Native American tribes got a big win in August when a federal court upheld the Indian Child Welfare Act, a pivotal 1978 law that requires states to prioritize placing Native children in foster or adoptive homes with Native families over non-Native families.
But the decision by a three-judge panel of the U.S. Court of Appeals for the 5th Circuit is now being reconsidered by the full court, which announced earlier this month that it is granting a rehearing in a case known as Brackeen v. Bernhardt.
It’s the most consequential challenge to ICWA since its inception, and tribes fear a ruling against the law could threaten all tribes’ inherent sovereignty. That’s because the plaintiffs in the case, a non-Native couple trying to adopt a Native child, are arguing that ICWA is race-based and violates the equal protection clause in the Constitution.
“If #ICWA opponents in Brackeen v. Bernhardt are successful, it will potentially impact the sovereignty of every tribe, because the plaintiffs view tribes as racial entities, not sovereign governments,” the Cherokee Nation tweeted in March.
The reason ICWA exists at all is because Congress wanted to try to remedy to an ugly period in American history: For decades, the U.S. government took tens of thousands of Native children away from their families on reservations, sometimes forcibly, and put them in boarding schools or placed them with white families to assimilate them into white culture.
These children were punished for speaking their native tongue and stripped of their traditional clothing. Their hair was cut. They suffered physical, sexual and cultural abuse. Some never returned home. Surveys in 1969 and again in 1974 found that between 25 to 35% of all Indian children had been separated from their families.
The intent, as Brigadier General Richard Henry Pratt, founder of the Carlisle Indian Industrial School, put it in 1892, was to “kill the Indian … and save the man.”
ICWA has since helped to rebuild Native communities and become “a model for the child welfare policies that are best practices generally,” according to 31 national child welfare groups who filed a brief in the Brackeen v. Bernhardt case. Striking down the law, they argue, would have a “devastating real-world effect.”
Another 325 tribal nations, 57 Native organizations, 21 states, seven members of Congress, and dozens of scholars of federal Indian law and constitutional law filed amicus briefs in the case in strong support of preserving ICWA.
As this lawsuit plays out in court, HuffPost sat down with a mix of ICWA experts, Native families who have benefited from the law, and non-Native people currently in court fighting to adopt Native children. Their perspectives on ICWA were, not surprisingly, scattered.
“If you take the children and they never learn of their heritage, of their tribal religions, and they never get schooled in how to become leaders in their own nations, it’s a way to slowly kill that tribe and that collective identity.”
- Margaret Jacobs, University of Nebraska at Lincoln
Scholars of Native child removal say there’s no question that ICWA has been vital for restoring Native communities and culture damaged by the U.S. government.
“If you take the children and they never learn of their heritage, of their tribal religions, and they never get schooled in how to become leaders in their own nations, it’s a way to slowly kill that tribe and that collective identity,” said Margaret Jacobs, a history professor at the University of Nebraska at Lincoln.
“Thanks to the Indian Child Welfare Act, I have a family,” said Allie Maldonado, a member and chief judge of the Little Traverse Bay Bands of Odawa Indians in Michigan. Her mother and grandmother were taken away from their reservations by the U.S. government to be assimilated. Because of ICWA, Maldonado was able to adopt her son from a neighboring tribe.
“What that’s meant for my son is that not only is he growing up in his community,” said Maldonado, choking up, “but he has a connection to his community that will stay with him and be relevant to him for his entire life.”
Meanwhile, Anita Gullard, a non-Native woman in Lakewood Park, Minnesota, is in court trying to adopt four Native children that she and her husband have been raising. The Gullards have been the kids’ legal guardians since 2016, but their biological mom, a citizen of White Earth Nation, is trying to regain custody.
Gullard said it is her family being torn apart by ICWA.
“It’s like the tribe is trying to stack the cards against us, and simply because we’re not Native American,” she said. “They belong here. This is our family.”
Watch the video above for people’s personal stories about how ICWA has affected them.