Attacks on the Indian Child Welfare Act
On Wednesday, November 9th, 2022, the Supreme Court began hearing oral arguments in Haaland v. Brackeen.This case is centered on the Indian Child Welfare Act of 1978, which was adopted to prevent family separation, specifically, the removal of Native American children from tribal lands. In this case, “Baby O” who was left in a hospital after birth under Nevada’s Safe Haven Laws, was adopted by the white foster parents, Heather and Nick Libretti. Investigation of Baby O’s family identified her biological father and other blood relatives, finding that she is eligible for citizenship in the Ysleta del Sur Pueblo, a federally recognized Native American tribe.  Under the ICWA, preferred placement of Native children rests first with parents, then grandparents and other non-nuclear family blood relatives. The parents were notified that they would not be able to adopt Baby O, and they decided to contact all potential blood relatives with whom Baby O might be placed, to try to convince them to give up their custody rights. The Libretti’s approached Baby O’s grandmother, requesting she renounce tribal citizenship to remove Baby O from ICWA’s coverage. The Libretti’s hired attorneys and worked with biased social workers who did not reach out to many of Baby O’s blood relatives until a court ordered them to do so, and when they did, they tried to convince them from accepting custody of the child.
The Libretti’s eventually won full custody of Baby O, though this was not enough. The Libretti’s charge that their difficulties in adopting Baby O were a result of a racially discriminatory law—the ICWA—which devalues white parents in preference for Native parents. The Libretti’s claim that they were racially discriminated against and therefore, under the equal protection clause, the ICWA is unconstitutional. Their case is only one of four that has been brought under the single name of Haaland v. Brackeen. 
The United States and Canada have terrifying histories of “family separation.” What has been witnessed across the Trump and Biden administration’s family separation of migrants, largely coming from Central and Latin America (and almost exclusively constituting black and brown families amongst their ranks) is only the most visible and contemporary form of dehumanization of other ethnic groups via the exploitation and abuse of that group’s minors. In the United States, the effort to forcibly assimilate through cultural or human genocide of Native populations has been exposed time and again. Whether it be via the continual encroachment upon territorial lands despite treaties with nations, the Indian Removal Act of 1830, or the Massacre at Wounded Knee in 1973, the United States government has repeatedly demonstrated its commitment to elimination of Native culture, territory, and families.
In the late 19th century, the United States opened boarding schools for Native children, removing them from tribal lands, punishing use of Native languages, enforcing English or French, educating students of their cultural inadequacies, and often lying to children, claiming that their parents did not want them. When the minors arrived at these boarding schools, they were physically and symbolically stripped of identity via hair cutting and aggressive washing and scrubbing: their Native life cleaned off their bodies, they were, from then on out, to act like Caucasians in a white society. Many Native children who attended these boarding schools were physically and sexually abused, were neglected or outright murdered, and their parents were refused visitation or even notice of their child’s passing. Even in the past few years, newly unearthed mass graves at former boarding schools in Canada demonstrate the continued trauma these boarding schools have caused generations of Native peoples, along with showing the public just how much we all do not yet know but was done in the name of “saving” Native peoples.  As the founder of a boarding school said in 1892: “all the Indian there is in the race should be dead. Kill the Indian in him, and save the man.”  When children were not taken to boarding schools, or after a period at a boarding school, they were adopted by white families. Here we find the harrowing stories of those Native children who were adopted to be slaves and servants to white families, and who continued to experience cultural genocide and second-class status inside of their adoptive homes. 
By the time the ICWA was adopted in 1978, 25-35% of Native children had been forcibly removed from tribal lands, some communities having no children left.   Many victims of boarding schools still live today, and have reported the physical, emotional, and sexual abuse they experienced in boarding schools and in their white adopted families’ homes alike. 
It is through the lens of these historical truths that the ICWA was adopted by Congress in 1978; it was a modest attempt at placing guards against the cultural genocide and abuse of Native children, and it rests on a legal framework identifying the independence of tribal governments in relation to the United States government.
