by Ernest L. Stevens, Jr.
As all Americans prepare to visit with family and friends to close out 2023, it’s worth taking time to reflect on our accomplishments of this past year and highlight the work that remains ahead.
Probably the most significant event in 2023 was the highly anticipated Supreme Court decision in Brackeen v. Haaland, which upheld the constitutionality of the Indian Child Welfare Act. On June 15, 2023, the Court, in a resounding 7-2 decision, rejected several constitutional challenges to ICWA. The Court rejected arguments that questioned Congress’ power to even enact ICWA, citing longstanding precedent of Congress’ “well established and broad” constitutional authority to legislate with respect to Indian affairs. The Court also rejected, out of hand, challenges that ICWA violated the anti-commandeering doctrine.
The decision, however, did not address the claim that ICWA violates the Constitution’s Equal Protection Clause. Instead, the Court rejected the petitioner’s argument on grounds that they did not have standing to raise the claim. As a result, the equal protection question remains open to a future legal challenge.
Maverick Gaming – a commercial gaming corporation based in Washington State – is pursuing a similar equal protection violation claim against the Indian Gaming Regulatory Act. These misguided lawsuits claim that both ICWA and IGRA are based on race and ancestry in violation of the U.S. Constitution’s Equal Protection Clause.
These claims ignore the fact that the U.S. Constitution acknowledges Indian tribes as separate distinct governments. The Constitution empowers Congress to regulate commerce “with Foreign Nations, and among the Several States, and with the Indian Tribes.” Federal laws that impact Indian tribes are based on the political/governmental status of tribes and not race or ancestry.
However, if either ICWA or IGRA fall to a race-based challenge, attacks against federal laws to provide for Indian health care, education, public safety, and many more will immediately follow.
With so much at stake, the Indian Gaming Association joined with the National Congress of American Indians to re-establish the IGA-NCAI Task Force, to unite our voices and our resources to plan a path ahead to defeat these attacks and defend tribal sovereignty and the status of Indian tribes as governments. The Task Force held several meetings in 2023 to discuss strategy to counter these and other challenges facing Indian Country nationwide.
These important issues will carry over to the coming year and the Second Session of the 118th Congress as we also enter a crucial Presidential election year. The threats facing tribal sovereignty and federal laws designed to uphold the federal government’s solemn treaty and trust obligations to Indian Country will be decided in federal courts and may require a response from Congress. Because of this, we must educate all candidates about these important issues and hold Congress accountable through the power of our vote.
The first Americans were the last to be granted voting rights. For the first 150 years of our Nation’s history, American Indians had no vote, and no say in federal policies that stole our lands, authorized the forced removal of Indian children from their families, and outlawed the exercise of Native culture, language and religion.
On June 2, 2024, Indian Country will celebrate the 100th anniversary of the “Indian Citizenship Act.” President Calvin Coolidge signed the Indian Citizenship Act into law, declaring all Native Americans born within the territorial limits of the United States to be citizens eligible to vote. The Act was, in part, a response to recognize the thousands of Native Americans who served in the U.S. military during the First World War. To this day, American Indians continue to serve our military on the highest per capita basis. Native warriors have sacrificed their lives in World War I and every other conflict since to protect our country and our democracy.
With so much at stake, we owe it to these warriors and our ancestors who sacrificed so much to protect tribal sovereignty and our way of life by getting out the Native vote. In 2024, the Indian Gaming Association will work to energize the Native vote through our “My Vote WILL Count” campaign, recruiting young warriors to organize their communities.
As we gather with family and friends this holiday season, we give thanks for the many blessings of this past year. We look forward to spending this precious time with our families and our communities to recharge and prepare ourselves for the significant work ahead.
Ernest L. Stevens, Jr. is Chairman of the Indian Gaming Association. He can be reached by calling (202) 546-7711 or visit www.indiangaming.org.