The recent adaptation of The Little Mermaid is a good example of how representation in artistic and cultural expression helps children construct a sense of identity. From Goddess Yemaya to La Sirena and Nguva and Sirene of the Magindara, mermaid folktales are present across indigenous cultures around the world and often warn of sea sirens luring unsuspecting people to do dangerous things.
For Indigenous children in the United States, access to tribal folktales, like Ne Hwas, the Passamaquoddy Mermaid or the Ahwahnechee Fish-women, may hinge on a Supreme Court decision expected this summer.
The case in question, Brackeen v. Haaland, concerns the Indian Child Welfare Act (ICWA), a law that protects Indigenous children’s right to family unity, cultural connection, and political identity. It is the latest case in a systematic campaign waged in part by corporate attorneys to undermine Indigenous people’s right to self-determination.
The text of ICWA, which became law in 1978, affirms that there is “no resource that is more vital to the continued existence and integrity of Indian tribes than their children.” The law recognizes Indigenous children’s tribal citizenship and the sovereignty of tribal nations to make custodial determinations that honor and protect their best interests. It creates a process for state courts to transfer cases involving Indigenous children to ICWA courts to consider placements within the child’s own family, or homes approved by their tribe or another federally recognized tribe before considering non-Native placements.
The non-Native families at the heart of Brackeen v. Haaland and their lawyers — many of whom have built their careers lobbying and litigating to deny tribal rights over land and water resources — argued before the Supreme Court last November that ICWA’s protections constitute “race-based” discrimination against non-Native adoptive parents. Their argument hinges on the conflation of race and political classification to lure the court into undermining Indigenous political identities and tribal sovereignty in the name of “equal protection.”
Another siren call is the conservative anthem of “states’ rights.” The Texas Solicitor General Judd E. Stone joined the petitioners in further arguing that Congress exceeded its authority by regulating family law, an area traditionally left to states. Justices Ketanji Brown Jackson, Elena Kagan and Neil Gorsuch looked to history and case law in challenging the reframing of ICWA as commandeering state’s rights rather than upholding tribal sovereignty. “We have a long history of cases where we’ve understood legislation relating to the tribes as political in nature and not as racial. I think you have one case,” Justice Kagan noted. They pressed Stone to name cases that supported his anti-commandeering argument, or one state court that had held ICWA to be unconstitutional. He could name none.
Over 50 child welfare agencies, including child rights and health organizations, defended ICWA’s protections as the gold standard by filing briefs agreeing that Indigenous children placed with tribal families have better outcomes. 25 states including the District of Columbia also filed a supportive brief highlighting that continuing disparities in the rate of Indigenous children removed from their homes underscores the need for state-level laws that mirror ICWA and improved state-tribal collaboration to strengthen, not dismantle, the law.
The most powerful brief was filed by Indigenous former foster children who pleaded with the Court to keep ICWA and described the valuable relationship between cultural connection and identity formation. “It’s like you don’t know yourself and your spirit,” wrote one Chippewa Cree Native about being raised with non-Native parents and without specific connections to tribal culture. It “takes a huge impact on you not knowing who you are,” she added.
All children have a fundamental right to family integrity, cultural heritage and political identity, which promotes their healthy development and collective self-determination. If the Supreme Court strikes down ICWA, Indigenous children risk losing a vital framework that protects their rights and helps preserve their peoples’ existence. Fifty years from today, will Passamaquoddy children know the folklore of Ne Hwas, the Mermaid? Will they know the stories of their people? Will they even exist?