The Government Is Attacking Native Families Through Their Children
S E E D E D C O N T E N T
ICWA was created to protect Native American families. Now it’s under attack.
Michelle Bender grew up in the same town as her Native American family, but never met them as a child. When her adoptive mother would take her to the local store in Seminole, Oklahoma, an older man, who often sat outside, would tell her she looked familiar.
As a baby, Michelle was adopted by a non-Native family who created what she describes as a safe and happy home. Yet, Michelle always felt like a part of her was missing. “I felt like I was a child with nowhere to belong,” she says. “I was a person who was wandering through this world without an identity.”
When Michelle finally connected with her family as an adult, she met the man who she had seen outside the store all those years ago; he was her great uncle. He told her that years ago, when he learned that his baby niece was up for adoption, he contacted Tulsa County DHS and told them he wanted to raise the child. The county would not even give him an application.
Today, Michelle works for her tribe, Seminole Nation, and helps place Native children who are up for adoption with family members or in other Native homes in accordance with federal statute. “I had a family member that would have raised me. I would have known my culture, I would have known my heritage. And I would have known my family. I would have had a sense of belonging. But the workers here in Oklahoma didn’t adhere to ICWA,” says Michelle.
I was a person who was wandering through this world without an identity. CLICK TO TWEETMichelle’s adoption out of her tribe and away from her family happened in violation of federal law. When the Indian Childhood Welfare Act (ICWA) was passed in 1978, Congress admitted that 25-35% of Native children had been adopted out of their homes, families and tribes by White and non-Native families. Indian Country lost an entire third of one generation of children. According to the law, when a Native child’s home is deemed unfit, family members, other tribal members, and then other Native homes are to be prioritized for placement. ICWA has been praised by national child advocacy organizations as the gold standard for child welfare.
Yet today, ICWA, the only law protecting Native families, is under threat by a conservative-backed legal campaign to have it struck down by the Supreme Court. Four cases challenging the constitutionality of the Indian Child Welfare Act are currently in U.S. appellate court, including one case brought by the state of Texas .
As Trump’s inhumane policy of separating immigrant families made headlines this month, media outlets and social media posts have drawn parallels to the U.S. government’s long history of separating families of color . While Native American families are still recovering from the U.S. policies of both Indian Boarding School and forced adoption, this tragic chapter of U.S. history is far from over.
Even with ICWA in place, more than half of U.S. states are out of compliance. In South Dakota, Native Americans are less than 15% of the state’s population , but Native kids represent 50% of all children in foster care , with almost 90% of them being raised in non-Native homes. In Minnesota, Natives Americans are only 1.4% of the population, but Native kids represent 23.9% of the kids in the state foster care system .
From reporting to placement, racist and implicit bias put Native families at greater risk of losing their children . Compared to their White counterparts, Native families are twice as likely to be investigated when abuse is reported, twice as likely to have allegations of abuse substantiated, and four times more likely to have their children taken away. While some states have worked to remedy this inequity, this statistical disparity is actually growing, and the gap has nearly doubled since 2008.
While Native advocates say that the federal government needs to act to strengthen ICWA, a powerful conservative think tank is fighting to have the entire law declared unconstitutional.
Several national organizations are fighting to overturn ICWA, but the most well known and well-resourced is the Goldwater Institute . Goldwater is funded by Trump’s biggest campaign donor , the Mercer family, and other powerful political influencers including the Koch Brothers and the Devos Family. Over the past five years, Goldwater has relentlessly represented foster parents who want to illegally adopt Native children in violation of federal law with the hope that someday one of these White families will win their case in the United States Supreme Court. According to Goldwater’s website , ICWA violates the equal protection clause of the constitution by treating Native children “differently,” and the Supreme Court should “agree that this codification of substandard treatment should not stand.”
While Goldwater postures as promoting racial equity, the language they use to describe Native children and families is deeply racist. Deliberately drawing on stereotypes, they argue that Native children with low blood quantum or who haven’t lived on a reservation are not Native enough for the law to apply. Sadly, this argument is working. In the most famous ICWA case to date, the media and the court were obsessed with a Cherokee baby’s blood quantum . While blood quantum was factually irrelevant to the legal questions raised in the “Baby Veronica” case, the first sentence of the majority opinion of the Supreme Court reads , “ This case is about a little girl (Baby Girl) who is classified as an Indian because she is 1.2 percent (3/256) Cherokee.”
