ICWA sovereignty supreme court 2000

Why Are Right-Wing Groups Targeting a Law Aimed at Protecting Native Families?

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The Indian Child Welfare Act set out to fix generations of harm to Native kids. The Supreme Court could soon toss it aside.

In 2016, a Navajo and Cherokee 10-month-old named Zachary arrived in the home of a white, evangelical couple named Jennifer and Chad Brackeen. The Brackeens lived on an acre lot outside of Fort Worth, Texas, with a pool and a zip line. The couple had come to believe that fostering children was one way, they told the New York Times in 2019, to “rectify our blessings.”

The Brackeens were told from the outset that they would not be able to adopt the baby, whose mother had a history of drug use. The Indian Child Welfare Act, the 1978 legislation passed in response to the long history of family separation and forced assimilation of Native communities, prioritizes placing Native children who have been removed from their parents with relatives and members of the same tribe. But the Brackeens became attached to Zachary and, by the spring of 2017, had decided they wanted to adopt him. When a judge ordered that Zachary be placed with a Navajo couple who could adopt him, the Brackeens pushed back, obtaining an emergency stay. Eventually, the tribe backed out. The Brackeens finalized their adoption.

The custody battle for Zachary is one of three lawsuits that now form the basis of the Supreme Court case known as Brackeen v. Haaland. In all three lawsuits, non-Native foster parents wanted to adopt Native children; two of the three were ultimately successful in doing so. But the foster parents—along with the attorneys general for three states, with the backing of deep-pocketed right-wing groups like the Goldwater Institute and the Bradley Foundation—are suing the federal government and five tribes on the grounds that ICWA represents race-based discrimination and an overly intrusive federal government.

“One of the things that tribes need to continue to exist is their children,” says Shannon Smith, executive director of the Indian Child Welfare Act Law Center, which provides legal services for Native families. “Things just don’t exist if you don’t have kids.”

Some legal scholars argue that the case, which will be heard before the court on Wednesday, threatens to not only strike down ICWA, but also to question the fundamental rights of tribes that go well beyond child welfare—including rights around water, land, gaming, policing, and Native sovereignty itself.

For 150 years, the federal government funded more than 400 boarding schools, often run by churches, that stripped Native children of their language, religion, and culture. As the boarding school movement died down in the mid-1900s, government-sponsored programs, including the Indian Adoption Project, emerged to place Native children with non-Native adoptive families. A 1966 Bureau of Indian Affairs press release read, “One little, two little, three little Indians—and 206 more—are brightening the homes and lives of 172 American families, mostly non-Indians, who have taken the Indian waifs as their own.”

As a child, Ms. Bradshaw was forced from her own home into a residential boarding school—from which she ran away. Thus when she was separated from P.S., she resolved to persist until her granddaughter was returned to her care. When the County erroneously refused to place P.S. with Ms. Bradshaw, she pressed on, attending every hearing in P.S.’s case. Ms. Bradshaw persisted in investigating placements with family and kin; she persisted by finding a non-profit to provide legal support to her efforts; she persisted in overcoming disqualifiers to her foster care license; she persisted through home studies, administrative corrections, hurtful media coverage, hearings, and appeals.

She persisted until her granddaughter came home.

By the time ICWA passed in 1978, between 25 and 35 percent of all Native children had been taken from their families and put in foster homes, adoptive homes, or institutions, according to surveys by the Association on American Indian Affairs.

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