“For Indian country, it is maybe one of the most important cases that has ever gone before the Supreme Court” | The case that seeks to strike down the Indian Child Welfare Act is about colonialism

 NOVEMBER 5, 2022  THE HILL

Supreme Court’s ‘sleeper’ case is major clash over Native American adoptions

by John Kruzel  

The Supreme Court heard a dispute over a
longstanding federal law that gives preference to Native American
families and tribes over non-Native couples when deciding where to place
Native children in custody proceedings.

Although overshadowed by the court’s more politically charged cases,
legal experts say the dispute could prove hugely consequential for
Native American rights and tribal sovereignty.

“It is a sleeper case,” said Mary Kathryn Nagle, a Native rights attorney who filed an amicus brief in the case. “For Indian country, it is maybe one of the most important cases that has ever gone before the Supreme Court.”

The dispute tees up questions about whether the Indian Child Welfare
Act (ICWA) unlawfully imposes race-based preferences when placing Native
children, and if the law amounts to excessive federal overreach into
state adoption policy.

The case plays out against the uniquely troubling history of
mistreatment suffered by the country’s Indigenous population, including
the once-common practice of separating Native American children from
their families and tribes, which the ICWA was designed to combat.

The Supreme Court looked very different when it last confronted a major ICWA question in
2013 and counted the late Justices Antonin Scalia and Ruth Bader
Ginsburg among its members. Although the court now has a solid 6-3
conservative majority, some court watchers believe the current ICWA case
could produce a split among the court’s conservatives.

The complex dispute to be heard Wednesday began when three white
couples who sought to adopt Indian children sued the federal government
over ICWA. Later, additional plaintiffs including the state of Texas
joined the case, and several Indian tribes intervened to support ICWA.

Texas and the other challengers claim, among other things, that the
law’s provision giving preference to Native American adoptive parents
over non-Native parents violates the Equal Protection Clause of the 14th
Amendment.

“A classic example of so-called ‘benign’ discrimination, ICWA creates
a government-imposed and government-funded discriminatory regime
sorting children, their biological parents, and potential non-Indian
adoptive parents based on race and ancestry,” Texas wrote in court
papers.

“Because this Court has recognized that ‘the way to stop
discrimination on the basis of race is to stop discriminating on the
basis of race,’ such methods violate equal protection.”

ICWA’s passage arose in response to the frequent separation of Native
children from their families and communities by state child welfare and
private adoption agencies.

According to research conducted around the time
of ICWA’s passage in 1978, around 25 to 35 percent of all Native
children were removed from their families and placed either into foster
homes or with adoptive families or other institutions. Among Indian
children in foster care, roughly 85 percent were in non-Native homes,
according to a 1969 survey of 16 states.

“This law was passed against a very disturbing and tragic history of
the wholesale removal of Indian children from families to assimilate
them into white culture based on prejudice about Indian culture,” said
frequent Supreme Court litigator Lisa Blatt at a recent legal forum.
Blatt argued the 2013 ICWA case on behalf of a non-Native adoptive
couple. 

“It started with the Bureau of Indian Affairs putting all these kids
in horrendous boarding schools, and then it then transitioned to the
‘60s and ‘70s to state custody removal proceedings,” said Blatt, a
partner at the law firm Williams & Connolly.

In practice, ICWA requires that Indian children be placed with
members of their extended family or tribe, or other Native American
families before outside candidates may be considered.

Ben Kappelman, a partner at the law firm Dorsey & Whitney who has
provided pro bono services to a Minnesota Indian tribe in child welfare
proceedings, touted the law as a success.

“ICWA, considered the gold standard in child welfare policy,
establishes priority for caregivers of Native American children whose
parents cannot care for them,” he said.

Supporters of the law say the ugly history that led up to its
enactment underscores the enduring need for protections for Indian
children and families’ culture.

“ICWA is based on a simple idea: When Indian children can stay with
their families and communities, Tribes and children alike are better
off,” the tribes wrote in court papers. “By implementing that simple
idea, ICWA ‘promotes the stability and security of Indian tribes and
families’ and ‘protects the best interests of Indian children.’”

