Dear Justice Alito,

I listened to the oral arguments in Brakeen v Haaland. I heard your question:

“but why — why is it rational [to foster a child in the home of someone from another tribe, as a third-tier option]? Before the arrival of Europeans, the tribes were at war with each other often, and they were separated by an entire continent. And I — I don’t know how many cultural similarities you would identify if you compared a tribe in Florida with a tribe in Alaska.”

Let me help you.

First of all, given your grave responsibility, you should already know your shit. You should know why it’s rational. You’re in a position of power, dressed in a black robe with a group of eight others like a cloister of priests arguing over the interpretation of a holy scripture, and your decision will impact the lives of millions. To the extent you have jurisdiction over us, we are your people, your constituents, just as much as the Brakeens are. It seems the Brakeens lives and struggles you can imagine, but not so much with us. Work harder.

Your knowledge of history should run a little deeper than what the Declaration of Independence says: “the inhabitants of our frontiers, the merciless Indian Savages, whose known rule of warfare, is an undistinguished destruction of all ages, sexes and conditions.” In this description, the Founding Fathers were wrong.

So, to answer your question, let’s unpack your statement.

First, the tribes were not “at war with each other often”. We should start with the word “war”, which was understood much differently in North America than in Europe. The majority of conflicts between Native American tribes were tit-for-tat killings and kidnappings of a few people. This followed a certain etiquette, with revenge carried out by the aggrieved family or clan.

You might be thinking of Europe. In the 1600s, Europe experienced several dozen wars between nation-states, at least thirteen of these resulting in thousands dead. The Franco-Dutch War saw 342,000 killed in action; the Great Turkish War between the Ottoman and Holy Roman Empires saw 384,000 killed in action; and the Nine Year’s War between France and most others saw 680,000 killed in action. In North America, large scale national wars, with large battles and hundreds of dead, were extremely rare. When the Puritans massacred the Pequot women and children at Mystic River, the Mohegan and Narragansett were appalled by the savagery, exclaiming, “Mach it, mach it! [Stop it!] For it slays too many.”

Yes, there were traditional rivalries and conflicts, but there were also vast confederations and alliances. The Comanche and Ute and Shoshone are connected, as are the Creek (Muskogee) and Seminole. The Ojibwe, Potawatomi, and Odawa are the Anishinaabeg. They have a history of partnership with the Ho-Chunk, Miami, Lenape, and Shawnee. The Seneca, Cayuga, Onondaga, Oneida, and Mohawk are the Iroquois (or Haudenosaunee) Confederacy, the Five Nations. Later, when the English drove them out, they took in their relatives, the Tuscarora, and became the Six Nations. The Cheyenne, Arapaho, and Lakota Sioux often lived together. Intermarriages between these allies are widely known. Both historically and now.

Today, not only are mixed inter-tribal families common, but many reservations are also mixed, having been created as concentration camps holding multiple tribes. Today it is this mixture, not the tribe, that is often the federally recognized entity. Take, for example, the Confederated Tribes of the Colville Reservation, a federally recognized “tribe” that includes the Sinixt, Chelan, Colville, Entiat, Nespelem, Okanagan, Methow, Sinkiuse-Columbia, Nez Perce, Palus, San Poil, and Wenatchi tribes. Other tribes (e.g. the Lakota) are spread across multiple reservations, with each of those recognized as separate legal tribes.

Cultural similarities across all of Indian Country really started during the internment era, because we were all thrown together and had a common enemy: the United States. My own family is Cherokee, but one of my great-grandmas, born in Indian Territory just after the Trail of Tears, married a Choctaw man in the early 1880s. As early as 1889, the Ghost Dance movement, a spiritual revival, started among the Northern Paiute and spread to reservations across the West. Today, members of hundreds of tribes participate together in powwows, large cultural gatherings, each year. We meet each other, we marry each other, we have kids together, creating a pan-Indian culture. This has been going on for centuries, but especially in the last hundred years.

But it’s not just marriages and culture and dances that unite us. It’s also common cause. When the Dakota Access Pipeline was re-routed from Bismarck to Standing Rock and approved without tribal consultation or even an EIS, over a hundred tribes went to support the Standing Rock Sioux. This was likely the largest single gathering of Native Americans in history. So thank you in unifying us.

Perhaps our single most unifying factor is dealing with the federal government. This includes you, SCOTUS. For an education in our experience vis-à-vis your court, I recommend “In the Courts of the Conqueror: The 10 Worst Indian Law Cases Ever Decided” by Walter Echo-Hawk. If there’s one document that unifies us, that puts all tribes in the same boat, that confines us to similar experiences in the modern world, it’s the Constitution of the United States. It treats us as “the Indian tribes” and thus confines us to a maze of contradictory SCOTUS decisions over time, most often decided by people like you who have never lived east of the Appalachians. You don’t know us at all.

So back to your question, what are the similarities among tribes across the country? Besides genocide, ethnic cleansing, internment, boarding schools, discrimination, political battles against states, forced sterilization, resource exploitation, poverty, diabetes, suicide, and child removal (which is addressed by ICWA). I suppose resilience, determination, family connections, love, and laughter. And powwows, frybread, the three sisters (corn, beans, and squash), Reservation Dogs, actual rez dogs, navigating the Indian Health Service, etc. All tribes are unique, but we are connected – culturally, experientially, and legally. My point is simply that tribes – and Native families – across the nation have a lot more in common with each other than they do with non-tribal families. We are part of a nationwide community we call Indian Country.

Congress recognized this. They created ICWA to address a problem. That problem was that a third of Native children had been removed from their parents and given to non-Native parents. This fit closely subpart e of the Geneva Convention definition of genocide: “genocide means any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such: … e. Forcibly transferring children of the group to another group.” ICWA worked – and would work better if it was fully enforced. There are still social workers, adoption agencies, lawyers, and judges who deliberately violate it. That’s who you should be going after.

Remember, I’m doing this to help you. Get out; do some site visits. They answer a thousand questions you never thought to ask. Check out Colville, Chinle, Tahlequah, Red Lake, or Cannon Ball. Go to a powwow.

Then answer your own question.

UPDATE: April 24, 2023: A revised version of this was published by Native News Online/Yahoo.