For the next six months, a 4-year-old child from the Navajo Nation will be caught in the middle of a legal debate that has decades of history. Its result has the potential to decimate the sovereignty of Native American tribes across the nation.
The Indian Child Welfare Act (ICWA) of 1978 was implemented to give priority to Native tribes in child welfare cases to ensure the adoption of Native children into Native families, protecting their culture. This act was created in response to the massive amount of Native children being taken from their families.
A recent Texas case has the potential to dismantle this protective system.
In the case of Haaland v. Brackeen, multiple families in Texas are fighting to maintain their ability to adopt Native children and revoke the ICWA. The fight against this law began in 2018, when a federal court in Texas ruled that the ICWA was unconstitutional, but it was ultimately upheld. In September 2021, the Supreme Court granted the case to be heard.
The case, thus far, has been centered around the argument that Congress doesn’t have the power to enforce this law, and that it is unconstitutional, as it violates the equal protection clause on the basis of race.
The problem with this argument is that Native American tribes are political entities — not a racial group. Their relationship with the federal government is one of treaties based upon their citizenship, which grants Native people sovereignty.
“We are politically distinct first before we are racially distinct,” Loni Greninger, a leader in the Jamestown S’Klallam Tribe, stated in a Crosscut article that focuses on the impact of overturning of this law in Washington state.
This case cannot be evaluated without understanding the historical treatment of Native people.
In the early 19th century, Indigenous children were forcibly taken from their families and assimilated through boarding schools. This tactic was purposeful, with the goal of erasing Native culture and identity by disconnecting them from their land and people.
It seems those against the ICWA are invested in the idea of discrimination against white people. In fact, it has been the opposite for centuries.
The federal government essentially committed cultural genocide by assimilating Native people into their desired “white society.” This has manifested in many forms, including child welfare inequities.
According to a 2022 article in The New York Times, lawyers representing the state of Texas argued that the disproportionate number of Native children in foster care systems is a sign of “the high risk of neglect, violence, gang activity, drug abuse, alcoholism, and suicide among Indian children.”
Native Americans are struggling to support their children because of the cards they were dealt centuries ago that continue to impact their way of life. The belief that a poor parent should not have or care for children is fundamentally problematic and rooted in racism.
In the case of Native Americans, this notion held by social workers and policymakers is what drove the stealing of Native kids, but, of course, the justification was that it was always in the so-called “best interest” of the children.
These kinds of issues have many more layers of complexity. In this case, there is a much bigger threat.
Gibson Dunn, who is representing Texas pro bono, is a powerful law firm that often represents big oil companies like those responsible for the Dakota Access and Line 3 pipelines, which Native tribes have protested nationally.
On the surface, this case is about the adoption of Native children into non-Native households. However, it is also about the pervasive discrimination against Indigenous people and a blatant disregard for their needs and agency as sovereign groups.
In Washington state, a version of the ICWA was passed in 2011 to strengthen the federal law. The absence of the ICWA will make this law unenforceable. Native families in Washington, like Robin Little Wing Sigo who raised her family on the Port Madison Indian Reservation, would be separated and her children would lose their connection to the Suquamish tribe.
Accounts of the trauma inflicted on Native children in boarding schools have been repeatedly told by the Tulalip tribe. The importance of this law lies not only with Native children now, but also the children who were abused and ripped from their families years ago, who are now adults fighting to protect their culture for future generations.
To see this happening in my home state of Texas is disheartening. It actively increases my concern with the lack of education surrounding Texas’ history with Native Americans. The removal of the ICWA will erase the already faded recognition of tribes throughout the state.
If the ICWA is overturned, the sovereignty that protected Native Americans for centuries will diminish.
Reach writer Sophie Knight at firstname.lastname@example.org. Twitter: @knightsophie13
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