The Justice Department, on behalf of the Biden administration, is arguing in support of ICWA.

The case has the potential to create a split among the court’s
conservatives, some experts say. Blatt, of the firm Williams &
Connolly, noted that Justice Neil Gorsuch, a Trump appointee, has
“consistently ruled” in favor of tribal rights and law.

“I think the assumption is that the United States that’s defending
the law with the support of the tribes, has at least four votes,
assuming they have Gorsuch’s vote,” she said. “And that leaves the
challengers needing to pick up both Justice [Brett] Kavanaugh and
Justice [Amy Coney] Barrett.”

A decision in the cases, Haaland v. Brackeen, is expected by summer 2023.

👇👇👇

When You Take Away the Kids, You Take Away the Future

The case that seeks to strike down the Indian Child Welfare Act is about colonialism, not civil rights.

 LISTEN:

 

Reclaim your name

 [This needs to be universal, and in America, too... Editor]

Manitoba bill would help ensure birth certificates reflect Indigenous names

By The Canadian Press | Nov. 17, 2022

WINNIPEG
- The Manitoba government is moving to ensure birth certificates can
better represent the names of Indigenous people and those of other
cultures.

A
bill now before the legislature would establish a wider range of
letters, characters and symbols beyond the traditional ones found in the
English and French languages.

The bill would also allow for single names, instead of first and last ones, in accordance with cultural practices.

Government
Services Minister Reg Helwer says the change will meet the needs of
residential school and ’60s Scoop survivors who want to reclaim their
birth names.

He says it will also serve Indigenous and other families who give their children traditional names connected to their culture.

The proposed changes would apply to name registrations for newborns and for people applying to legally change their names.

“Throughout
the residential school period, it was common for institutions to rename
children when they were enrolled, erasing traditional Indigenous names
to cut the ties a child had with their cultural identity and family,”
Indigenous Reconciliation Minister Alan Lagimodiere said in a press
release Thursday.

“The
Truth and Reconciliation Commission of Canada called upon governments
to enable survivors to reclaim their birth names. This change would
allow us to take the first step toward implementing call to action
Number 17.“

This report by The Canadian Press was first published Nov. 17, 2022.

 👇

Recognizing that Indigenous parents should have a right to name their
children according to the languages their ancestors carried for
millennia means treating them like human beings.

Reconciliation is more than that. - READ

 

This Supreme Court Case Is a Case Study in Conservative Hypocrisy

Just
weeks after railing against race-conscious college admissions, the
justices entertained a bogus race-based argument aimed at undermining
Native sovereignty.

By Elie Mystal

There is a deep irony to this claim by white families,
who are in essence the beneficiaries of centuries of theft,
discrimination, and outright genocide of Native peoples, that they are
the victims of a law preventing them from claiming Native children
against the will of tribal governments.  More to the point, this case
should not turn on the race of the families involved in the dispute
because, from the perspective of ICWA, race is irrelevant.

READ 

**

Supreme Court could decide where Native American foster kids in Michigan live

“It’s causing a lot of confusion, and tribal communities feel as if rights are being taken away from them,” Kate Fort said.

If the act is found unconstitutional, this could enable other groups
to question more of tribal communities’ sovereignty because they would
be designated as a racial group, not a political entity, Fort said. This
is especially problematic because not everyone who lives in a tribal
community is racially Native.

“Tribal sovereignty exists whether or not the Supreme Court
recognizes it,” Fort said. “If the ruling is overturned, the trust
between tribes and the U.S. government will be eroded.” READ

 

**

 

 

The Supreme Court Case That Could Wipe Out Indigenous Sovereignty In The USA...

