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Passed by Congress in 1978, The聽Indian Child Welfare Act听(ICWA) faces an existential threat from the current Supreme Court case聽Haaland v. Brackeen.听The Justices heard oral arguments in November, the Court鈥檚 decision will be announced soon. Despite the success of this policy in remediating harms associated with the disproportionate targeting of Native children for adoption, particularly by non-Native families, some White Texas adoptive parents and the state of Texas argue that the policy operates on racial preference and impedes state autonomy.听

Political Science major Sophia Doran, who just completed her Freshman Year at UIS, chose to write about this contemporary issue in her paper 鈥淭he Indian Child Welfare Act and the Dangers It Faces鈥� submitted to Dr. Isabel Skinner for a new Race and Ethnicity Politics course offered online by the School of Politics and International Affairs. This post includes excerpts from Doran鈥檚 paper edited and with additional content by Dr. Skinner. 

The targeting of indigenous peoples runs deep through American history and was especially prevalent in the 19th century.听Policymakers developed a new way to strip indigenous peoples of their identity by forcibly separating families and placing Native children in boarding schools. In these boarding schools, officials hoped to 鈥渞e-educate鈥� children by pushing Western ideologies and ways of life onto them. US officials also framed Native mothers negatively by critiquing their nurturing skills, child rearing, and housekeeping (Jacobs 139). After boarding schools were phased out, officials relied heavily on this framing to continue to pursue the removal of Native children through adoption. Chief of the Cherokee Nation, Chuck Hoskin Jr., estimates "缅北禁地 a third of native children were adopted away through ... child welfare agency actions鈥�.And of that group, about 85% were adopted outside of tribal families (Totenberg)."

For example, the Indian Adoption Project (IAP) allowed the interstate adoption of Native children. This practice became so rampant that 鈥渋n Minnesota between 1971 and 1972, one out of every four Indian children鈥�was placed up for adoption. Over this same period, Indian children adoptions were five times greater than that of non-Indian children, and鈥�approximately ninety percent of these Indian children were placed with non-Indian parents (Phillips, 352).鈥�

It took until the 1970s for activists鈥� successful intervention on behalf of Native children and tribal cultural preservation. William Byler, executive director of the Association on American Indian Affairs, presented Congress with numerous statistics explaining the inhumane treatment of Native families and children (MacEachron et al. 453). After extensive testimony, Congress ultimately agreed with Byler and passed the Indian Child Welfare Act in 1978 (MacEachron et al. 454).听

ICWA protects Native children by reinforcing their tribal rights through the: 鈥溾��establishment of and adherence to minimum standards in order to remove Indian children from their families; placement of Indian children in homes that reflect the unique values of Indian culture; and government assistance for child and family service program鈥澨�(Phillips 354). This is arguably the first time the US government recognized the value of indigenous cultural preservation. Additionally, the ICWA banned from consideration damaging stereotypic rationales for the adoption of a Native child including 鈥済eneric poverty, alcohol abuse, or nonconforming social behavior (MacEachron et al. 454).鈥澛�

ICWA has been successful in its goal of reducing the disproportion of Native children removed to non-Native homes, and evening out the adoption rates of Native to non-Native children in general (Day et al. 14;聽MacEachron et al. 457). The harms experienced by Native children removed from their families and tribal contexts are numerous. For example, research has found that Native adults who were sent to boarding schools reported 鈥溾�� a prevailing sense of despair, loneliness, and isolation from family and community,鈥� on top of physical health complications (Gallegos and Fort 2).听

Today, Native children have a suicide rate twice as high as the national rate and placing Native children in non-Native households has been shown to yield negative health consequences for the child including heightened rates of depression and lower self-esteem (Gallegos and Fort, 2). Conversely, tribal, familial, and cultural connections have been shown to benefit Native children and adolescents鈥� mental health and behavior (Gallegos and Fort 3).听

Again, despite the continued utility of ICWA, this policy is currently at risk of elimination in the case聽Haaland v. Brackeen听(Van de Venter).听White, non-Native adoptive families from Texas are claiming the Act is unconstitutional as it operates on racial classification preference in violation of the Equal Protection Clause under the 14^th聽Amendment, and it impedes states鈥� rights. This is in spite of the fact that, as journalist at Cherokee nation member Rebecca Nagle explains, Native or 鈥淎merican Indian鈥� status and tribal membership, while typically based on ancestry, is a聽political聽rather than racial categorization (Parker et al.). 聽

Also, paradoxically, Nagle observes that, in all but one instance, the White couple plaintiffs in this case won their previous custody cases to adopt Native children yet maintain a complaint of discrimination. Jennifer and Chad Brackeen are the namesake plaintiffs in this case. They fostered a Navajo and Cherokee baby boy but adopted him soon after the birth parents terminated their rights to him. Now, after a baby girl from the same family has been placed in the foster system, the Brackeens are trying to adopt her, despite objections from her tribe and great-aunt. The Brackeens believe the girl is best off living with them and her brother, whereas the Navajo (顿颈苍茅) believe she is better off with the tribe (Totenberg).听

