On March 8, Patrice Kunesh, of Standing Rock Lakota descent, joined SUNY Oswego professor Jason Zenor’s American Indian Sovereignty class via Zoom. Kunesh is an American attorney who has served as commissioner for Native Americans and was recently appointed by President Joe Biden to serve on the U.S. Treasury Community Advisory Board (CDFI Fund).

Kunesh is the founder and director of  Pehíŋ Haha Consulting, which is a social enterprise that plays an active role in developing Native communities. Two main focuses the company exerts are social capital and strengthening institutional capacity. 

Kunesh has a Juris Doctor (J.D.) from the University of Colorado School of Law and a Master’s of Public Administration (MPA) from Harvard University John F. Kennedy School of Government. In addition to her many accomplishments, Kunesh also served as in-house counsel to the Mashantucket Pequot Tribe and on the faculty at the University of South Dakota School of Law.

Beginning her discussion, Kunesh spoke about the Indian Child Welfare Act (ICWA). The act was instituted in 1978 as a response to compelling evidence of the high number of Native children that were being removed from their families by public and private agencies and placed in non-Native families. The federal law is intended to help keep Indigenous children with Indigenous families. ICWA is what drew Kunesh into the field. 

She spoke about how trying to keep children and families intact was hard, but necessary in order to keep Native American culture and tradition alive. 

“It’s hard coming from a Native American background to put all the conflicts together, framing it in the economic terms to make people uncomfortable,” Kunesh said. “Nothing is easy and contained.”

In the past several years, anti-tribal interests have launched a series of legal challenges against ICWA. The common reason for this deals with a larger goal of undermining tribal sovereignty. The most preeminent case challenging ICWA is Haaland v. Brackeen. The Brackeen case of 2019 established a much stronger sense of decline in Native child welfare. 

The case presented several couples who wished to adopt or foster Native children and a woman who wished for her Native biological child to be adopted by non-Natives and the support of Texas, Louisiana and Indiana. The district court struck down portions of ICWA. The court’s decision affirmed the constitutionality of ICWA, recognizing the unique political status of tribal nations and upholding federal law. 

There are three sovereigns, which include state, federal and tribal. The independent sectors used to hold equal power, until the federal government became an overarching authority and state power is not far behind. Haaland v. Brackeen was a facial challenge to the law, much like current Supreme Court cases challenging ICWA. 

The fact that the sovereigns are constitutionally independent, raises questions about if Congress has the right to legislate over tribal affairs, and whether the state authority begins in cases of child welfare, or environmental, housing and educational issues. The main question is where does it stop? “There’s a very different perspective – it’s the people who have lived in those communities who can see,” Kunesh said. 

Kunesh stressed the theoretical chain of events. If the court does away with ICWA, it gives them the authority to begin chipping away at other things. They could change other federal laws, pertaining to health, constitutional rights, etc. 

Kunesh closed her discussion, “We thought we were on solid ground with constitutional rights, but it turns out we are in the center of an earthquake.” 

Photo via Economic Policy Institute