Rebecca Nagle is INCREDIBLE! We love her!  #ProudtoProtectICWA

Nov 27, 2022 | MSNBC

The Supreme Court is hearing arguments in a high-stakes case about indigenous children and culture.  On the surface, the case known as Brackeen v. Haaland revolves around a dispute over whether a non-native family can adopt a native baby. At the heart of the case is the Indian Child Welfare Act, a law passed in 1978 that says if a state determines a Native child must be legally removed from their home, they must be placed with an American Indian family or, if possible, a member of the child’s extended family or tribe. Non-native families and states are challenging the constitutionality of ICWA, arguing it discriminates on the basis of race. But the case could have implications that extend far beyond that - potentially upending Native sovereignty altogether. “A lot of laws flow from this special nation-to-nation relationship between tribes and the US federal government,” says Cherokee Nation journalist Rebecca Nagle. “And the fear is that because the plaintiffs are making such broad and sweeping arguments in Brackeen, (if the court strikes down ICWA) they could turn all of that – literally centuries of laws – on their head.”

White Christians Are Still Taking Native Children

11/29/2022 by

Carrie N. Baker

The Brackeen case is one of many lawsuits by conservative legal
groups to weaponize constitutional equality protections against people
of color to the advantage of white people. 

Rosa
Alvarez, a Yaqui Indian Native American, was protected under Indian
Child Welfare Act, passed by Congress in 1978 to help keep Native
American children close to their families and traditional heritage.
(Joshua Lott / The Washington Post via Getty Images)

This article originally appeared in the Daily Hampshire Gazette.

On Nov. 9, the U.S. Supreme Court heard oral arguments in a case, Haaland v. Brackeen, challenging the constitutionality of the 1978 Indian Child Welfare Act (ICWA). The act gives a preference for Native American
people to foster and adopt Native American children. The lead
plaintiffs are a well-to-do white, evangelical Texan couple, Chad and
Jennifer Brackeen, who are seeking to adopt a Navaho girl against the
wishes of her relatives, who want to adopt her themselves. Among other
arguments, the Brackeens allege reverse racism—that the law discriminates against them based on their race in violation of the equality guarantees of the U.S. Constitution. 

This case is just the most recent chapter in a long history of white
people taking Native children from their parents, tribes and cultures.

Beginning in the late 19th century, the U.S. government set up an extensive system of boarding schools for Native children
designed to assimilate them by eliminating traditional Native American
ways of life and replacing them with mainstream American culture. Many
were run by Christian missionaries.

The federal government forced Native families to send their children
to these schools, often far from home and for many years. The white
people running these schools forbid the children from speaking their
Native languages, gave them English names, forced them to cut their hair
and give up their traditional clothes, and coercively replaced their
own traditional religious practices with Christianity. The schools were
run like military schools, where children had to wear uniforms, march in
formations, and adhere to strict rules or face harsh discipline.

The boarding schools taught Native children that their cultures were
inferior, with some teachers ridiculing and making fun of the students’
traditions. These lessons taught the children to be ashamed of being
Native American. A recent Interior Department report found “rampant physical, sexual, and emotional abuse; disease; malnourishment; overcrowding; and lack of health care in [the] boarding schools.” 

In the 1970s, in response to continuing high rates of public and
private agencies removing Native American and Alaska Native children
from their homes, Congress passed ICWA. The law requires states to
notify tribes before placing a Native American child for adoption and to
prioritize placement of children with their extended family, members of
their tribe, or other Native American families. 

ICWA advocates supported the law as a way to preserve Native American
families, traditions and cultures and counter the widespread assumption
that white parents are best for all children. Advocates also argued
that the ICWA protects tribal sovereignty by granting tribal nations
“exclusive jurisdiction” over their enrolled members and their
lands—removing control from federal or state governments and private
Christian organizations. 

The lawsuit against the ICWA, brought by the Brackeens, the state of
Texas, and three other white couples seeking to take Native children
from tribes, could be just the first step to reduce tribal sovereignty
and nationhood, creating opportunities for white people to take tribal
land and resources as well as children.

It’s not surprising that the plaintiffs in the current case are
represented for free by Gibson Dunn, a high-powered law firm that has represented oil and gas companies.
One of their previous clients was Energy Transfer and Enbridge, a
company responsible for the Dakota Access and Line 3 pipelines. This
firm also has clients in the gambling sector. Eroding tribal sovereignty would threaten tribal rights over valuable resources such as mineral rights and gaming operations.

The
Lakota People’s Law Project urges in this graphic for readers to fight
to uphold the ICWA and protect Native self-determination.
(Lakota Law)

More generally, the Brackeen lawsuit is part of a series of lawsuits
brought by conservative legal groups and lawyers to weaponize
constitutional equality protections against people of color to the
advantage of white people. 

