Indian Child Welfare Act Potentially Being Overturned - And What This Means for Indigenous Children, Families, and the Environment
by Maddax Salas
4 January, 2023
Indian Child Welfare Act Potentially Being Overturned - And What This Means for Indigenous Children, Families, and the Environment
by Maddax Salas
4 January, 2023
What is the ICWA?
The Indian Child Welfare Act (ICWA) is a federal law that prevents Native American (Native) children from being taken from their homes without reason and prioritizes Native children in the foster care system to go to Native homes over those of other races, in an attempt to keep their cultures alive. It was officially instituted in 1978 when Native children were being taken away from their homes and forced into the foster care system as a way to “Americanize” them. Although this has been law since 1978, the Supreme Court announced in February of 2022 that they would be challenging it, and oral hearings officially took place on November 9, 2022. (The results of the hearings have not been released as of 11/30/22). But this raises two questions: why is this event significant to Native families, and how does it impact the environment?
The ICWA’s History and Why It's Needed
Before ICWA, it was far too common for child welfare and private adoption agencies to take Native children away from their families and tribes. At best, this was due to ignorance of Native culture and parenting; at worst, it arose from an apparent disdain for their traditions. Studies show that about 25-35% of all children living on reservations during this time were removed. Of those children, 85% were placed into White households, even when they had willing and eligible family members. Many times the children were put into boarding schools as a way to conform Native children into White culture. One of the schools stated that their mission was “to remove the Navajo child from the influence of his savage parents.” And in 1978 Congress passed the Indian Child Welfare Act, protecting the rights of Indian children to be able to stay with their families and tribes.
Brackeen vs. Haaland
Brackeen vs. Haaland is the specific case that will decide the fate of ICWA. The Brackeens are a White couple that adopted a Native child in 2018 after a failed attempt by the Navajo Nation to place them with a Navajo family. The couple is now attempting to adopt the child’s younger sister, but are unable due to ICWA. They are now challenging the law head-on by claiming that ICWA is unconstitutional and an act of “reverse racism,” which essentially means that they believe it is racist for Native children to be almost exclusively put into Native homes. The firm representing them is Gibson Dunn, which in the past has defended large oil companies such as Chevron and Shell. Along with the Brackeen family, there are numerous other people and organizations on their side. This includes six other non-Native couples trying to adopt Native children, as well as the states of Texas, Louisiana, and Indiana.
What Will Happen to Native Americans if ICWA is Overturned?
If ICWA is overturned, Native Americans claim that it will be easier for Native children and families to be separated, as it was prior to 1978. Other politicians and people that are in favor of ICWA being overturned state that this will not happen, as a parents’ race or culture should not impact whether or not they are able to adopt the child. However, ICWA supporters think otherwise. They believe that this can also continue the cultural genocide that has been happening for centuries. When Native American children are placed into White homes, they may start to lose their culture until it's a dusty memory of the past. Jason Swartley, a Native American man who was put into an American home before the enactment of ICWA states, “I was not enrolled, I had no documentation of that [and] I had no idea what tribe. So it was ‘allegedly’ a part of who I was, but I had no validation of that. It’s this feeling — a tremendous sense of loss.” If ICWA goes away, there will be many more people like Swartley in the future.
How Does This Impact the Environment?
As said before, the firm representing the Brackeen family, Gibson Dunn, is known for defending large oil companies, whose primary goal is to set up more oil fields. But Native Americans have been at the forefront of preventing these from popping up due to tribal sovereignty, or the rights and federal protections for tribes. According to Lauren van Schilfgaarde, a tribal sovereignty advocate, this law would “completely erase….tribal sovereignty.” Gibson Dunn knows that if ICWA gets overturned, this tribal sovereignty will weaken and allow for more and more damaging oil fields to destroy our Earth. On the other hand, anti-ICWA folks disagree and state that this potential overturning has nothing to do with the environment and is solely based upon getting rid of this “unconstitutional act.”
Sources
Joseph Guzman. “What is the Indian Child Welfare Act at the center of a new Supreme Court case?” The Hill, August 24, 2022
Unknown. “ICWA History and Purpose” Montana DPHHS, Unknown.
Unknown. “Recommendations for Reporting on the Indian Child Welfare Act” NICWA, Unknown.
https://www.nicwa.org/wp-content/uploads/2018/10/2018-NAJA_Guide-for-Reporting-on-ICWA.pdf
Unknown. “About ICWA” NICWA, Unknown.
https://www.nicwa.org/about-icwa/
Theodora Simon. “Native Families’ Right to Stay Together is at Stake at the Supreme Court” ACLU, August 18, 2022.
Maya Hodison. “Native American adoptees resonate with cultural erasure as the Indian Child Welfare Act now faces legal opposition” The Lawrence Times, September 18, 2022.
https://lawrencekstimes.com/2022/09/18/adoptees-cultural-erasure-icwa/
Robert Barnes. “Supreme Court to review Indian Child Welfare Act, which prioritizes adoptions by Native American parents or tribes” The Washington Post, February 28, 2022
https://www.washingtonpost.com/politics/2022/02/28/native-adoptions-supreme-court-indian-child/