICWA in 1978.

Sacheen Littlefeather representing Marlon Brando at the 1973 Oscars, announcing that Brando was refusing to accept Best Actor for his role in The Godfather in support of the then-current Wounded Knee Occupation and in protest of the overall poor treatment of Native Americans by the film industry.

This makes clear that this “magnanimous gesture” on the part of the multi-million dollar-a-year law firm of Gibson-Dunn is an effort on the part of the Oil Industry to undermine the continuing viability of the Native Reservation Communities by facilitating the forcible removal of the Indigenous children from their tribal lands — just as the mining and land corporations of the 1850s and ‘60s undergirded the effort to force Indian children into the dreaded Indian Boarding Schools of the 19th and 20th centuries.

Here are the four main points Gibson-Dunn raised in their recent oral argument on November 9th:

1. Does Congress have the authority to create laws that determine how states treat Indian affairs, like ICWA?

Nearly half of the three-hour oral arguments was spent debating this point, which is the most fundamental of the four but had received scant attention in previous hearings. The Gibson Dunn attorneys argued that individual states should be determined by the Court to have constitutional authority to decide whether it is in the best interest of Native children to be placed outside their families and culture.

The ICWA defense asserts that certain states were violating the sovereignty of Native Americans by unjustly removing Native children from their families, which is why Congress was compelled to take action to create ICWA. For example, in the decades prior to ICWA, nearly one third of all Native children in the United States were removed from their families, sometimes literally snatched from yards or schools without giving the family notice, and placed in white homes. Many states like North Dakota, South Dakota, and Texas, decided that the mere fact a child was Native was enough to label them as "special needs" children who could be medicated against their will (while the white foster family received a sizable stipend from the state to impose this regimen). The intergenerational impacts of traumatically ripping children away from their families and cultures and placing them in racially-discriminatory communities where they are pumped full of psychoactive drugs against their wills cannot be overstated.

We defenders of ICWA before the Supreme Court, like myself, and former Senator James Abourezk, (a member of our LPLP Advisory Board and the author of ICWA, and on behalf of whom we wrote the Amicus Curiae brief defending ICWA), argue that these states were violating the sovereignty of Native American Tribes by unjustly removing their children from their families and involuntarily placing them in all-white settings. State Department of Social Services personnel and authorities actually believed that being put in a wealthier, modern-educated, more “American-culturally integrated” (virtually always white) family would be in the best interests of the child — a direct extension of the “kill the Indian, save the man” mentality of past anti-Indigenous genocide campaigns.

Indigenous "students" at the infamous Carlisle Indian Industrial School, which opened in 1879 with the mission to "Kill the Indian, save the man". At least 200 Native American children died here in the four decades this school was open.

We ICWA defenders argued that such a substantive decision pertaining to what treatment is to be accorded to Indian children by State authorities “in the best interests of an Indian child” is one of the issues that is part of the governance of “Indian Affairs” that was “expressly reserved” for the Federal Government by Article I of our United States Constitution (and expressly withdrawn from the States) with the ratification of Article I of our Constitution by three-fourths of all of our nation’s State Legislatures in 1789, thereby replacing the “legal regime” that had existed under our earlier Articles of Confederation.

2. Does ICWA place an undue financial burden on states?

This second argument was made by the Gibson-Dunn law firm on behalf of the adoption attorneys, and it received relatively little attention during the recent hearing, with only Justice Barrett seriously considering it. Essentially, the Gibson-Dunn attorneys claimed that implementing ICWA imposed an “unconstitutional” cost on States (thus "commandeering" State resources). Justice Gorsuch quickly dismissed this argument as "silly," raising the point that ICWA also creates requirements for private adoption agencies to take “active measures” to preferentially place Indian children with Native families, not just state agencies. I suspect this point will play a very minor role in the eventual ruling.

3. Is the placement of Native children preferentially with Native families racist toward non-Native people?

Without even touching on the issue of whether it is possible for there to be racial discrimination against white people when the entire sociological and legal structure of racism is predicated upon the disproportionate power wielded by a white majority within our governmental structures, this point was easily rebutted by the defenders of ICWA because it is a now well-accepted legal precedent for the past 200 years that the U.S. government recognizes Native American tribes to be fellow sovereign governments — that is, as “political” communities rather than a “racial” class.