Last month in an affirmative action case,
the Supreme Court appeared ready to eliminate the ability of schools to
promote the admission of historically disadvantaged students, using
reasoning similar to that used by the ICWA case plaintiffs. Republican
members of the Court made comments indicating that they believed the
14th Amendment equal protection guarantee—adopted after the Civil War to
protect Black people—does not allow any law designed to address
longstanding and harmful race discrimination against people of color. 

By advocating for “color blind” applications of the law, the Court
would allow white people with greater access to resources and power to
take money, land, and even children from communities of color—all in the
name of equality. In the ICWA lawsuit, the equality guarantees adopted
to protect Black people from the violence and discrimination of white
people may now be used by white Christians to continue their
long-standing practice of removing Native children from their tribes and
cultures—and eradicating their religious practices.

The Brackeen case is a shameful display of the ongoing white
supremacist settler colonial project in American society. All people
must speak out against this centuries-old genocidal behavior against
Native Americans that continues to this day.

Archbishop Justin Welby apologises for "building hell, putting children into it and staffing it"

REBLOG from May 4, 2022

Readers are advised this story mentions the physical and sexual
abuse of Indigenous children in institutions. There are no graphic
accounts included, but the subject matter may be triggering for some
people. 

Archbishop of Canterbury Justin Welby delivered an unequivocal
apology to children, grandchildren and survivors of Canadian residential
schools over the weekend, describing their experiences as “a bit of
hell” that was “built by the Church and in the name of the Church.”

The Anglican Church leader met with dignitaries from Indigenous
governments from James Smith Cree Nation and the Federation of Sovereign
Indigenous Nations, which represents 74 First Nations in Saskatchewan.
There, he heard the stories of school survivors about how the
residential school system ripped families apart, raised self-doubt and
self-confidence issues and left them with traumas as a result of sexual
and physical abuse.

“It is the rawest, wickedest, most terrible thing, to molest a child
while you read them the Bible,” a sombre Welby told the group after
hearing the harrowing accounts.

KEEP READING 

Archbishop of Canterbury apologizes for church's role residential schools - APTN News

 

Somewhere, there are records and I want them. They’re mine.

 

sample of 2022 adoption bingo card

Loved this article by an adoptee

22
Nov

“Here we go again.

Those four words pop into my mind every November, like an annual calendar reminder set to go off with a cartoon “boing.”

November is National Adoption Month, and as an adopted person you
might think we’re all a bundle of anticipatory excitement, planning the
kegger and booking the cover band.”

For example, I’ve been on a 30-year mission to obtain every page of my medical, adoption, foster care and genealogical records.

I’ve had some success at this mostly because I haven’t stopped asking after being told no.

 

Mardi Link: Happy National Adoption Month

My Navajo identity was taken from me

 SOURCE

Opinion: I’m a Jersey girl born into the Salt Clan. My Navajo identity was taken from me

Opinion by Hilary Tompkins

November 21, 2022

Editor’s Note: Hilary C. Tompkins, a member of the Navajo
Nation, served as the Solicitor of the US Department of the Interior
during the Obama administration. She currently practices law in
Washington, DC. The views expressed in this piece are her own. Read more opinion at CNN.

CNN
 — 

My adoption papers said my mother was “very attractive” and that
my “grandmother has some education and is considered to be an
intelligent woman.” My father, who was listed as “Plains,” was described as having “hair with a slight tendency to wave.”

These small nuggets of information from my adoption papers were my
only connection to my birth family. Only much later in life, as a young
adult taking Native American studies at Dartmouth College, did I learn
that I also had a legal connection with the Navajo Nation as a citizen
of the Tribe.

Hilary Tompkins

I’m like many Native Americans who were placed in White families under the Department of the Interior’s Indian Adoption Project in the 1960s and 1970s.

As with the placements of Indian children in boarding schools,
this program removed Native children from their Tribes without
justification and assimilated them into mainstream America. When I met
my birth family as a young adult, one of my aunts held me and cried,
saying the last time she held me I was a baby and she had told the
hospital officials that she and my extended family would take care of
me, but to no avail. I was taken away and put up for adoption anyway.

