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Supreme Court of the Colonizers

A Review of 2022-23 Rulings of the U.S. Supreme Court

  • By: Acee Agoyo
Photo of a group of Indigenous people taken outside of the U.S. Supreme Court at the pro-ICWA rally held on November 9, 2023. Photo credit Acee Agoyo.
Photo of Tsaitami Duchicela, an Indigenous community member, taken outside of the U.S. Supreme Court at the pro-ICWA rally held on November 9, 2023. Photo credit Acee Agoyo.
Photo taken outside of the U.S. Supreme Court of a group of Indigenous people at the pro-ICWA rally held on November 9, 2023. Photo credit Tsaitami Duchicela.

(“United States”) The courts of the colonizers have never been a good place for Indigenous peoples. But a Supreme Court (SCOTUS) dominated by conservative justices is demonstrating just how damaging the system can be to all people in the “United States.” 

Following a show of force and unity among Native people and tribal nations, SCOTUS preserved the Indian Child Welfare Act (ICWA), a federal law designed to stop the colonizer theft of Indigenous children.

Opponents of ICWA, known as the gold standard in child welfare law, attempted to use the case to dismantle tribal sovereignty. But the 7-2 decision in Haaland v. Brackeen averted disaster by confirming that tribes have a right to determine where their children belong, particularly in the face of hundreds of years of removals by state and private actors in the adoption and foster care industries and the government-run and supported boarding schools.

“ICWA protected me and allowed me to return home to my people,” Justin Ahasteen (Diné), the executive director of Navajo Nation Washington Office, said after the decision came out on June 15th at a Native-led celebration at the National Museum of the American Indian on Piscataway lands (“Washington, D.C., U.S.”).

However, the movement to protect ICWA is far from over. Conservative and right-wing organizations have made no secret of their intent to continue fighting ICWA, hoping to take advantage of the majority of anti-Native justices who have invited further litigation that would undermine the rights of tribal nations.

On the morning of  the ICWA decision, June 15, 2023, the high court ruled by a shocking vote of 8-1 that tribes can be sued without their consent, even though you won’t see the word “tribe” anywhere in the federal law at issue in Lac du Flambeau Band of Lake Superior Chippewa Indians v. Coughlin.

The sole dissent reads, “From the founding to the present, this Court has recognized the Tribes’ continued existence as ‘independent sovereigns.'” The “independent sovereigns” precedent is written in the Haaland v. Brackeen decision.

On June 22nd, SCOTUS dealt the people of the Navajo Nation a major setback in their long-running efforts to secure water for the largest reservation in the “United States.” The 5-4 vote in Arizona v. Navajo Nation again highlighted the conservative dominance on the high court, with all of the votes against the tribe coming from conservative justices. 

Approximately 40 percent of the Navajo reservation lacks water. According to data from the U.S. government, the states fighting the Navajo Nation use far more water than residents of the reservation. “The average American uses 88 to 100 gallons a day,” the tribe’s attorney said during oral argument in the case. In contrast, “The Navajo Nation is about seven gallons.” 

In spite of the Navajo Treaty of 1868 that the U.S. government entered into guaranteeing the Navajo nation their lands, its resources, and sovereignty, all of the states surrounding the Navajo Nation will have guaranteed access to water while the reservation will not.

Photo of Fawn Sharp, Vice President of the Quinault Indian Nation (“Taholah, Washington, U.S.”), addresses the pro-ICWA rally crowd and media during a press conference held outside of the U.S. Supreme Court on November 9, 2023 Photo credit Jen Deerinwater.

The United States government owes special legal obligations to tribal nations and their citizens. These obligations, often described as the trust responsibility, originated in the U.S. Constitution and developed over the centuries through promises made in treaties, federal laws, and other agreements. 

For this reason, programs and services benefiting American Indians and Alaska Natives are supposed to be safe from challenges. But as with the ICWA case, conservative interests are determined to undermine, eradicate, and weaken everything deemed a threat to their hold on power.

The Supreme Court’s decision to end affirmative action in higher education represents a perfect example. The conservative majority on the court voted 6-3 to bar race-conscious college admissions policies even though, as one dissenter pointed out, doing so would “nearly erase the Native American incoming class” at the University of North Carolina, a publicly-funded institution.

It’s not just Native students who will be disappearing at campuses across the nation. Harvard College, a private institution, warns that the number of Black students being admitted will drop from 14 percent to 6 percent with the elimination of affirmative action. Hispanic/LatinX student representation is expected to drop from 14 percent to 9 percent, according to the court’s ruling.

The affirmative action decision came in two cases known as Students for Fair Admissions Inc. v. President & Fellows of Harvard College and Students for Fair Admissions, Inc. v. University of North Carolina. The Students for Fair Admissions Inc. group was created by a conservative activist whose mission, according to Reuters, is to “erase racial preferences” in American society. 

In another egregious case, the conservative majority dramatically weakened the Clean Water Act, a federal law that previously offered some sense of environmental relief in marginalized communities that are frequently victimized by toxic, health-destroying pollution.

The ruling in Sackett v. Environmental Protection Agency changes everything on a narrow vote of 5-4.  As a result, half of the 118 million acres of wetlands in the “U.S.”  are no longer protected by the Clean Water Act. Individuals and corporations are now free to pollute waterways.

SCOTUS handed down another blow to many marginalized people in the “U.S.” in the Biden v. Nebraska case. By a vote of 6-3, the justices put an end to the student debt relief program to cancel up to $400 billion in student loans, a program designed to provide respite amid the COVID-19 pandemic that disproportionately impacted Indigenous and Black communities.

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About the Author

Acee Agoyo is a co-founder of Indianz.Com, a leading Native American news, information and entertainment website. He currently serves as Editor-In-Chief, covering Indian law and policy in the nation’s capital.