It’s racist against white people and racist against Native Americans. It keeps neglected Native children out of the loving arms of white parents. It’s the federal government overstepping and trampling states’ rights. These are the outlandish charges being made against the 44-year-old federal law known as the Indian Child Welfare Act of 1978 (ICWA). On Wednesday, the Supreme Court will hear arguments in Haaland v. Brackeen, a case manufactured to take down ICWA. Gibson Dunn, a law firm best known as a good friend of powerful corporations, is leading the charge against Native families—and handling the case for free.
Contrary to the right-wing conspiracy theory underlying the challenge, ICWA was not designed to keep Indian children in dangerous Indian households at all costs. In fact, the placement priorities of ICWA only come into play once a determination of child safety has already been made. What ICWA does do is model best practices such as requiring legal cause to be shown for termination of parental rights, prioritizing children’s placement with extended family, and valuing preservation of a child’s heritage by keeping them within their culture when possible. This is especially urgent to stanch the loss of indigenous identity through generations of previous disastrous child welfare policy.
Prior to 1978, one-quarter to one-third of American Indian/Alaska Native children on reservations were taken for foster care or sent directly to closed adoptions with sealed records, even when another parent or extended family member was available. This followed a notorious era of church- and state-run indigenous boarding schools in the U.S. and Canada where Native children were assimilated into Anglo-American culture far from their family, many never to return. The first Native American Secretary of the Interior, Deb Haaland, has ordered investigations into hundreds of unmarked graves at these sites. The residential schools overlapped with a decade-long federal program known as the Indian Adoption Projects that scooped up waves of Native children, removing close to 90 percent of them to non-Native homes.
So why is ICWA under fire now, just as the federal government is beginning to reckon with its history of Native erasure? The Brackeens, the original plaintiffs, are a white couple who had three kids at the time they sought to adopt a Cherokee-Navajo infant girl whose mother’s parental rights had been terminated. Per ICWA, first family members and then tribal members were prioritized for placement of the baby. But after a potential placement with a Navajo couple fell through, both the Cherokee Nation and the Navajo Nation issued letters allowing the Brackeens’ adoption to proceed. The adoption process took four months, which is very reasonable in the world of family law, yet the Brackeens persisted in pursuing their case. Now backed by the likes of the right-wing Goldwater Institute and the state of Texas, they claim ICWA process hindered the adoption. Solidly red Texas was joined by Louisiana, Indiana, and Oklahoma along with red/purple Ohio in seeking to overturn ICWA.
Meanwhile 87 congressmen and a 24-state bipartisan coalition have filed amicus briefs to support ICWA’s successful 44-year collaboration between states and tribal nations. In addition, 26 child welfare organizations including the American Academy of Pediatrics and the American Medical Association, as well as the American Psychological Association and several state and tribal psychological associations, have filed pro-ICWA amicus briefs.
ICWA has had an impact on social work practice around the world that is quiet but profound, not least for my own sense of identity and heritage. Back before Congress passed the law, my adoptive parents were told by the adoption agency that “nothing was known” about my birth father. I grew up under the cloud of that mystery.
The reality—as I learned when I returned as an adult to my adoption agency to obtain “non-identifying” information from my adoption file—was that my birth mother had told the agency that my paternal heritage was American Indian. However, this information was withheld from my adoptive parents.
“Erasing Indian ancestry was standard social work policy back then,” the social worker explained to me as she paused from reading my file to look me in the eye. “It was thought better. But,” the social worker continued, “since the Indian Child Welfare Act of 1978, we don’t hide indigenous heritage anymore.”
I felt numb. My mother was friends with someone on the board of trustees of this nonprofit when I was placed, so it seemed they would be getting a premium baby. Apparently, my father’s Cherokee and Mohawk ancestry could tarnish an otherwise sterling pedigree. What’s not even in the record, but I later found out, is that my birth father had wanted to keep me and could have provided a stable home. But at that time, he had no legal say in the matter.
Under ICWA, my father’s indigenous ancestry and his willingness to keep me would have made me unavailable for relinquishment. Even for a pre-ICWA adult adoptee like me, the law has had an impact. It established my right to know my paternal heritage and even petition the court for my original birth certificate to learn his name: Bill. Bill told me when we met that he was New York City’s director of financial services for special needs adoptions and foster care. I believe this is how he worked through his loss of a child.
My Cherokee and Mohawk heritage was erased, and now that ICWA is in the Supreme Court’s crosshairs, it is a good time to be clear about what is at stake for tribes and their children. Perhaps I could have been a good resource in tribal efforts to revive the language: I am bilingual and worked professionally as an interpreter and translator. I would have loved to learn the Tsalagi Gawonihisdi (Cherokee) or Kanyen’kéha (Mohawk) languages. Most important, I would have loved to grow up with my birth father and the aunts, uncles, and cousins who look and move like me. I am getting to know some of them now, but so much has been lost to me.
ICWA has fostered a culture that benefits not only tribal member families, but even the 90 percent of U.S. Americans that claim no Indian heritage at all, and the almost 8 percent with indigenous heritage but no paperwork for tribal membership, not to mention the slightly less than 3 percent of Americans who are enrolled tribal members. It should be noted that most of us with some Native American heritage do not live on a reservation, nor are we enrolled or official members of a tribe. Yet we benefit from the more sensitive and respectful child welfare culture created by this act. It could have benefited me even on my non-Native maternal side of my family. Clearly no one in my birth-mother’s family wanted to raise me, right?
Wrong. In reality, two sets of cousins in my maternal family were hoping to adopt at the time that I was born. If priority had been placed on my remaining with my extended family at the time of my placement, theirs might have been appropriate homes. Many states have adopted the same priorities for all children that were pioneered by ICWA. ICWA’s placement priorities and standards have influenced several significant international programs, including the 1993 Hague Convention for Intercountry Adoption, the Intercountry Adoption Act, and multiple United Nations Conventions combating the trafficking of children for adoption. The U.N. Convention on the Rights of the Child, now ratified by 196 countries, defines the best interests of the child similarly to ICWA.
The erasure of Native Americans was just the stuff of fiction to me until I met my father and realized his loss, as well as my own, was poignantly real. Too many children have been taken from the beautiful living cultures that are indigenous to this land. We thrive on seeing our heritage, seeing ourselves reflected in genetic mirrors, and so we have to ask: Whose interest is served by cutting a child off from their roots?