Preparing for the end of ICWA
On November 9th, the Supreme Court is scheduled to hear Haaland v. Brackeen. This case challenges the Constitutionality of the Indian Child Welfare Act ( ICWA). ICWA was created in 1978 to address the epidemic of Native children being taken and adopted out to non-Native families. It provides federal protections to keep Native children in Native communities. Congress’s aim with ICWA was to “protect the best interests of Indian children and to promote the stability and security of Indian tribes and families” (25 U.S.C. § 1902).
In Haaland v. Brackeen, a white couple (the Brakeens) fostered and tried to adopt a Native boy, but a Native family was found who were able to take him in and he was placed with them. The Brackeens filed a federal lawsuit. Since then, the Brackeens have been formally allowed to adopt the boy, and fought to obtain custody of his sister, whose Navajo family wanted to take her in. The Brackeen case argues that the special protections provided by ICWA violate their Constitutional right to equal protection under the law.
The arguments from the opponents of ICWA claim that the law discriminates against non-Natives on the basis of their race. (See: Ensuring Equal Protection–Regardless of Race - Goldwater Institute) This argument is not good. This is not an uncharitable interpretation. There argument relies on the false claim that Native is a racial designation, when it is actually a political and cultural designation. Any claims that ICWA discriminates on the basis of race are false, because Native is not a racial designation. It’s very frustrating that this argument that relies on a false premise is being given genuine consideration. A disturbing criticism of ICWA that Goldwater Institute claims is that ICWA “makes it prohibitively difficult to adopt Native American kids.” That is not a criticism, that’s the entire purpose of the law. It should be exceedingly difficult to take our children from their people and their culture
The potential for ICWA to be overturned is incredibly distressing. There is a long, dark, and ongoing history of Native families being devastated by the taking of their children. Essentially every Native today has a connection to the Boarding School system. ICWA was only passed in 1978 and the effects of the mass taking of our children are still very much present. (See: My family was torn apart before the Indian Child Welfare Act passed. Will SCOTUS upend it?) Having our children taken is a real, tangible fear that Native people live with. In “How Minnesota’s Foster Care System Reminds Native Moms of a Racist Legacy – Mother Jones” one woman names this fear: “I call it child protection PTSD, that they’re just gonna one day knock on my door.” As it is, Native children are being taken at wildly disproportionate rates. “As of 2019, Native children in Minnesota are 16.8 times more likely to end up in out-of-home care than their white peers.” . (Honoring the Indigenous Children Stolen by the Colonial Social-Welfare System)
Aside from the obvious threat of our children being taken, the overturning of ICWA could be considered a step toward the eroding of tribal sovereignty. In their ruling in Oklahoma v. Castro-Huerta, SCOTUS did a lot to allow individual states to exercise authority on tribal land, undermining tribal sovereignty. Overturning ICWA further limits tribal rights to autonomy. Arguments that ICWA discriminates on the basis of race blatantly erase tribal sovereignty. Categorizing Native status as a matter of race is disrespectful to the political and cultural entities that tribal nations constitute. Essentially is reduces being Native to no more a racial designation, like that of being Canadian.
Should ICWA be overturned, Native people will lose the federal protections put in place to protect our children from being taken and placed in non-Native homes. ICWA was put into place 45 years ago to stop the rampant theft of our children. Today, Native children are still over-represented in out-of-home fostering. While the overturning of ICWA will remove federal protections, it is still possible to create legislation to institute ICWA protections on the state level. Urge your state representative to codify protections for Native families. Let them know that you have learned about the history of Native children being taken from their homes and you won’t stand for it today. Remind them that Native status is a political designation, not a race, and that legal protections for Native people do not discriminate on the basis of race, they recognize the sovereignty of Native peoples.
Please sign and share our petition to protect the rights of Native families.