Last week, the Supreme Court started to review Haaland v. Brackeen, a series of cases that seek to overturn the Indian Child Welfare Act (ICWA). The law, enacted in 1978, grants tribal nations the right to participate in welfare cases that involve Native or Indigenous children. Under the law, if a state court removes a child from a tribal nation from their home, preference to a Native family is considered first in foster and adoption cases, and tribal leaders are given a voice in the process. If the Supreme Court decides to rule in favor of Haaland v. Brackeen, they’ll reverse a significant step forward in repairing the displacement of Native families caused by colonization.
Throughout history, federal and state governments have intentionally targeted Native children to strip Native communities of their culture and identity. This practice is referred to as cultural genocide. One way was the implementation of “Indian boarding schools,” where children as young as four years old were taken from their homes by the government and sent to militarized camps. There, children were not just stripped of their language, culture, and families but often suffered severe abuse, neglect, and death. Over 500 deaths have been confirmed across schools in the U.S. (NPR) and over 4,000 in Canada (NYTimes). Researchers expect that there are tens of thousands more. Just recently, Harvard’s Peabody Museum announced they have a collection of over 700 hair clippings from Indigenous youth imprisoned at these boarding schools (Native News Online).
• Listen to the story of seven-year-old Waleli and how the ICWA impacted his upbringing.
• Follow the case as it unfolds online using the hashtag #ProtectICWA.
• Subscribe to Native News Online, a platform for independent Indigenous journalism, which has done comprehensive reporting on Indian boarding schools and the decision on ICWA.
These schools were closed in the mid-1900s. But in 1958, the government created the Indian Adoption Project. This was explicitly designed to remove Native children from their communities and place them into white homes so they could assimilate into white supremacist culture. The hope was that, over time, these adoptions would weaken the sovereign tribal nations by exporting their future generations. The Indian Child Welfare Act was introduced to end this practice and ensure Native youth wouldn’t lose their culture (The Adoption History Project).
It’s heartbreaking that, nearly 50 years later, people are organizing to start this practice again. This case centers on the stories of wealthy, white parents desperate to adopt Native kids. Opponents of IWCA argue that, by preventing other (read: white) parents from raising these children, the law applies special status to children from a separate race, which is not a color-blind application of the Constitution. Aside from how morally bankrupt that argument sounds, it’s also not the point. The ICWA only applies to children that are members of a federally-recognized tribe. Because some tribes offer citizenship to people that are not considered Native (i.e., descendants of Black people who were enslaved by members of the tribe), technically, all children covered aren’t necessarily Native. More importantly, tribal nations don’t just represent a group of people that identify with a particular race but a political entity that should be entitled to the sovereignty of its people. Aside from cultural integrity, reparations, and racial equity, removing the ICWA takes away political power from Native communities across the country.
But the opposition knows this and is hoping to dismantle that, too. This hearing is part of an intentional attack on Native communities funded by right-wing lawyers representing companies and states tied to the oil and gas industries (TruthOut). And it’s working. Earlier this year, the Supreme Court ruled in favor of Oklahoma v. Castro-Huerta, which granted state governments the authority to prosecute cases on tribal land. This decision completely undermines the sovereignty of tribes over their land and governance. It also forces tribal nations to adhere to the punitive methods of our criminal legal system instead of addressing crimes within the community in a more culturally responsive way (NBC News). Just two years prior, the Supreme Court had voted in favor of tribal sovereignty on the same case. But in 2022, the court expressed that “tribal lands are part of the states they are in, and not entirely separate sovereign powers” (NBC News).
Consider the implications if this persists: eliminating tribal sovereignty would give the federal and state governments full access to Native lands, commerce, and trade. It would leave tribal nations powerless to protect themselves. And it would erase this nation’s accountability for acknowledging and repairing its relationship with the Indigenous people who have already experienced forced displacement and erasure.
Earlier this year, 486 Tribal Nations, 59 Native organizations, 31 child welfare organizations, 26 states (including D.C.), and 77 members of Congress gathered to express their support for the ICWA. At a press conference last week after the hearing began, Cherokee Nation Principal Chief Chuck Hoskin Jr. emphasized the importance of protecting ICWA. “Taking Native children from their families and tribal lands has done immeasurable damage to Native people in this country for centuries. We were here today, collectively, as Native peoples to make our case in court that the Indian Child Welfare Act is constitutional” (Native News Online). We’re unlikely to hear a decision on this case until mid-2023. But until then, we must advocate for the sovereignty of tribal nations and the safety of being raised in culturally responsive communities.
*Note: Indian is an outdated and incorrect term for referencing Native people. However, the word is used here only to reference terminology once deemed appropriate by the federal government in the past.