North Dakota Law

Updates from the University of North Dakota School of Law.

Professor Lewerenz quoted as an expert: Betting, adoption lawsuits pose greatest threat to tribes in decades, experts say

A lawsuit in Washington state and another case before the U.S. Supreme Court are part of a coordinated campaign that experts say is pushing once-fringe legal theories to the nation’s highest court and represents the most serious challenge to tribal sovereignty in over 50 years.

OregonLive | Oregonian

By Karina BrownUnderscore News

Editor’s note: This story was produced through a collaboration between The Oregonian/OregonLive and Underscore News. The Data-Driven Reporting Project supported Underscore’s work on this story.

A lawsuit in Washington state and another case before the U.S. Supreme Court are part of a coordinated campaign that experts say is pushing once-fringe legal theories to the nation’s highest court and represents the most serious challenge to tribal sovereignty in over 50 years.

Maverick Gaming, which operates 19 card rooms in Washington and casinos in Nevada and Colorado, is challenging a 2020 law that allows sports betting only on tribal lands. The lawsuit, filed in federal court in Washington state, claims the law created a “discriminatory tribal gaming monopoly.”

But it goes further, arguing gaming compacts between Washington state and tribes are based on race and therefore discriminate unconstitutionally against people who run non-tribal casinos. The argument takes aim at the inherent right of tribal nations to govern themselves and at centuries of U.S. law that recognizes tribal governments’ political parity alongside their state and federal counterparts.

Advocates and legal experts say the Maverick case and others like it threaten a return to the Termination Era policies of the 1950s, when the U.S. government sought to end the political status of Indigenous tribes forever.
The most prominent of the cases, argued before the U.S. Supreme Court in November, focuses on the right of Native American families to have preference over non-Native families in the adoption placements of Native kids.
As in the Maverick case, the plaintiffs in Brackeen v. Haaland claim the preference is based on race, rather than the political sovereignty of tribal nations. A ruling in their favor could fundamentally rewrite the way the U.S. government regards tribal nations, casting policies created by treaty or agreements between sovereign nations in doubt.

“The justification for termination was that the federal trust responsibility between the federal government and tribes was holding Native Americans back,” Nagle said. “It’s just kind of a rinse and repeat argument, that equality for Native people is treating Native people the same as everybody else. That’s a very coded way to talk about erasing the special trust relationship that the U.S. federal government has with tribes.”

Members of suddenly landless tribes scattered, with many moving from their former reservations to cities under federal relocation policies aimed at forcing assimilation. Termination caused dire social disarray and further impoverishment. For the leaders of terminated tribes, it also squashed the ability to prevent such harm.

All three branches of the U.S. government firmly repudiated termination policy in the 1960s and ‘70s, pushing proponents to the political sidelines. Two presidents from opposing parties refused to enforce termination, the courts reaffirmed treaty rights, and in 1975 Congress replaced it with the current federal tribal policy known as self-determination.

Indigenous leaders and activists pushed for more protections of their rights, and Congress soon passed more laws, including the Indian Child Welfare Act, the Indian Healthcare Improvement Act, and the American Indian Religious Freedom Act.

And after decades of work, many terminated tribes eventually won back federal recognition of their sovereignty — but not their land, in most cases.

So modern-day efforts to undermine tribal sovereignty ring familiar to people like Lewerenz, the Native American Rights Fund attorney.

“The people who have tried to get whatever it is that Indians have — whether that’s land or fish or children — have always done so by trying to claim the mantle of equality,” Lewerenz said.


Maverick Gaming and Chad and Jennifer Brackeen are also backed by the same legal team.

The Brackeens are challenging ICWA, a 1978 law that requires caseworkers to give preference to Indigenous families in foster and adoption placements of children who are members of a federally recognized tribe.

The law was aimed at correcting centuries of injustice.

Between 1819 and 1969, the federal government took many thousands of Indigenous kids from their homes and forced them to attend brutal schools that employed “systematic militarized and identity-alteration methodologies,” according to a report released by the U.S. Department of the Interior in May.

After the federal government ended mandatory attendance at American Indian boarding schools, officials continued to remove overwhelming numbers of Indigenous kids from their families and place them in foster or adoptive care outside their communities.

When Congress passed ICWA in 1978, studies showed that state child welfare agencies and private adoption companies were taking between 25% and 35% of Native kids from their families. And 85% of those children were placed with non-Indigenous families.

Native families are still four times as likely as white families to have kids removed from their homes, according to the National Indian Child Welfare Association.

But some private adoption companies and evangelical groups argue that the law gives preference to Indigenous people as a racial group and therefore violates the equal protection clause of the Fourteenth Amendment to the Constitution.

The Brackeens, a white couple, sought to adopt a 4-year-old girl in foster care, the baby sister of a boy they had already adopted. Devout evangelical Christians, the Brackeens told The New York Times they saw adoption of foster kids as a way to “rectify their blessings.” The Navajo Nation wanted to place the girl, who is Cherokee and Navajo, with a Navajo family, as laid out by the Indian Child Welfare Act. But when that placement fell through, both Indigenous nations supported the Brackeens’ adoption.

Despite their happy ending, the Brackeens are the lead plaintiffs in a federal lawsuit claiming the act is based on a racial preference that unfairly prioritizes Indigenous families as adoptive parents.

For a child welfare dispute that started out in a small Texas family court, the Brackeen case draws unusual firepower.

Texas Attorney General Ken Paxton intervened in the case on the couple’s behalf.

And Matthew McGill, an attorney with the high-powered firm Gibson, Dunn & Crutcher who argued the Citizens United case before the Supreme Court in 2010, took the Brackeens’ case pro bono. He argued on their behalf before the U.S. Supreme Court in November.

His law firm is also known for representing Chevron in the longstanding lawsuit filed by Indigenous communities in Ecuador, as well as Energy Transfer Partners, architect of the Dakota Access Pipeline. The latter proposal has drawn fierce opposition from the Standing Rock Sioux Tribe, along with the Yankton Sioux, the Oglala Sioux and the Cheyenne River Sioux Tribes, who say the pipeline’s route under nearby Lake Oahe threatens their main source of drinking water and could pollute the waters they hold sacred.

McGill also successfully argued the Supreme Court case that led to the court’s 2018 ruling allowing states to legalize sports betting. The firm counts among its clients several major international casino operators.

Two years after McGill’s win in the sports betting case, Washington Gov. Jay Inslee signed a bill allowing sports betting only under Washington’s tribal-state gaming compacts, setting the stage for the Maverick lawsuit.

In January 2022, McGill filed the Maverick lawsuit, as well. He did not respond to requests for an interview.

On its surface, the case is connected to his litigation around betting and gaming. But the legal arguments parallel those of the Brackeen adoption case.

Lewerenz said both cases could result in rulings that cast tribes as “merely private associations of people with a common racial ancestry.”

“If that happens,” Lewerenz said, “then it’s hard to understand why they would have any governing power, any political power.”

Nagle said that power flows from tribes’ unique position as sovereign nations that predate the United States.

“What racial group in the United States has its own land?” she asked. “Its own water rights and environmental regulations? Its own police force, its own elections, its own government?”

Tribes fear they stand to lose almost everything: their right to self-governance, the resources to preserve their culture and traditions, and the main economic engine that provides for basic tribal services.

But for those with interests in the private casino industry, such a change could be a boon. The same goes for corporations looking to develop oil and gas leases without interference from Indigenous nations, whose right to co-manage the lands they stewarded for millennia is increasingly recognized by the federal government.