Attacks on Affirmative Action
Relatedly, Students for Fair Admissions, Inc. v. University of North Carolina and Students for Fair Admissions Inc. v. President & Fellows of Harvard are currently challenging the constitutional foundations of affirmative action in the Supreme Court.  Though in 2003, Grutter v. Bollinger declared that race could be used as a factor in consideration of admissions for colleges and universities to tamper unconscious bias and improve student diversity. In these two cases, conservative attorney Edward Blum used his own Students for Fair Admissions (SFFA) group to argue that there is anti-white racial discrimination in university admissions, but these cases were unsuccessful. The current cases brought to the Supreme Court argue that now, rather than anti-white racial discrimination in university admissions processes, race-conscious admissions in previous decades discriminated against Jewish students, and contemporarily discriminate against Asian Americans. 
Social and political scholars have long documented the “model minority” or “buffer” role into which Asians and Asian Americans have been thrust, essentially using colorism and the promise of “better than” treatment to pit Asian communities against black communities in the United States.  Perhaps the clearest model minority myth perpetuated in US society is that Asians and Asian Americans are studious and academically—especially mathematically—endowed. Often portrayed as the minority who knows how to “pull themselves up by their bootstraps,” Kim details a tortured history in the United States of Caucasians inflating and then pointing to Asian American successes to justify lack of social provision for black and brown communities, essentially arguing “if they can do it, why can’t you?” 
Thus, the new claims that race-conscious admissions practices discriminate against Asians and Asian Americans is to claim that the minority that, stereotypically in the minds of Americans, deserve their academic positions, are being discriminated against in favor of undeserving minorities. Unfortunately, these claims do not hold, as various Asian American think tanks and representative institutions find that Asian Americans have experienced great benefits from race-conscious admissions practices, striking down such logic.  Given that claims of anti-white discrimination did not work for Blum, Asian Americans are being portrayed through a racist model minority stereotype to present affirmative action as discriminatory, even towards minorities themselves.
Uplifting White Supremacy and Dismantling Minority Protections
Both sets of cases brought to the Supreme Court during this session share a central theme: the Supreme Court is going to decide whether to legitimate the claim of “reverse racism” or anti-white discrimination. The parents of Baby O have claimed that their adoption process was made difficult due to discrimination against their being white, and Blum is using Asian Americans as a second-best and near-white minority to claim that university admissions processes unfairly discount the value of Asian (read “also white”) students in favor of undeserving others.
This is only the most recent and perhaps damning presentation of white fragility, denial of systemic inequality, and white supremacy that conservatives are attempting to use to unravel the hard-fought civil rights protections of minority groups. We should subsequently address these issues that lack substantial evidence as equally as irrational and potentially inducing of violence as unsubstantiated claims of 2020 election fraud.
Reverse racism does not exist. What makes white supremacy, in fact, supremacy, is the way in which policing, courts, legal structure, de facto housing preferences and housing market values, teacher interaction with students, bureaucratic interaction with citizens and every other aspect of society give preference to lighter skin or to those with European heritage. White supremacy is not simply the individual being able to say or think terrible things; it is also the existence of a socio-legal political structure that will support that individual, even to the oppression of the human rights of many others. Ethnic and racial minorities in the United States do not receive this systemic support. Ethnic and racial minorities are targeted by a systemically racist policing system , excluded by a weakening education system, particularly because of the coronavirus pandemic , and disenfranchised by an intensifying assault on voting rights. 
What these two cases show us then, is not that there is any credence to the claims of reverse racism. We should not assume that evidence-based reasoning is the goal of the extreme right in the United States; their election denialism and their refusal to address medical necessities and human rights show as much. Instead, what these cases show the public is the continued ratcheting in intensity and reach of white supremacist narratives. It is, after all, the Great Replacement Theory that claims that black and brown minorities are in collusion with international Jewish conspirators to commit white genocide in the United States. What better way to prevent this “white genocide” than to “protect” the rights of white parents and white students through the revocation of minority rights? The sitting Supreme Court that has agreed to hear both series of cases has proven that it also is not concerned with evidence-based reasoning, demonstrating how civil rights for Native Americans are deeply rooted in the protections afforded by the ICWA, and it is not concerned with providing opportunities to students of color: the Supreme Court and the conservative groups supporting these appeals are only concerned with the maintenance of white supremacy via the dismantling of a network of minority civil rights.
This content originally appeared on CounterPunch.org and was authored by Sakura Shinjo.