Indigenous Justice is Foundational to Civil Rights – and Under Attack

Friday, October 7, 2022
By Bree Black Horse, enrolled member of the Seminole Nation of Oklahoma and member of the ACLU-WA Board of Directors and Vanessa Torres Hernandez, Integrated Advocacy Director, ACLU-WA

Today, we commemorate Indigenous Peoples’ Day. We all live, work, and play on the ancestral homelands of Indigenous peoples who have stewarded these lands since time immemorial. We therefore honor the culture, contributions, and resilience of Indigenous people, today and throughout history. Indigenous people have overcome centuries of violence and governmental efforts to undermine their rights and very existence. Today, Indigenous people in Washington continue to protect their culture and traditions, fight for their rights, and work to build a world where everyone belongs.

The evidence of Indigenous peoples’ resilience and contributions to our community remain all around us. This year, over 100 people gathered to advance religious rights by hosting a powwow at the Washington State Department of Corrections; the Chief Seattle Club opened an affordable housing complex and medical clinic to support American Indian and Alaskan Native people in Seattle, and Indigenous-led organizations and tribes worked to combat systemic and disproportionate police violence against Native Americans.

For the ACLU of Washington, Indigenous justice and civil rights are inextricably linked. Indigenous people are disproportionately likely to be deprived of their rights in the civil and criminal legal, health, and education systems. This means Indigenous people are disproportionately likely to be stopped by law enforcement, searched, arrested, subjected to force and violence by police, killed by law enforcement, convicted of felonies, and incarcerated.1 Indigenous people are also disproportionately assessed fines and fees by the criminal legal system, further draining resources from their communities. They are more likely to lack health insurance, to be unable to afford the cost of medical care, access to healthcare, and to die prematurely.2 Indigenous children face the highest rates of suspension and expulsion from school and have the lowest graduation rates of any group.3 And, Washington continues to remove Native children from their families and destroy Native communities at rates far higher than other groups. 

These harms cannot be isolated from history. For two centuries, the United States has waged a campaign of genocide and ethnocide against Indigenous peoples. This systematic persecution of Indigenous peoples has been fueled by the implicit and explicit racism, bias and greed of non-Indian people. In its effort to eradicate Indigenous peoples, the U.S. government intentionally manipulated our legal and political systems into weapons of colonization and oppression, using our justice systems and democracy itself to systematically dispossess Tribal Nations of their ancestral homelands, inherent authority, natural resources, cultures, and even their children.  In the fight to address discrimination and oppression in our systems, we must work in solidarity with the Indigenous peoples impacted.

But the ACLU-WA’s commitment to Indigenous Justice goes beyond working to prevent discrimination against Native people in governmental systems. We also affirm the inherent rights of Indian Tribes, including the 29 federally recognized Indian tribes in Washington, to self-governance and self-determination. This principle, called “tribal sovereignty” is a necessary component of Indigenous justice. 

Tribal sovereignty is not a set of “special” rights. Rather, its roots lie in the fact that Tribal Nations pre-date the founding of the United States, and their sovereignty has not been terminated. The U.S. Constitution, legal precedent, treaties, and the applicable principles of human rights all recognize and honor Tribal sovereignty.

Tribal sovereignty is, however, under attack in both the state and federal courts. Next month, the U.S. Supreme Court will hear oral argument in Brackeen v. Haaland, a case challenging the constitutionality of the federal Indian Child Welfare Act (ICWA). ICWA is a federal law that addresses generations of violence perpetrated by governmental actors against Indigenous communities. State and federal governments have a long history of forcibly removing Indigenous children from their homes and families with the goal of forcing those children to assimilate to white culture and eventually eradicating Indigenous peoples and tribes. The trauma of this history remains ongoing and pervasive. Spurred by decades of Indigenous-led advocacy, Congress passed ICWA to protect Indigenous children from continued forced removal by state actors and to strengthen Tribal sovereignty.  

As Justice Raquel Montoya Lewis, the first Native American justice to serve on the Washington Supreme Court, recognized, “[i]n Native American communities across the country, many families tell stories of family members they have lost to the systems of child welfare, adoption, boarding schools, and other institutions that separated Native children from their families. This history is a living part of tribal communities, with scars that stretch from the earliest days of this country to its most recent ones.  There are virtually no other statutes more central to rectifying those wrongs that the Indian Child Welfare Act. . . . [which was] enacted to remedy the historical and persistent state-sponsored destruction of Native families and communities.”

The challengers to ICWA including three states and individuals funded by special interest groups adverse to Indian tribes make a host of arguments that, if accepted by the Supreme Court, could have devastating consequences for Indigenous children, families, and tribes while simultaneously putting the existence of tribes in jeopardy. Fawn Sharp, the vice chair of the Quinault Indian Nation, reminds us “[t]his latest assault on ICWA . . .is based on the same fundamentally flawed argument that ignores the sovereignty of tribal nations and the benefits to Native children of growing up with access to their traditions.” 

Indigenous people are still here, resisting colonialism by continuing to defend their ancestral homelands, resources, cultures, and children, and by fighting to advance the rights of all Indigenous peoples. ACLU-WA remains steadfast in its support of Tribal Nations and Indigenous peoples in their advancement of Indigenous justice and Tribal sovereignty. 
Explore More: