Understanding the Indian Child Welfare Act
On Wednesday, November 9th, the Supreme Court began hearing oral arguments in the federal court case known as Brackeen v. Haaland. This case is focused on the constitutionality of the Indian Child Welfare Act. The ICWA was created in 1978 to legally require child welfare agencies to make active efforts to reunite Native children with their parents and allow tribes to advocate on the behalf of the Native adoptee and/or move the case to tribal court. If the child cannot be reunited with their parents, placement preferences function in the following order: members of their family, members of their tribe, and then other Native homes. This order places white families looking to adopt last in line, which is what the Brackeens are referring to as ‘racial discrimination’. The Brackeens, a white family from Texas, are claiming that the Indian Child Welfare Act unfairly discriminates against them on the basis of race and thus violates the 14th Amendment. Deb Haaland of the Department of the Interior, along with the Department of Health & Human Affairs, and the Bureau of Indian Affairs are defending the constitutionality of the ICWA.
The implications of this case go far beyond child welfare. The ICWA is merely a stepping-stone for dismantling Indigenous sovereignty and their right to self-govern. With this agenda in mind, Native children have become political pawns in what is really a battle for land and profit.
In order to better understand the legal rights and protections of Indigenous people as a distinct political identity, I sat down with Indigenous educator Feyla McNamara for the following conversation. Feyla is the co-founder of Massachusetts-based organization Tides for Reproductive Freedom – the first abortion fund in MA founded and led by Queer, Black, & Indigenous people.
Katherine Burns: Why was the Indian Child Welfare Act created in the first place?
Feyla McNamara: The Indian Child Welfare Act goes back to residential schools. The removal of Native kids from their homes and the idea of trying to ‘break the Indian out of us’, but with no recognition that you still walk in this world as a Native person. You’re then suspended between communities because you’ve been removed from your Native tribe and your family, which leads to this struggle of not fitting in anywhere. As residential schools slowly closed and there was this failed experiment of incorporating us into white society, there was also a shift of white families trying to adopt Native children. This was like a continuation of that residential school process of trying to take Native people out of their communities and place them into non-Native ones. So, legislation was lobbied to promote the idea that Native kids should stay with Native families. Not because of any sort of segregation or exclusion, but simply the idea that it’s important for Native people to have autonomy over our kids and families.It’s interesting because we’re one of the few communities to have a protection like that. There aren’t protections for other kids of color. There’s nothing in place saying like ‘Hey are you prepared to adopt a child that’s not the same race as you? Do you have the cultural competency to navigate that?” The reason we have that protection is kind of a hat tipped to our Native sovereignty as separate nations that exist outside of the United States. ICWA is not a great piece of legislation, but it does protect our communities and identity in a way that goes beyond just a child-by-child scenario. It does a lot more than focusing on kids, and our culture, and community. It says you have to acknowledge that we are separate entities that exist outside of the United States.
Burns: What role do racist stereotypes and lack of understanding of Indigenous cultures and their right to tribal sovereignty play in the media’s framing of this case?
McNamara: It goes back to this idea that Native parents aren’t good parents. There’s some infantilization and a lack of awareness of the struggles that we face that are compounded by not just racism, but classism, ableism, etc. Especially when we talk about reservation communities; the very intense poverty that people experience can go hand in hand with substance abuse. There’s this unwillingness to see that the systems put in place by the U.S. government and by 500 years of colonization have impacted our communities in a way that’s very real. Rather than want to create systems where we can work on these struggles just like any other community, we assign blame to Natives. Even though we struggle with these various things that are impacting us because we don’t have systems in place to help us.
It’s a very surface-level observation on Native communities. It’s based deeply on stereotypes that we’re not good parents and goes back to the idea that we don’t have control over our relationship to substances- that we have a tendency to be alcoholics. There’s no looking at us from a broader lens and understanding why do we have struggles with alcohol? Why do we have struggles with depression? Why do we have struggles with obesity? You know all the things that go hand in hand with having your complete infrastructure pulled out from under you. Being put into a completely different box than what we’ve traditionally existed in, stripping us of our language, our culture, all these different things that genocide and colonization has done. It’s very easy to lean on this idea that we’re not good parents because there’s this evidence of depression, alcoholism, other kinds of substance abuse, poverty. There’s no willingness to see all the ways in which we have continued to thrive as communities- to actually engage with us and see what we’re doing to support one another.