Additionally, this plaintiffs鈥� argument emphasizes state rights yet disregards the legal tradition of tribal sovereignty. Legally, the relationship between the US and recognized Native tribes is one that treats tribes as sovereign entities much like foreign governments that exist within the bounds of states and the United States. Tribal citizens are also US citizens since the passage of the Dawes Act of 1880. As the US Bureau of Indian Affairs explains, 鈥淸In the] 1830's, U. S. Supreme Court Chief Justice John Marshall articulated the fundamental principle that has guided the evolution of federal Indian law to the present:聽That tribes possess a nationhood status and retain inherent powers of self-government听(bia.gov, emphasis original).鈥� According to聽SCOTUSblog聽reporter Amy Howe, Justices Coney Barrett, Gorsuch, and Kagan all mentioned the 鈥減lenary鈥� or absolute power of Congress to regulate Indian Affairs and seemed therefore skeptical of the argument by the plaintiffs鈥� lawyers that Congress overstepped with ICWA four and a half decades ago (Howe).听

As Rebecca Nagle described to B.A. Parker on the聽Code Switch聽podcast by聽NPR, 鈥淣ative kids have been the tip of the spear in attacks on tribal sovereignty for generations (Parker et al.).鈥� If ICWA is struck down, Native children may face serious consequences, as has been seen in the past, and聽all聽tribal rights will fall under scrutiny.听In sum, the Indian Child Welfare Act is one of the strongest protections in place for Native children, and its elimination would once again endanger one of the most vulnerable race and age groups in the US.

The existential threat faced by ICWA comes at a time of nationwide organizing calling attention to the 鈥�silent genocide鈥� of 聽missing and murdered indigenous people, particularly women (see the聽Association of American Indian Affairs' resource page聽to learn more).听

While, as mentioned previously, there are distinctions between the issues facing indigenous communities and those impacting racial and ethnic minorities in the US, this case resonates with several themes from the course Doran took offered by Dr. Skinner in the School of Politics and International Affairs. Race and Ethnicity Politics (REP) is a subfield of Political Science dedicated to 鈥渕ajor theories and empirical approaches [to] the study of race and ethnicity as political identities鈥� (University of California, Berkeley, ). Created by Dr. Skinner in 2023, the course is divided into three thematic parts: The Social and Legal Construction of Race & Ethnicity; Race, Ethnicity, and Political Participation and Power; and The Racialization of Public Policy and Racially Disparate Policy Outcomes.听

Key themes arising from the course which relate to the situation described here include the shift from explicit and biology-based forms of racism to modern symbolic and cultural justifications for discrimination against racial minority groups. ICWA helps challenge problematic rationales for removing Native children which are consistent with what scholars would term 鈥渕odern eugenics鈥� or the belief that socialization of children by poor, female-headed, or otherwise marginal or 鈥渦ndesirable鈥� groups leads to negative behavioral, physical, and intellectual traits (Pierson-Balik 12).听

Furthermore, this course unpacks how public policy issues and even social groups are constructed through communication, public perception, and the law. In Haaland v. Brakeen, the very concepts of indigenous identity and tribal sovereignty are in question and the 14^th Amendment is invoked ironically to preserve the Equal Protection of White Americans. Finally, the course addresses the non-linearity of social change and the reality that even hard-won rights can be rolled back. 

"Let us put our minds together and see what kind of future we can build for our children" 

-Chief Sitting Bull, Sioux, 1867 

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Authors:

Sophia Doran is a Political Science major who just finished her Freshman year at UIS.

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References:

聽Day, Angelique, et al. 鈥溾�� Children鈥檚 Voice, vol. 28, no. 1, 2019, pp. 12鈥�15. JSTOR,

鈥�.鈥漊S Department of the Interior Bureau of Indian Affairs.

Gallegos, Joaquin R., and Kathryn E. Fort. 鈥�.鈥� Harvard Public Health Review, vol. 12, 2017, pp. 1鈥�7. JSTOR.

鈥�.鈥渔测别锄.听

Howe, Amy. 鈥溾�澛燬COTUSblog. November 9^th, 2022.听

Jacobs, Margaret D. 鈥溾�� American Indian Quarterly, vol. 37, no. 1鈥�2, 2013, pp. 136鈥�59. JSTOR.

MacEachron, Ann E., et al. 鈥溾�� Social Service Review, vol. 70, no. 3, 1996, pp. 451鈥�63. JSTOR.

Parker, B.A. et al. 鈥溾��. NPR Code Switch (podcast). May 17th. 2023.听

Philips, Sloan. 鈥溾�� American Indian Law Review, vol. 21, no. 2, 1997, pp. 351鈥�64. JSTOR.

Pierson-Balik, Denise A. 鈥溾�� Race, Gender & Class, vol. 10, no. 1, 2003, pp. 11鈥�30. JSTOR,聽

鈥溾�澛燭he Charles and Louise Traver鈥檚 Department of Political Science, Berkeley. 2021.听

鈥溾��.听US Congress.听

Totenberg, Nina. 鈥�.鈥� NPR, 8. Nov. 2022.

Van de Venter, Karlee. 鈥�.鈥� NBC Right Now, 24 Mar. 2023.听

鈥溾��,聽Association on American Indian Affairs.听n.d.听