While Goldwater postures as promoting racial equity, the language they use to describe Native children and families is deeply racist. CLICK TO TWEETThe type of litigation that the Goldwater Institute mounts is extremely expensive. To say that a conservative advocacy organization — that has shown no other interest in either child welfare nor Native rights — is making this investment based solely on the concern for the wellbeing of Native children is highly skeptical. Many legal experts in Indian Country see the end goal of Goldwater’s attack on ICWA as a back door route to undoing the legal structure that currently protects tribal sovereignty.
“When you look at the complaints you can see that they are attacking, in a very aggressive way, not just ICWA’s application under the constitution, but tribal sovereignty and tribal federal trust responsibility,” explains David Simmons, Government Affairs and Advocacy Director at the National Indian Child Welfare Association. “They are not just gungho about trying to push ICWA out of the way, they are also trying to undermine all of the precedent, all the federal law, all the court cases that have established tribal sovereignty and govern Native rights today.”
American Indian reservations comprise only 2% of all land in the United States but hold an estimated 20% of oil and gas reserves, 50% of uranium reserves, and 30% of all coal west of the Mississippi. In 2009, The Council of Energy Resource Tribes estimated energy resources on tribal land were worth about $1.5 trillion. A possible and convenient side effect of the Supreme Court striking down ICWA is that the decision could also gut the legal precedent holding minerally rich lands in trust for tribes—opening the floodgates not only for predatory adoption of Native babies, but also resource extraction on tribal land.
A possible and convenient side effect of the Supreme Court striking down ICWA is that the decision could also gut the legal precedent holding minerally rich lands in trust for tribes. CLICK TO TWEETSandy White Hawk (Sicangu Lakota) was born before ICWA was signed into law. Of her mother’s nine children, eight were taken away. White missionaries got Sandy and, among other physical and emotional abuses, they told her that her Native family never wanted her. As an adult she reconnected with her tribe and became a staunch advocate for ICWA . Today, she helps organize gatherings and healing spaces for other Native children who were adopted out.
When I ask Sandy what would happen to Native families if ICWA was declared unconstitutional she goes silent. After a long pause she says, “I guess it would be just like it was before ICWA was passed. We would become targets again… It would be another collective wound.”
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Is the Indian Child Welfare Act racist? Not according to the courts.
".. petitioners argued that application of ICWA violated their constitutional rights to equal protection based on their race and tribal affiliation. The Arizona Court of Appeals rejected that argument, ruling that “the additional requirements ICWA imposes on severance of a parent’s rights to an Indian child are based not on race, but on Indians’ political status and tribal sovereignty, and that those requirements are rationally related to the federal government’s desire to protect the integrity of Indian families and tribes.” The Arizona Court of Appeals also ruled that ICWA’s scope is not limited to termination proceedings instituted by state-licensed or public agencies and that ICWA’s “active efforts” requirement applies where the termination proceeding is based on abandonment. The U.S. Supreme Court rejected the petition for review without comment."
Nearly 700 Native American children in South Dakota are being removed from their homes every year, sometimes in questionable circumstances.
" By the 1970s, research found that approximately 25% to 35% of all Native children in the U.S. were being placed in foster homes, adoptive homes, or institutions, and 85% of these children were being placed outside of their families and communities, even when fit and willing relatives were available to care for them. Research has shown that Native children in foster care who stayed connected to their culture did better , and those who weren’t were at greater risk for behavioral and mental health problems."
So, ask yourself - how would you feel/react if some "guvmnt" person walked up to your doorway and FORCEFULLY took your child/children out of your arms so "THEY" could take better care of them?
I never had children, but if I had anyone and I mean anyone who would try to take them from me would find out what channeling your inner Mama Bear means.
I can see that they'd be digging some deep do-do for that action.
The states with the biggest infractions of ICWA are SD, ND, MT, ID, WA, OR, AK and CA. They REFUSE to follow the guidelines established by Congress.