Burns: Gibson Dunn, the law firm representing the Brakeens pro bono also represents huge oil companies like Shell & Chevron in addition to the corporation behind the Dakota Access pipeline. I was wondering if you think that Native resistance to oil pipelines and climate destruction has anything to do with the incentives behind this lawsuit? I know striking down ICWA would counter tribal sovereignty and the right to land, so there appears to be a large profit motive behind all of this that people aren’t really talking about.
McNamara: You are spot on with that. You can take a family crying about how much they love this baby and point to this poverty porn of wherever this child is coming from. You can really pull on the heartstrings of people, but you’re exactly right. The underlying argument at hand is if you can strike down ICWA, then you can strip Natives of their sovereignty. Which then means you can strip us of our land even though we still do not have much control over that- we have minimal claim to our land at this point. With tribal sovereignty we can say “No we don’t want you coming here to drill for oil” or “We have to go have a tribal council meeting and talk about whether we want to engage in this or not before you start this project on our land”. You get rid of our right for these processes, you can make more money. Especially because a lot of the land that’s been set aside for Native people is in oil producing areas. Or Uranium, or other substances we shouldn’t be drilling for in the first place.
Burns: Do you think that under our current legal system there is room for recognition of tribal courts? I know another large part of the legal argument surrounding this case is that it’s unconstitutional for Congress to be granting power to tribal courts to determine the placement of Native children & how it’s ‘federal overreach’ for them to do so. Under the confines of our current system there just doesn’t appear to be a lot of space or recognition for Native law.
McNamara: I always think there’s space for it. I just think the problem is that not a lot of people understand Native people. I do very baseline education around Native folks along with other Native communities here. You’re starting at a baseline of “Hey Native Americans are still alive!”. We have these court systems that are outside of your court. We really should be working in congruence with your court because we’re like these little mini countries that exist inside your country. You know, I’m an optimist. I do think there’s willingness among our country as a whole to understand. I do think that’s possible. I just don’t think it’s in the interest of the federal government and that’s the struggle. I think about all the money that’s been held in trusts by the government for tribal nations and has been there since the 1800s. Again, we’re talking about 200 years of money being held in these trusts and Natives not being trusted to hold our own money. That’s money that’s been made off our land, money that’s been made off oil that’s been drilled from our land. It’s like paternalism by the United States government by holding that power dynamic in that way as opposed to holding us at a close to equal level. But this is again, in the interest of the government because they can strip us of our rights and chip away at our existence. It comes back to even the blood quantum being this construct of “You’re only Native if you’re this percentage”. This comes back to abortion and abortion access. There’s a lot of hesitancy in Native communities around abortion because there’s this stress to create Native babies and expand our tribes. It messes with your mind around how you’re engaging with your bodily autonomy. You feel this greater responsibility to your tribe and your people to keep us around and going. That’s another form of paternalism that’s been created for us. Well, we can make the determination of our blood quantum, but the whole conversation has been imposed on us by the government.
Burns: If the Indian Child Welfare Act gets overturned what can people do to support Native resistance?
McNamara: I think engaging with Native communities in meaningful ways like showing up to events that are happening from our communities. This is Native heritage month – showing up for actual Native communities, figuring out whose land you’re on, but going above and beyond that. Figure out whose land you’re on and see if they have events going on. Are there any things that you can do to educate yourself on what their community is currently experiencing? Try to engage in authentic ways. On a broader level, spreading awareness about tribal sovereignty and understanding that this isn’t just about being able to adopt a child of color. Making the argument that something better than ICWA has to be made.
Burns: What do you think would be better than ICWA?
McNamara: Having infrastructure that goes beyond where a child can and can’t be in our communities. Investing more into our communities so that we don’t end up in situations where kids are being removed from their families. Creating more infrastructure within tribal communities and giving us the tools for family planning. At the end of the day, when children are removed from their homes it’s often done in a pretty biased way. It goes back to those roots of the residential schools and removal of Native kids. So yes, there should be protections in place like ICWA that keep us in our communities, but building an infrastructure that allows us to address the issues within our communities ourselves would be better. Along with legislation making sure that tribal nations have what we need in order to do so.