Recognizing that the continued existence of Tribal Nations was at stake because of the loss of up to 35% of their children, Congress outlawed this practice in 1978 with the passage of the Indian Child Welfare Act (ICWA). At the time, placement with White families was estimated to be at 90%.

Earlier this month, the US Supreme Court held oral arguments in a closely watched case, Haaland v. Brackeen,
to decide whether the Indian Child Welfare Act is unconstitutional
because it favors the adoption of Native children by Native families.

The states of Texas, Louisiana and Indiana, along with non-Native
parents seeking to adopt Native children, say that ICWA amounts to
racial discrimination because it has nothing to do with the “ability of
Indians to govern themselves.” They argue that the states and non-Native
parents should be able to decide the placement of Native children free
of consideration of their tribal status because there is no political
interest of the Tribes at stake.

And opponents of the Indian Child Welfare Act even go a step
further, saying that the law goes against the best interests of Native
children by imposing standards that make it harder for them to be
adopted into stable, loving homes.

As a Native person who was adopted into a White family before the
implementation of ICWA, that’s not the way I see it. I can attest
firsthand, as a citizen of both the United States and the Navajo Nation,
that ICWA is not about race.

I grew up in southern New Jersey, but I always knew I was Navajo.
Born in Zuni Pueblo, New Mexico, I was separated from my family with
only a few papers as evidence of my Tribal status.

By all outward appearances, my life today gives the impression that the Indian Adoption Project
was a success. I was placed in a family that loved me. I received an
exemplary education. I live a comfortable, middle class life. I have
enjoyed professional success, having served as Solicitor of the
Department of the Interior, the third ranking position in the department
– the very federal agency that set my course in life. Yet despite these
blessings, the Indian Adoption Project left me adrift, a foreigner in
my own country.

Upon my return to the Navajo Nation almost 30 years ago, my sense of loss was overwhelming. The Navajo Nation
is a different world: Navajo is frequently spoken there and the laws
and way of living are based on Navajo traditions. There is no separation
of Navajo spirituality from Navajo sovereignty. One foundational
principle is ke’ – kinship
– which is rooted in a vast clan system. I didn’t know my clan and
couldn’t speak the language. Nor did I understand the complex and
traditional laws of Navajo society. The loss of my culture was not just
personal, but political.

I tried to make up for my losses, learning some of the language,
attending our traditional ceremonies and working for the Navajo Nation
Department of Justice. But despite my best efforts, I couldn’t catch up.
I can vote in our elections but I don’t understand the stump speeches. I
can’t run for office as I am not a fluent Navajo speaker. I reconnected
with my birth family, but I have never felt fully integrated into
Navajo society.

Should Native Americans get preference over White people in adopting Native children? The Supreme Court may decide

ICWA recognized that in order to have functioning tribal
governments, you need the next generation of tribal citizens to be part
of tribal political society. Taking away Native children threatens
tribes’ future because the loss of their kids jeopardizes Tribes’
ability to be political sovereign entities. The law gives a preference
for placing a Native child with extended family members, members of its
Tribe or members of another Tribe – a priority that can make it harder
for a White family to adopt. It requires state courts to notify the
Tribe about the child, and to have them indicate the preferred placement
– or to say placement with a particular non-Native family is okay.

During oral arguments
earlier this month, two of the justices indicated that they understood
how high the stakes are for Tribal Nations. Justice Neil Gorsuch observed
during oral arguments that in passing the law, Congress understood that
ICWA is “essential to [the] self-preservation of Indian tribes.” And
Justice Kagan recognized
that “the political entity is itself being threatened because of the
way decisions on the placement of children are being made.”

If ICWA had been in place when I was adopted, my Tribe would have
been involved in my adoption. Navajo tribal authorities would have had a
say in my adoption had I been adopted under the provisions of the law. I
could have maintained a connection with my relatives – even if I had
ended up with White parents. I still could have been adopted by a
non-Native family, but my adoptive family might have been able to
connect with my extended family or others, fostering a connection with
my Tribe. But because I was placed for adoption prior to the existence
of ICWA, I had to reclaim my connection with my Tribe all on my own.