I would get my gun
It's possible that is the case in some instances. The Texas case, cited by the article, doesn't involve a governmental taking of a child. The parents voluntarily gave the child up, who was subsequently placed with a non-native couple after neither of the tribes involved, after being noticed of the placement proceeding, stepped in. Only after 1.5 years did the tribes get involved, and even then, neither actually made an official appearance, but made a general announcement at the final hearing. The natural parents are pushing for adoption by the non-natives.
I'm all for preserving a child's relationship with the tribe, tribal family, tradition, custom, etc. However, in some instances, the determination can be arbitrary and capricious. That said, I did read the complaint, and there was some goofy argument in there. No time today for the rest of the pleadings, but I'll check them out too. Right now, at least in this instance, I'm on the side of the couple seeking to adopt the child though. I'd fight like hell to keep a baby I'd had for 1.5 years too. (That of course doesn't mean the ICWA is bogus, it just means...I'd fight like hell.)
The Koch Brothers want to exploit the resources and make more money. It wouldn't surprise me if they weren't the ones financing the lawsuits to overturn ICWA
" Recently, the Goldwater Institute has stepped into an entirely different legal arena: an effort to dismantle a landmark law called the Indian Child Welfare Act. ICWA requires that before private and public agencies place Native American children in foster care or with an adoptive family, they try to keep nuclear families together or, if that fails, to place children with their extended family, their tribe, or a member of another tribe. It was passed in 1978 after government programs removed a large number of American Indian children from their families. But Goldwater and Sandefur argue that, rather than protecting Indian children, ICWA subjects them to an unfair set of rules that don’t apply to other kids—a type of discrimination that Sandefur likens to Jim Crow.
“IWCA is not an outdated solution—it’s still very much needed.”—Sarah Kastelic, executive director of the National Indian Child Welfare Association
ICWA “is obviously racial discrimination,” Sandefur said when I visited his office in March. Picking up a biography of the abolitionist Frederick Douglass, he added: “I’ve been writing a lot about my great hero Frederick Douglass. I think his answer is that we all have a right to be treated equally by the law.”
Cloaking its efforts in the language of civil rights, Goldwater has launched a coordinated attack against ICWA alongside evangelical and anti-Indian-sovereignty groups, adoption advocates, and conservative organizations like the Cato Institute. Since 2015, Goldwater has litigated four state or federal cases against ICWA, and filed several briefs in support of other cases. Goldwater’s stated goal is to have the US Supreme Court strike down ICWA as unconstitutional. The implications go far beyond child welfare: Many tribal members fear that if Goldwater is successful, it could undermine the legal scaffolding of Native American self-determination. "
Phoenix-based Goldwater Institute, a nonprofit right-wing think tank with a donor roster that includes the Mercer family (Donald Trump’s biggest campaign contributors) and Donors Trust, a dark-money funnel for the Koch brothers, the DeVos family, and others . Goldwater is largely known for its efforts to limit regulation, promote tax cuts, expand school choice, and advance private-property rights.
It's just the latest wrinkle in 400 years of struggle and occupation.
One of many tales - thanks SP.
One wonders, what would have happened if the South won their freedom. Would the Oklahoma territories be an Indian state?
The North won and was punitive toward Wattie and the Cherokee Calvary for fighting with/for the South
and for being the last unit and General to surrender in late June 1865 almost 75 days after Lee's surrender.
If they had, maybe Eli Parker wouldn't have been made a General and head of the Indian Department.
Why is it that Dominant Society can not get it wrapped around their heads that Indian Tribes/Nations are SOVEREIGN nations? They don't need a "baby-sitter" or guardian. Hell, they worked quite well for over 40,000 years BEFORE Dominant Society showed up.
Why does Dominant Society feel/believe that they know how to take care of us better than we do/can? We have raised our families and children without assistance for centuries. Why do we have to "abide" by Dominant Society's rules/regulations?
MAGA ? This is just one of many inhumane acts from this administration. Get use to it or vote differently in mid terms. Sorry if this sounds harsh but this is what happens when you support and elect someone who is only beholden to Putin and big money.
PJ - the law was passed in 1978 and the abuse has continued and gotten worse with each year. Did not start with this administration.
Sorry but Native American's are brown peeps to this President and his alt right Administration and policy makers.
I don’t know if it’s unconstitutional the courts will decide that but I understand the desire to live with your own culture of people. I too desire to live within my own culture and similar people.