Native American Heritage Month: An Issue of Race and Sovereignty

December 4, 2022 by


November is Native American Heritage Month. Although the calendar page has turned, it is perhaps, even more important to remember its significance.  Since 1990, this month has been set aside to recognize and celebrate Native American’s contributions and their rich traditions and culture. This year the celebration has been overshadowed by two recent cases heard in the U.S. Supreme Court. The cases challenged the Indian Child Welfare Act (ICWA) and college’s race conscious approach to admissions, leaving uncertain the future of tribal sovereignty and racial identity.


Haaland v. Brackeen takes aim at ICWA

The ICWA is a federal law passed in1978 with the goal of preventing Native American children from being haphazardly taken from extended families and their tribes in adoption proceedings. Congress acted because large numbers of Indian children were being placed in non-Native homes and tribes saw it as a threat to their existence.

The law, not without its problems in its implementation, does not prevent Indian children from being placed in a non-Native home; rather, it builds protections into the process, including notification to tribes, and provides for a preference in placement to child’s extended family, other tribal members, and then members of different tribes.

In the Haaland case, critics of ICWA mounted an equal protection and 10th Amendment challenge. The backbone of the counter argument is that the analysis must include tribes’ status as sovereign nations, as recognized for centuries in our jurisprudence. Further, a Native child’s identity is not separate from his or her tribe and the placement of an Indian child should include the consideration of the child’s relationship with relatives, their Native language and religion, and tribal culture, customs, and tradition.

While these considerations are typically part of the equation for any adoption, when it comes to tribes and its members the unique trust relationship that the federal government has with tribal entities which are sovereign nations is a remarkable differentiator. The analysis goes beyond race.


Students for Fair Admissions cases target the race conscious approach

Similar issues arose in the two companion, college admission cases — Students for Fair Admissions v. University of North Carolina and Students for Fair Admissions v. Harvard.

Opponents of the race conscious approach mounted a challenge to the college admissions programs, including those employed by UNC and Harvard, that take race into account as a part of the goal of achieving a diverse student body. They favor an admissions process which precludes the consideration of race.

UNC counsel made clear that race, when considered, is not a decisive factor equating to an immediate acceptance. Also, it is not a quota system. Instead, race is one among 40 factors that can be looked at as part of a holistic approach to create an incoming class that is diverse.

It is argued that a diverse college population may improve learning and awareness which in turn can reduce stereotypes and prejudices; promote discussion, perspective, and innovation; and ultimately prepare students for the complex world they will enter.


ICWA’s preferences is akin to race conscious admissions

The concept of race and tribal membership are interwoven in an individual. Though the legal analysis of the ICWA and college admission cases is very different given the political classification of tribes goes beyond race, there is an intersection of these issues. A court’s inability to give preference to the placement of a Native child in a tribal member’s home is akin to a college admission committee’s inability to consider the race and tribal membership status of an applicant. It is disingenuous to say you can consider one without the other.

Striving to preserve our identity as a nation includes the preservation of Native American tribes. Our society has a vested interest in giving a Native child the chance to learn their language, experience their culture, and carry-on century old religions and traditions. Likewise, the promotion of our diverse nationality depends on equity and inclusion on our college campuses which often serve as the entrance to society.

Justice Clarence Thomas commented during the oral argument in the college admissions case that he had heard “diversity” quite a few times but didn’t have a clue what it means.

With all due respect Justice Thomas, let me explain – diversity means variety in the make-up of qualities, attributes and characteristics of an entering class including but not limited to gender, athletic-ability, socio-economic status, experience, culture, community-achievement, religion, ethnicity, geographic location, sexual-orientation, disability status, and yes – race.

We collectively have worked hard to get to this point, though there is more to be done. Halting or worse, reversing the progress that has been made for Native Americans is worth paying attention to not only during this celebratory month but in the months and years to come.


Diversity is nothing to be feared rather, as Maya Angelou said, “in diversity there is beauty and there is strength.”


About the Author

Heather FullerAttorney

Heather Fuller, a seasoned litigator with extensive federal experience, has handled cases in courts across the United States.  Her innovative approach to each case, coupled with her sound judgment and ability to solve complex problems, makes her a strong advocate for her client.

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