The United States Supreme Court will hear arguments on November 9 in the case of Brackeen v. Haaland.
The states of Texas, Louisiana and Indiana – and individual plaintiffs – seek to declare the Indian Child Welfare Act, or ICWA, of 1978 unconstitutional.
Before 1978, 75-80% of Indigenous families living on reservations lost at least one child to foster care. According to the state of Montana’s website, “Child Welfare agencies were often ignorant, indifferent of or insensitive to cultural differences in child rearing and parenting practices and, as a result, many unnecessary, and unwarranted, foster and adoptive placements were made.”
Testifying before a Senate committee prior to ICWA’s passage, Choctaw Chief Calvin Isaac remarked, “One of the most serious failings of the present system is that Indian children are removed from the custody of their natural parents by non-tribal governmental authorities who have no basis for intelligently evaluating the cultural and social premises underlying Indian home life and child rearing.”
The chief went on to state: “Many of the individuals who decide the fate of our children are, at best, ignorant of our cultural values and, at worst, have contempt for the Indian way and convinced that removal, usually to a non-Indian household or institution can only benefit an Indian child.”
In the 2016 Haaland v. Brackeen case, a 10-month-old Navajo boy was taken from his mother after she tested positive for drugs. His father is Cherokee. The boy was placed by Texas social services in the home of Chad and Jennifer Brackeen, a former civil engineer and an anesthesiologist.
In 2017, a Texas state court terminated both biological parents’ rights. Under the ICWA statute, the Navajo Nation stepped in to place the child with a Navajo family. The Navajo Nation’s attempts failed, paving the way for the Brackeens to adopt the boy.
After the adoption, they also attempted to adopt the boy’s sister. However, the Navajo Nation was successful this time, placing the girl with her extended Navajo family.
Outraged by this decision, the Brackeens filed suit, asserting that ICWA racially discriminated against them. The Brackeens argued that they had more money than the girl’s extended family, and she would experience a better life with them.
Eventually, the court agreed with them, removing the girl from her Navajo family and placing her with the Brackeens. The Navajo family was granted limited visiting rights. The ruling infuriated everyone, so the Brackeens filed a federal suit, claiming ICWA was unconstitutional.
The case before the Supreme Court will be crucial in defining and/or restricting Indigenous sovereignty over their own people. With the memory of federally funded boarding schools for Indigenous children fresh in peoples’ memories, this case echoes past attitudes and practices of white European Americans.
Former U.S. Cavalry General Richard Platt established boarding schools for Indigenous children in 1879. His first school was located in Carlisle, Pennsylvania.
Thousands of families were convinced their children would be better off at Carlisle learning to assimilate into white culture, instead of remaining with their families. Pratt’s boarding schools operated under the guiding mission of “to save the man, you must kill the Indian.”
While I can understand the position of the Brackeens in this case (social services are overwhelmed, the foster care system is broken), the interests and rights of Indigenous children must be considered from a tribal perspective.
Repealing ICWA will return the country to the days when families with more money and power could influence courts, convincing them that Indigenous children would receive a “better” life in a white household.
Support for ICWA has been widespread and bipartisan, for the most part. The Oregon Capital Chronicle reported this month: “A total of 497 tribal nations, 62 Native organizations, 23 states and Washington D.C., 87 congresspeople and 27 child welfare and adoption organizations have signed on to briefs with the U.S. Supreme Court in support of the act, which has often been referred to as the gold standard in child welfare and protection.”
After five centuries of white European oppression, Indigenous people must still fight for their rights to govern themselves. While land acknowledgements before events and the observance of Indigenous Peoples’ Day are appreciated, the reality remains that Indigenous people are still treated as second-class citizens in the very country that was stolen from them.
My hope is the justices of the Supreme Court will acknowledge tribal sovereignty and keep ICWA as law. Even now, after all these years, Indigenous culture remains in jeopardy of being reduced or eliminated altogether.
While the strategies have changed over time, the philosophy and attitude have not for many people: “Save the Man, Kill the Indian.”