Map of federally-recognized tribal lands in the United States. These lands belong to the free and sovereign Native American nations that reside therein — not to a "Native American race". Source.

4. Does the ICWA mandate that Native children be placed with a Native family outside their own tribe or reservation before being considered for placement with a non-Native family constitute an unconstitutional “racial” discrimination against non-Natives?

If you aren't entirely familiar with the particulars of how ICWA works, it essentially sets up a hierarchy of “preferences” governing where a Native foster child should be placed before being considered, by State officials, to be placed with a non-Native family: first to their immediate or extended Native family; then to a family in the child’s tribe; then to another Native tribal family located on the same reservation; but, lastly, to another Native tribe other than the child’s Tribe — and potentially, not on the same reservation. It is this last option that the Gibson-Dunn attorneys incorrectly argue constitutes specific instances of racial discrimination against non-Native parents.

~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~

I believe and hope, listening to the oral arguments, that ICWA will survive to continue protecting Indigenous children in this country. Let’s remember, the extraction industries want to access the oil, gas, uranium, gold, and other minerals on Native lands. It is in their interests to destroy tribal sovereignty and allow States to deplete the population of the tribes. Without their children, there will ultimately be no future for Indigenous People in the United States. The illegitimate “terrible taking” of Native children is a profoundly cruel practice that rips the very hearts out of Native parents, families, and tribes for decades. The upholding of ICWA, with its new enforcement procedures, is the only correct conclusion that can be arrived at by the Supreme Court in alignment with the Constitution and our treaties… as well as with fairness, humanity, and justice.

We are grateful to the Native American Rights Fund, who coordinated with the many organizations who submitted Amicus Curiae to stand with all Native people throughout our country.

Thank you for supporting our work at the Romero Institute and the Lakota People’s Law Project. You make it possible for us to make a difference on the front lines of systemic injustice.

For a better tomorrow,

Daniel Sheehan

President & Chief Legal Counsel

The Romero Institute


Me (white hair) with my incredible colleagues (left to right) Phyllis Young, Chase Iron Eyes, and Madonna Thunder Hawk at the NoDAPL protest camp, Standing Rock, 2018.

Romero Reads

Highlighting important writings from around the world

For this month's reading we're pulling from our archives to share with you one of Lakota People's Law Project most impactful reports: The Case for Tribal IV-E. Written after a decade of research and investigation into the illegal state-sponsored kidnapping and drugging of thousands of Native American children in South Dakota, this paper lays out the argument for increased federal funding for Native-run foster care services (known as IV-E) and ensuring states including South Dakota are abiding by the Indian Child Welfare Act (ICWA). This is important context for the current assault on ICWA in the Supreme Court as it shows the systemic, ongoing nature of these attacks on Indigenous rights, and the deep underlying prejudice that fuels them.

--D.P.S.

Additional Resources

Interesting and noteworthy finds

1.

This latest attack on ICWA didn’t come from nowhere; our team has been following it closely for years and has amassed a huge body of knowledge around it. Former LPLP staffer Sarah Rose Harper lays out the whole story in this excellent blog from last year, providing lots of resources for you to dig even deeper into this fascinating and important case.

2.

If you’re interested in exploring the connections between Indigenous resistance and Big Oil, this 2021 report from the Indigenous Environmental Network and Oil Change International documents how Native-led activism in North America has prevented or delayed at least one quarter of all U.S. and Canadian emissions — a figure that represents billions of dollars of lost profit from the fossil fuel industry. Paying the legal fees for the prosecution in Brakeen v. Haaland seems a small price to pay to get some of those profits back…

3.

The court system isn’t the only battleground on which fossil fuel interests are fighting to end Indigenous sovereignty. As the deployment of both private military contractors and militarized police at the Dakota Access Pipeline protests at Standing Rock showed, Big Oil is more than ready to bring the war tactics they’ve honed for decades killing the indigenous peoples of Asia and South America for their fossil fuels back home to American soil. This fantastic exposé series by the Intercept documents in detail how these private companies exploited public taxpayer resources and advanced military technology to ram through an unvetted, unneeded oil pipeline.

Thanks for reading! Join us again next month, and please follow us on social channels @RomeroInstitute for up-to-date coverage of our justice work.

- Danny Sheehan, Sara Nelson, and the rest of the Convergence team

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