America's Original Sin Continues: The Fight Over Native Children

The Indian Child Welfare Act pushes for Native children to be adopted by Native families. With its constitutionality challenged, tribal sovereignty hangs in the balance.
Three Navajo children, dressed in traditional clothing, stand barefoot in the grass against the rugged landscape of an unspecified Navajo reservation, United States, circa 1935.
Three Navajo children, dressed in traditional clothing, stand barefoot in the grass against the rugged landscape of an unspecified Navajo reservation, United States, circa 1935.
Illustration: HuffPost; Photos: FPG via Getty Images

In order to keep us from building power to be free and liberated, the strategy is simple: Keep us poor, keep us ignorant, keep us divided and keep us sick.

This game plan likely sounds familiar to many of you, because it is the living legacy of the white supremacy and oppression baked into the social, economic and political systems of the United States. The same strategy used on Native people has been used on Black, brown, Asian and Pacific Islander communities, immigrants, refugees and undocumented folks, and other intersectional identities who, like us, remain targets.

There have been many state-sanctioned forms of violence against Native people. The list includes educational institutions that killed a still-unknown number of our children, soldiers who targeted and slaughtered our ancestors at religious ceremonies, and, more recently, state agencies and nonprofits that practiced enforced sterilization. These have all been part of policy murder against Native people, elements in a centuries-old, calculated and proven political strategy.

In the highest court of the land, the Indian Child Welfare Act is expected to be debated later this year in Brackeen v. Haaland, in what many in the field of federal Indian law are describing as the largest threat to Indian Country and sovereignty in centuries.

When it was passed in 1978, ICWA was landmark legislation, setting unprecedented protections to address the assimilationist policies that led to state child welfare and private adoption agencies systematically removing almost a third of all American Indian and Alaska Native children from their homes. (Yes, almost a third; you read that correctly.) Eighty-five percent of those children were placed in non-Indian homes. ICWA’s constitutionality is now being challenged in a lawsuit brought by Texas, Indiana, Louisiana and various individual plaintiffs. It is the first time a state has sued the federal government over ICWA’s constitutionality.

If ICWA is overturned, a “slew of laws that rest on a centuries-long precedent of tribal sovereignty could be in jeopardy,” as a recent Politico piece put it. Those who support the attack on ICWA would love for all of us to believe that the debate in the Supreme Court over Indian identity is about the protection of Native children. They’d like us to believe that they have the best interests of Indian children at heart. Just like boarding schools were a tactic to demolish the foundation of tribes, assimilate us and destroy any obligation the federal government had to us, the push to overturn ICWA has the same aim ― except this time, the mission is much more insidious.

Scholars and journalists investigating the issues have made it clear that this is part of a plan to build and reclaim conservative power across the United States. All of our futures are at stake, because at the heart of this case are Gibson Dunn, the Goldwater Institute and the Bradley Foundation ― the same set of political players and funders that have brought forward policies that attack our democracy, LGBTQ rights, and the teaching of Juneteenth, Black history and critical race theory, and are among those who defended the Keystone XL pipeline.

But, you might be wondering, how could a child welfare case threaten to topple tribal sovereignty? And what’s behind it? In short, it’s the same thing that threatens us all: a small group of people hoarding resources and power to ensure they keep their unearned privilege ― aka white supremacy.

Left: Navajo tribal leader Paul Jones, at right, talks to oil workers on a Navajo reservation. Photo by Carl Iwasaki/Getty Images. Right: a Navajo mine, Feb. 28, 1973. Credit: Denver Post via Getty Images.
Left: Navajo tribal leader Paul Jones, at right, talks to oil workers on a Navajo reservation. Photo by Carl Iwasaki/Getty Images. Right: a Navajo mine, Feb. 28, 1973. Credit: Denver Post via Getty Images.
Getty Images

“In the United States, there are two corporate law firms that represent the oil industry more than anyone else,” investigative journalist Rebecca Nagle, a citizen of the Cherokee Nation, said on the podcast “This Land.”

“One of those firms doesn’t just represent companies like Chevron,” Nagle said. “They work for every corner of the industry: pipelines, trade organizations, lobbying groups ― you name it. And that firm is now representing the Brackeens in their big federal lawsuit.”