My family and I eventually found each other by serendipity when I
was living on the Navajo reservation. In middle age, I have come to
accept who I am – a Jersey girl born into the Salt Clan. I have overcome
the pain and loss. But I wouldn’t wish my experience on the children of
Tribal citizens today. We cannot fail Native children again as we have
failed them in the past.

Native children deserve the opportunity to be citizens of both the
United States and Tribal Nations. I pray that they will not be the
subject of another social experiment based on the decisions of
government officials who haven’t walked in the shoes of the First
Americans.

How did we get here? (with some humor)

In this week's segment of How Did We Get Here, we are talking about Native American heritage. HINT: Erasure is the reason you don't know much about it and it's F'd up!! #AmberRuffinShow pic.twitter.com/zTya9tMmwR

— amber ruffin (@ambermruffin) November 12, 2022

 

WHY ICWA MATTERS? Land Theft? Child Trafficking? Cultural Genocide? Horrible Adoption Outcomes? Loss of everything?

Yup.

Harvard Museum Says It Has Hair Clippings from 700 Native Children Who Attended Indian Boarding Schools

• SOURCE
  

Harvard's Peabody Museum (Photo: Public domain)

By Jenna Kunze

November 10, 2022

**This story contains
disturbing details from U.S. Indian Boarding Schools. For support and
mental health resources, visit The Native American Boarding School
Healing Coalition’s list of resources.** 

Harvard’s Peabody Museum has hair clippings taken from the heads of
about 700 Native American children while they were attending U.S. Indian
Boarding Schools, the institution announced this morning.

The clippings from Native children are part of a collection that
includes 1,500 total hair samples from people across Asia, Central
America, North America, Oceania, and South America. It was assembled by
anthropologist and former Harvard professor, George Woodbury, between
1930 and 1933.  Woodbury took “the vast majority” of samples from living
people across the world to study racial hierarchies, The Peabody Museum wrote online.

Woodbury obtained the samples by enlisting the help of “other
anthropologists and archaeologists, as well as administrators at a wide
variety of U.S. Indian reservations, U.S. Indian boarding schools, and
Canadian hospitals as well as missionaries worldwide,” Harvard wrote in
an online statement published at 9am on Nov. 10. The collection was donated to Harvard and accessioned in 1935.

According to Harvard University spokesperson Rachael Dane, when the
Peabody began organizing its collections in a database in 2008, the
location of the Woodbury collection was marked ‘unknown.’ In April 2022,
Peabody Museum staff cataloged the Woodbury Collection and determined
its contents. 

Many of the samples have the names of the children whose hair was taken, as well as their tribal affiliation.  Approximately 300 tribal nations had samples taken from their kids from at least 21 boarding school locations, plus an additional 12 “collecting locations” noted by Harvard.  The most samples, records show, were taken from 138 children at The
Fort Totten Indian School in North Dakota, and 122 children at the
Sherman Institute in Riverside, California.

“I just cannot for the life of me wrap my head around something like
that,” Rosebud Indian Reservation’s Tribal Historic Preservation Officer
Ione Quigley told Native News Online. She learned that hair
samples were taken from her relatives in an email that came through from
Harvard late Monday evening, she said. “Why would somebody want hair
samples … from little ones? That's a human remain that, for us, holds so
much sacredness.”

Harvard says it will return all of the hair samples, and that it
contacted tribal chairs and tribal historic preservation officers by
email to let them know about the samples, though it “did not have all
the emails,” Dane told Native News Online.

“The Peabody Museum apologizes to Indigenous families and tribal
nations for our complicity in the objectification of Native peoples and
for our more than 80-year possession of hair taken from their
relatives,” the museum’s website reads.

Nowhere does Harvard acknowledge that it likely broke a federal law
that’s been in place since the ‘90s, the Native American Graves
Protection and Repatration Act. Under NAGPRA, institutions are required
to catalog and return their collections of Native American human remains
and their burial objects. Human remains are defined by law as “The
physical remains of the body of a person of Native American ancestry.”
The term excludes remains or portions of remains “that may reasonably be
determined to have been freely given or naturally shed by the
individual from whose body they were obtained, such as hair made into
ropes or nets.”

