The Legal Attack on the Indian Child Welfare Act and the Long History of Religiously Motivated Subjugation of Indigenous People

By Tokata Iron Eyes

Date: 07/19/2023

In 1978, the Indian Child Welfare Act (ICWA) was signed into federal law. Over the years, it became a gold standard in child welfare practice — but that hasn’t stopped certain conservative special interests from targeting ICWA as a means of eroding tribal sovereignty through legal action. Fortunately, last month, the latest and most dangerous attack was repelled when the U.S. Supreme Court ruled 7-2 to preserve the law.

This great victory should be tempered by an understanding that this fight isn’t over. The High Court may have protected ICWA for now, but the door is still wide open for future legal attacks. It’s incumbent on all of us to make sure all bases are covered in the interim. If you have not already done so, please write to your state legislators and tell them to continue protecting ICWA — and Native children and sovereignty — by codifying its key tenets at the state level.

I encourage you to read an op-ed for YES! Magazine written by my dad, Lakota Law co-director and lead counsel Chase Iron Eyes, to fully understand the legal ruling and ramifications. In this piece, I’m going to focus a little more on the history of how we got here. That includes the ongoing cultural genocide of Native nations through the taking of our children — and the pernicious role played by colonizers, particularly as expressed through religious zealotry.

ICWA was designed as an urgently needed response to data showing that as much as one third of all Native children were under the custody of child welfare systems. That’s a staggering statistic, and even with ICWA, child removal remains a huge problem today. In South Dakota where I live, Native children make up nearly 60 percent of those in foster care, though Native people represent just 15 percent of the population.

The era in which the child welfare system began being abused to displace Native children from their homes and families is colloquially known, in Canada, as the Sixties Scoop. The practices were similar on the south side of that border in the U.S. Child welfare agents at the time were working on assumptions riddled with racism and bias, often taking children from homes because they viewed Native parents as unfit to raise their own children. Native families living in poverty but providing for their children in traditional ways were viewed as neglectful, and their kids were often taken without their consent.

That, of course, was just the latest iteration in a longstanding series of policies designed to eliminate Indigenous culture. Prior to the Sixties Scoop, Native children were removed and kept from their families during the Indian boarding school era. They were made to endure a process of forced assimilation by way of "re-education.” Federally sanctioned and Church-affiliated institutions were set up in both the U.S. and Canada, populated with Indigenous children of all nations. These “schools" were rampant with sexual, physical, psychological, and spiritual abuses. This era forever altered families and communities — and our ways of relating not only to one another but also our homelands, languages, and cultures.

All of this — the entire treatment of Indigenous people (not just here, but around the world) as a subhuman element standing in the way of Western progress, and thus needing elimination — dates back to at least the 15th century. Christopher Columbus and other “explorers” did their conquering under the auspices of the Doctrine of Discovery, a series of papal bulls used to establish a religious, political, and legal justification for colonization and seizure of land inhabited by non-Christians. That outdated framework (even the Vatican recently repudiated it) continued to directly inform legal decisions by the U.S. Supreme Court into the 21st century.

Make no mistake: In 2023, Native children are subject to violence and displacement. In Halland v. Brackeen, the case recently decided by the Supreme Court, a white, evangelical family (the Brackeens) in Texas publicly stated their religious motivations for fostering and adopting. And they specifically kept trying to foster and adopt Native kids.

The Haaland v. Brackeen case specifically revolved around the Brackeens’ attempt to adopt a Diné (Navajo) child. The Navajo nation found a Native family willing to adopt, and that placement complied with the rules of ICWA, which gives a preference to Native families. The Brackeen's went to court and filed a petition to adopt just two days before they were due to give him up. (They ultimately retained custody.)

The state initially denied the Brackeens’, which is where the story gets even more interesting. A law firm called Gibson Dunn, known for representing Big Oil clients like Chevron, Shell, and the owners of the Dakota Access pipeline, offered to represent them, pro bono, in their appeal process. Gibson Dunn also helped the Brackeens file a lawsuit in federal court with the goal of overturning ICWA entirely.

Had that case gone differently in the Supreme Court, it could have weakened tribes’ authority as sovereign political entities, undermining federal Indian law and putting our communities at an even higher risk for exploitation and subjugation at the hands of corporate and religious interests. In the last decade, ICWA has been challenged more times than the Affordable Care Act, which should tell you all you need to know about its importance.

According to Article 8 of the United Nations Declaration on the Rights of Indigenous Peoples, “Indigenous peoples and individuals have the right not to be subjected to forced assimilation or destruction of their culture.”

It’s a shame that nations run by colonizers pay lip service, at best, to many of the key points contained in this important document. ICWA was a rare and important piece of legislation — and at least, for now, it remains the law of the land. That’s a testament to years of hard work and education by tribes, lawyers, journalists, and organizations.

But, given the long history of colonization and subjugation — often motivated by religion, which notably informs the thinking of today’s supermajority conservative Supreme Court — we can only celebrate if we back it up with continued vigilance.

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