When a government official starts talking about sovereignty, most of the time you can bet they’re trying to justify a bad policy or decision by invoking the sovereignty won by the Founders from the hated British. Shouting sovereignty to obfuscate political failure is a tried-and-true American political tactic going all the way back to the southern slave states.
In the arena of Indian affairs, state claims to sovereignty usually work. You can be sure that when state officials claim the mantle of sovereign rights, they are trying to shut down the governance efforts of Indian tribes. Tribal leaders shout sovereignty right back at the states. But states usually win these clashes. The Constitution, after all, protects and defines state sovereignty—and leaves tribes out of the federal-state mix.
In recent years, however, tribes have been more successful at empirically verifying their claim to sovereignty, what Angela Riley of the UCLA School of Law called “good Native governance.” “Good governance” is a principle from modern international law that privileges successful government over formalistic claims to sovereignty. In short, tribes that govern better than states should begin to prevail.
In some cases, they have.
Consider last year’s high-profile Supreme Court decision in McGirt v. Oklahoma. That case was about whether Congress had terminated the Creek Reservation more than a century ago. The state of Oklahoma seemed to know it would lose that case on the historical question (and it ultimately did), so it asked the Court to think more about the jurisdictional confusion that would arise if the tribe won. The state’s policy-based claims were odd. Other than aggressively pursuing lengthy prison terms for criminal offenders, Oklahoma does little governing. It’s a state where the lack of pollution controls created persistent contamination known as “legacy pollution.” The state’s schools are near the bottom nationally. It’s one of the worst states to be a woman and one of the worst states to be a man. Years ago, after I presented an “Indian Law 101” to a group of prominent Oklahoma businesspeople, one of them asked me why the tribes had so much money when the state was basically bankrupt. I didn’t know the answer then, and don’t know it now, but the Muscogee (Creek) Nation’s brief in McGirt (and the brief of the other large Oklahoma tribes) established the good governance bona fides of the tribe. The brief showed that the tribe had already put forth considerable effort to be ready for additional law enforcement duties in the event they won the case. They had even bought and reopened rural hospitals that had closed. In meaningful ways, the state of Oklahoma trails the tribes in governmental capacity. The Muscogee (Creek) Nation is earning their sovereignty.
Consider Alaska. Nearly a decade ago, the Indian Law and Order Commission, a bipartisan group convened by Congress to study crime in Indian country, concluded that the state of Alaska’s centralized control over law enforcement throughout the state was a direct cause of rising rates of violent crime against Indian women and children. Nothing much has changed since that report. There are 229 federally recognized Indian tribes in Alaska. Many of them are attempting to develop justice systems, but they have never had the support of the state. The commission reported that the state opposed tribal authority because it might create jurisdictional complexities. (See this analysis by Samuel Gottstein, now an Alaska lawyer.) It’s as if Alaska state officials were more concerned with protecting amorphous jurisdictional turf than with remedying ineffective law enforcement. In 2021, Alaska’s police seem more interested in avoiding COVID-19 vaccinations than fighting crime.
Despite the state’s foot dragging, Alaska tribal governments are prioritizing public safety and child welfare. Until recent years, there were few tribal courts in the state. Now they are springing up all over and leading Alaska in creative rural justice. The tribes are starting from nothing, and it will take years and maybe decades to see significant progress. But what those tribes are doing is the epitome of modern-day tribal sovereignty. Tribes are asserting governmental power to help people; too many states are hiding behind it to avoid accountability.
Oklahoma and Alaska are just two examples. Indian tribes are routinely stepping in to assert tribal sovereignty wherever we see the mission-critical failure of state governments throughout the country.
In South Dakota, for example, when COVID infections were sweeping the state and threatening Native Americans, the state did absolutely nothing to fight the pandemic. Tribes took preventative action to protect their people, leading to a legal fight when the state governor sought intervention from the Trump administration. In Wisconsin, the state legislature authorized a wolf hunt unmoored from basic scientific knowledge and looked the other way when non-Native hunters violated the state’s limits. Wisconsin tribes, armed with treaty rights and science, are attempting to stop additional wolf hunts.
In each of these examples, Indian tribes have attempted to assert their sovereign powers to help people. In each instance, state officials tried to block tribal efforts. For the most part, the states are justifiably losing. But not in every case.
Nowhere is the contrast between good tribal governance and failed state government more glaring than in the federal lawsuit over the constitutionality of the Indian Child Welfare Act. In Texas, the state child foster care system is a human rights calamity, where the physical, sexual, and emotional abuse of children is the norm. The state’s response was not to take responsibility, but to challenge the constitutionality of the ICWA. Texas now faces $75,000 daily in contempt of court sanctions as a result of its continued failure to reform the child welfare system.
The Texas case is not really about child welfare; the state’s own child welfare agency “fully supports” the ICWA, as it stated in its 2015 comments submitted in response to the proposed federal ICWA regulations. The suit is pure political theater. Accepting Texas’s challenge, the Fifth Circuit Court of Appeals, which covers Texas, Louisiana, and Mississippi, recently struck down several parts of the ICWA as violative of states’ rights.
A national coalition of child welfare agencies told the Supreme Court in 2013 that the ICWA is considered the “gold standard for child welfare policies and practices that should be afforded to all children.” Before the act, parents (Indian and non-Indian) whose children had been removed by the state after allegations of abuse and neglect rarely had basic due process protections. States have 48 or 72 hours after removing a child to hold an emergency removal hearing that justifies their actions, but they were not providing notice of the hearing to affected parents. If families did show up, courts would not allow them to testify, present evidence, or cross-examine witnesses. The ICWA required states to provide minimum procedural protections to Indian families.
The act also requires states to take “active efforts” to reunify Indian families. Most states rush to terminate parental rights where they can find an adoptive family. Though it only applied to Indian families, the ICWA has changed the legal culture of child welfare in this country. Nine states, including several red states, have adopted the ICWA as state law. With important exceptions, such as the right to counsel for indigent parents, states improved their child welfare systems to meet the act’s requirements for all.
After four-plus decades of the ICWA, Texas suddenly has decided that the act is unconstitutional. Texas doesn’t want to comply with the minimum due process requirements for Indian parents and doesn’t want to make active efforts to reunify families. For Texas, children are a costly burden that it very much would like to turn over to the private sector. Texas doesn’t care about good governance. Texas cares about the Tenth Amendment.
Indian tribes, on the other hand, are true laboratories of best child welfare practices. Proportionally, Indian tribes dedicate far more government services money to child welfare than any state. Tribes develop healing to wellness courts. Tribes fight the termination of parental rights whenever they can. Tribes go the extra thousand miles to try to reunify their families who struggle.
The ICWA case soon will be in front of the Supreme Court. The Court will, of course, focus on the legal questions, but the backdrop to that case will be whether sovereignty or good governance prevails.