Supreme Court Challenge to Indian Child Welfare Act Threatens Native American Culture and Survival
Indian nations in the United States were granted — or imposed upon — American citizenship in 1924, but they are still considered separate nations for many governance purposes. Now, a case before the United States Supreme Court, Haaland v. Brackeen, challenges India’s Child Welfare Act or ICWA.
The law was passed by Congress in 1978 after it was discovered that twice as many Indigenous children as non-Indigenous youth were taken from their homes and placed in foster care or put up for adoption. ICWA prioritizes Native American families and tribes in fostering and adoption proceedings involving Native children. Both sides presented their arguments to the Supreme Court on November 9.
Between the lines, Melinda Tuhus spoke with Chase Iron Eyes, lead attorney for the South Dakota-based Lakota People’s Law Project. Here he exposes some of the history surrounding ICWA. As the era of so-called Indian residential schools resembling brutal concentration camps came to an end, many were replaced by a system of foster care and adoption that still resulted in the removal of hundreds of thousands of children. native children from their families and tribes. The Lakota People’s Law Project filed an amicus brief in the case, arguing for ICWA protection.
[Editor’s note: The audio version of this interview was edited to fit broadcasting time-length constraints.]
HUNT THE IRON EYES: This has happened to hundreds of thousands of natives and the purpose was to distance us from the TIWAHAY, the family circle, within which unwritten cultural mores and spiritual ceremonial protocols are passed on to the next generation. That’s what it’s about. ICWA was not born solely from the good judgment and benevolent actions of the US Congress. ICWA is the result of a struggle.
Look: 40 years later, you have states that won’t honor federal law, that won’t honor the right of a Native American tribe – inherent right, God-given right – to determine who their people are, who are its citizens, constituencies, their members and to have that right honored by the states of the union and by American settlers, who seek to adopt these Native American children, whom we regard as the source of our continued ability to determine our own destiny .
It’s a bit of a political reality here. There is a very violent colonial mentality at work here in these states that America now knows. Like South Dakota, for example, Kristi Noem, the current governor, is an Indian fighter; she hates tribal sovereignty. South Dakota takes in about 740 Indian children each year and when they take those children, according to the ICWA, they are supposed to notify the Indian parent and the tribe the child is from. Second, they’re supposed to place the aboriginal child in that child’s family or next of kin. This is option number 1. Option number 2, if they cannot be placed in the family or next of kin, then in the tribe of the child. Option number 3, if they cannot be placed in the child’s tribe, then any tribe or tribe the child may be eligible for enrollment from or may be descended from another tribal nation. We are a very mixed indigenous people. We were everywhere.
MELINDA TUHUS: Chase Iron Eyes, thank you for this story. Now, can you summarize the argument before the Supreme Court?
HUNT THE IRON EYES: The Supreme Court is considering two questions: whether or not the ICWA, a federal law, violates the anti-command doctrine, which says the federal government cannot tell states what to do in certain areas. Now, can the federal government, because of its treaty relationship, because of its trust relationship, demand that Indian identity be protected? We say yes, those of us on this side of the file say yes. Obviously, Texas and the law firm Gibson Dunn say no.
The second question is, is an Indian tribe an indigenous nation, a distinct political entity, or is it a race? Are Indians separate political entities or a race or ethnic minority under U.S. citizenship?
So obviously we say no, we are independent nations that have been forced into a state of dependency and that’s why they call us separate political entities or national dependent nations, which is an oxymoron. But we are not a race of American subjects whose summit of rights ends at civil rights and constitutional rights.
We worked very hard to organize and increase the capacity of the tribal government to create institutions that could accommodate all these children – I mean, if you play devil’s advocate, there is a lack of Indian homes to place the children who enter the Department of Social Services. .
In these colonially oppressed demographics and landscapes, the ills and symptoms of an alien and imposed culture of poverty often lead to broken families. But we were trying very hard to increase that tribal ability.
So Kevin Washburn was the Assistant Secretary of Indian Affairs [under the George W. Bush administration]; he came to Rapid City, South Dakota. We had various tribal leaders from the Standing Rock Nation and all the other tribes in the Oceti Sakowin put together and that was the start of our role in writing some of the patches for ICWA.
But no matter what we write and how much we say, that’s how good it should be. What matters is whether the states start honoring the First Americans, the tribal nations, or they keep taking our kids, because our kids are worth a ton of money. We’re talking hundreds of millions of dollars, in federal reimbursements that go from the United States to states like South Dakota that can accommodate that many children. They have a financial incentive to take our children in violation of ICWA.
So, you know, we hope for the best in the Supreme Court, but we also prepare for the worst.
For more information, visit the Lakota People’s Bill at lakotalaw.org, Protecting Indigenous Children at action.lakotalaw.org/native-children-and-families and protect the Indian Child Welfare Act to action.lakotalaw.org/action/protect-icwa.
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