According to Nagle, tribes have jurisdiction over about 2% of the land in the United States, but that land holds minerals, coal, timber, natural gas and oil worth some $1.5 trillion. In the land over which tribes have jurisdiction lie about a third of all the fossil fuel resources in the country. A direct attack on Indian gaming and resources might be too obvious, but setting a precedent in the field of child welfare could have a domino effect on every area of Indian law, including gaming and natural resources.

ICWA rests upon the legal authority of tribes to determine who is a citizen or descendant and who isn’t. It takes into account the historical harm done to tribes and tribal communities as a function of racist child welfare policies.

The case from plaintiffs Chad and Jennifer Brackeen, who are not Native, argues that ICWA ― which only allows Native children to live with non-Native foster parents if a tribal family is not available ― is a form of racial segregation. Their case ignores tribes entirely, and argues that our youngest tribal citizens are “barely native.”

In reality, our citizenship in tribal nations ought to be thought of similarly to how you might view citizenship in any other nation in the world. The definition of who is considered to be “American Indian/Alaska Native,” a definition that’s been upheld by Congress and the Supreme Court, has been legally and inextricably linked to tribes. But here, the Brackeens and their team are attempting to racialize it.

It’s like the polar opposite of the one-drop rule, a (somewhat) obsolete social and legal principle of racial classification prominent in 20th-century America. It asserted that if a person had any trace of Black ancestry in their family tree ― “one drop” of Black blood in their veins ― they could be considered Black. In this case, a similar rule is being used in the opposite way, for the same ends: to diminish the power of a community of color while reinforcing white supremacist goals. Basically, they are saying that our “one drop” doesn’t matter.

According to many elected tribal leaders, scholars, journalists and legal experts, the real aim of this case, and those behind it, is to push conservative agendas throughout the United States. They want to test their political theories in a field that lacks visibility, when and where they think no one will be looking. And if they’re successful in their attack here, they’ll move to the next target. If they are successful in clearing the path to natural resource extraction, fracking, oil, mining and deforestation, the impact on tribes and our children will simply be collateral damage.

Two children walk together in a protest encampment near Cannon Ball, North Dakota, where protesters have gathered to voice their opposition to the Dakota Access Pipeline, Sept. 3, 2016.
Two children walk together in a protest encampment near Cannon Ball, North Dakota, where protesters have gathered to voice their opposition to the Dakota Access Pipeline, Sept. 3, 2016.
ROBYN BECK via AFP via Getty Images

Since 1492, there has been a debate over who the indigenous people are in what’s currently known as the United States. It is a debate that sprawls across the disciplines of law, sociology, anthropology, education, international politics, history and geography.

For tribal people, our identity also works to determine the future of Indian Country ― and what the citizenry of tribes will look like 10, 20 and 500 years from now. Identity lies at the crossroads where the personal meets the collective, and the strength, health and well-being of families connect with communities and nations. In Indian Country, identity is intimately connected to nationhood and sovereignty as well as personhood ― the sense of where one comes from and who one is.

Most people should know that in the creation of the United States, the federal government signed more than 300 treaties with tribal nations. Tribes ceded nearly 2 million acres and control over natural resources ― if, and only if, the U.S. upheld its treaties. It’s the same constitutional process we use to sign treaties with other nations like Mexico and France. But treaties are not just between tribal nations and the government; they are between you and me. They are between all of us. We all have responsibilities to uphold them. How are we doing our work and organizing in ways that respect and uphold these agreements? If you’re not doing this, chances are you are working to ignore and undermine them. On this issue, there is no middle ground.

I’ll leave you with one last thought. You may not be an LGBTQ or transgender justice activist ― but I don’t care. Get involved with transgender rights. You may not think that what’s been happening with undocumented families will affect you. You’re wrong. You may not have kids or understand the fight in education about critical race theory. Get involved anyway. Get involved with something. Be an unlikely ally. Throw your money and power behind causes you believe in.

In the wake of the overthrow of Roe, my friend and colleague Sandy Chung, director of the American Civil Liberties Union of Oregon, said it best: “Don’t assume your community is free right now because you haven’t been targeted yet. Nobody’s free until everybody’s free ― because they’re coming after all of us.”

If you want to support the fight to protect ICWA, you can give today to any of the four national Native organizations that make up the Protect ICWA Campaign: the National Indian Child Welfare Association, the National Congress of American Indians, the Association on American Indian Affairs and the Native American Rights Fund. The campaign aims to serve and support Native children, youth and families through upholding the Indian Child Welfare Act. It works to inform policy, legal and communications strategies with the mission to uphold and protect ICWA.

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