The Supreme Court ruled for Native American sovereignty on Thursday when it upheld the 1978 Indian Child Welfare Act (ICWA) in the case Haaland v. Brackeen. The ICWA was established to stop the removal of Indian foster children and adoptees from their families and tribes — a common practice throughout the 1950s and 1960s when 25-35 percent of Native American children were placed with families outside of their original communities. The ICWA gives priority to placing Native American children first with members of their extended family, second, with members of their tribal nation, and third, with members of another tribal nation. The plaintiffs primarily consisted of non-Indigenous adoption parents who believe the ICWA discriminates against their ability to freely adopt Indigenous children.
The plaintiffs found a surprising advocate on their side during the oral arguments: the Texas Solicitor General Judd Stone, who argued that the ICWA was a gross federal overreach and an example of “invidious race discrimination” because it applied to Native American children who are not registered members of a tribe. In other words, Stone argued that because the ICWA applies to Native American children located off-reservation and who do not belong to a tribe, it goes beyond recognizing tribal sovereignty and instead treats one group of children differently purely based on their race.
At first glance, it seems odd that any state would join this lawsuit. The case has clear stakes for tribal and nontribal families, but Stone argued that the ICWA involves state governments because it effectively forces the “states to administer a nationwide child custody regime.” Stone advocated an expansive view of state government powers, a view that has enabled and justified past abuses against Native Americans. When seen through the lens of history, Texas’s actions in Haaland v. Brackeen represent only the latest efforts of the state’s protracted challenge to Native American sovereignty. Understanding the longer past of disrespect, dispossession, forced migration and mass slaughter remains essential to challenging Texas’s longtime antagonism toward Native Americans.
In the 18th and 19th centuries, Spanish, Mexican and Anglo settlers harassed, corralled and attacked Texas’s Native American population. While some Indigenous groups, such as the Karankawas, tried to negotiate relations with Europeans, other groups, like the Caddos and Comanches, resisted European encroachments and traded with the Europeans on their own terms. As more and more White immigrants flooded into Texas, many with enslaved African Americans in tow, relations with Native Americans worsened.
The rapid expansion of the United States from 1800 to 1830 pushed Cherokees into Texas and Indian Territory (present-day Oklahoma). During the 1836 Texas Revolution for independence from Mexico, Sam Houston and other Texans worked to ensure the neutrality of the newly arrived Cherokees. Unusually among the Anglo population, Houston had been an adopted member of the Cherokees and had even been married to a Cherokee woman at one point. He pushed Anglos to recognize Cherokee sovereignty and treaty obligations. When he became the first president of the Republic of Texas he sought to maintain respectful ties with the Cherokees and other Indigenous groups.
But Houston’s successor — a renowned antagonist of Native Americans — Mirabeau Lamar reversed this course and established a violent model for how White Texans would treat other Native American groups. In 1839, he sent troops to northeast Texas to push the Cherokee Nation out of the territory. After a series of battles, Lamar’s forces won and the Cherokees left the state.
A year later, in 1840, Texas government officials invited several Comanche leaders and their families to San Antonio to negotiate a peace settlement. When the Comanches refused to concede to the Texans’ demands, the Texas officials ordered them held as hostages. When the Comanches attempted to escape, Texas soldiers slaughtered the Comanche leaders as well as several of the women and children. What became known as the Council House Massacre was an affront to Comanches and other Native American groups who considered peace envoys protected.
When the Republic of Texas agreed to annexation by the United States in 1845, there was a chance to stop such violence. In fact, the two sides reached a unique agreement. Unlike other newly created states, Texas retained control of its public lands, rather than surrendering them to the U.S. federal government. Therefore, Texas could have ceded territory to Indigenous groups, and given them the same recognition and sovereignty Texas had claimed from Mexico. At the very least, the state could have created reservations for all of the tribal nations within its borders.
But instead, Texas chose a policy of removal and genocide. The Texas government created the Texas Rangers, a militarized police force, which terrorized Native American civilians and engaged in pitched battles against Native American fighters. The Rangers developed a brutal strategy of targeting Native American communities when they hunkered down during winter. In 1848, Texas Rangers based in San Antonio repeatedly attacked Caddo and Wichita hunting parties composed of men and boys as they slept and cooked. These hunting parties came from tribes who had signed peace treaties with the federal government in 1847, leading the federal Indian agent, Robert Neighbors, to accuse the Rangers of perpetrating a “massacre.”
In the 1850s, rampant violence by White settlers continued, pushing the Caddos into Oklahoma and Kansas. In 1859, Neighbors was shot by a White vigilante after he had worked to minimize the violence against Native Americans. After the Civil War, White Texans forced the Apaches into Mexico and New Mexico. Even the federal government assisted in containing the mighty Comanches in Oklahoma. During the Red River War of 1874-1875, Civil War hero Gen. Philip Sheridan adopted the brutal practices of the Texas Rangers and endorsed a policy of attacking Kiowa and Comanche villages during the winter, killing as many men as possible and destroying homes and supplies. By the 1880s, Texas had virtually uncontested control over all Native American lands in the state.
To this day, only three reservations exist in a state that dozens of Native American nations once called home. Texas does not recognize these tribes, nor does the state have a formal mechanism for tribal recognition. Nevertheless, the state supervised and managed Native American lands until the 1980s. In 1989, the tribes successfully petitioned to have the federal government take over these supervision and management responsibilities. In short, the tribes trusted the federal government more than the state of Texas.
And through it all, Texas has continued policies that impinge on tribal sovereignty and destroy Native American families. Although in 2002 Texas acknowledged Native Americans’ “unique standing in our state and country as Indigenous peoples,” actions by government officials contradict any true recognition of Indigenous sovereignty. Texas Gov. Greg Abbott and Sen. John Cornyn (R) opposed an effort by the Ysleta del Sur Pueblo and Alabama-Coushatta tribe to run bingo operations independent of state regulations on tribal lands. It took another United States Supreme Court ruling, in 2022, to affirm the Native Americans’ right to run their operations as they wished.
The Texas government is not only continuing to fight Native American autonomy, it is attempting to downplay the state’s history of violence and aggression with the Texas 1836 Project, which brazenly attempts to whitewash this violent history for the next generation of Texans.
And yet, despite this long and reprehensible history of violence, hundreds of thousands of Native Americans still call Texas home.
That’s why the Indian Child Welfare Act remains an important protection for Native Americans and their children in the determination of their community’s future. While Texas Solicitor General Stone conceded that “both federal and state history regarding Indian tribes carries a variety of very shameful and terrible elements,” he nevertheless argued that Texas should have power over Indigenous children instead of their families and tribes. History shows what that power meant for Native Americans in the past. It isn’t surprising that Native American families don’t trust Texas in the present.