This year alone, at least three institutions have completed
reparations of human hair to Native tribes or Native Hawaiian
Organizations, according to federal register notices. But Dane told Native News Online
that, “the Peabody Museum understands that this type of hair sample,
which can be found in many museums and federal agencies, is not subject
to NAGPRA.”

“I don’t see how they could argue that [collecting hair samples from
children can be done with] consent,” Association on American Indian
Affairs chief Executive and attorney Shannon O’Loughlin (Choctaw) told Native News Online.
“Human hair is considered remains that require inventory and
consultation. My first reaction, because there was hair from a Choctaw
child included in there, is…what in the world? How did they not know
this existed for so long? It’s so disappointing to see Harvard just not
getting how to work with Native Nations.”

O’Loughlin said that the Association intends to hold Harvard
accountable for requesting proper tribal consultation, instead of merely
asking tribal representatives to fill out a contact form online to be notified when further information on return “becomes available.”

From from 1819 to 1969, the federal government operated more that 400
Indian boarding schools where Native kids were forced to attend with
the express purpose of cultural assimilation that coincided with Indian
territorial dispossession. At these institutions, the government
employed “systematic militarized and identity-alteration methodologies”
to assimilate Native children through renaming them, banning the use of
their language, and cutting their hair, a federal investigation into the government’s role in the schools released in May 2022 noted.

Quigley, the Rosebud tribal preservation officer, is a boarding
school survivor from St. Francis Indian School on the Rosebud Indian
Reservation.  She can attest to the lack of consent in Native kids
having their hair cut at boarding schools—she lived through it. When she
arrived at St. Francis Indian School as a sixth grader, nuns forcibly
cut her hair.

“It was very very traumatic for me to have my hair cut like that,”
Quigley said. “No affection, no care, nothing. There’s something really
wrong in that.”

“Does it seem reasonable to you that this hair was freely given or
naturally shed?” Melanie O’Brien, who manages the National NAGPRA
Program, wrote in response to questions from Native News Online. “That is the ONLY exception to human remains under NAGPRA.”

O’Brien said that she can’t say if Harvard has failed to comply with NAGPRA unless any person alleges it, and the Department of the Interior investigates it. 

“If this were determined to be a failure to comply with NAGPRA
because these human remains were not reported in an inventory, the
penalty amount would be $7,475 times the number of lineal descendants,
Indian Tribes, or NHOs involved,” she wrote. If Harvard were found to be
out of compliance with NAGPRA for its collection of inventoried 700
hair samples, it would owe more than $5 million.

Harvard University has one of the largest collections of Native
American human remains in the country, according to the inventory it did
report in the 90s. Currently, the institution holds at least 6,162 ancestors.
Harvard received five federal grants totaling $287,430 from 1994 to
1997 to complete its inventory. It also received two extensions to
complete their inventory in 1998 and 2000, public records show.  

This is a developing story.

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Haaland v. Brackeen: The Case that Could Break Native Sovereignty

Why ICWA Matters

Breaking News


tags:
Supreme Court, Native American history, Tribal Sovereignty, Haaland v. Brackeen, Indian Child Welfare Act










by Rebecca Nagle

Rebecca Nagle is a journalist based in Tahlequah, Oklahoma. Her podcast, This Land, won the American Mosaic Journalism Prize in 2020.

Every generation of Americans has seen an effort to undermine
Indigenous sovereignty. The latest attempt heads to the Supreme Court
tomorrow.

In the sprawling federal lawsuit Haaland v. Brackeen, a
handful of white foster parents, among other plaintiffs, are asking the
Supreme Court to overturn a law called the Indian Child Welfare Act.
ICWA was created in 1978 to prevent family separation in Native
communities. When the law passed, about a third of Native children had been removed from their families. But in the lawsuit, far more than the future of Native children is at stake.

When a Native child is up for adoption, ICWA prioritizes placing that
child first with relatives, then other members of their tribe, and then
other Native families. These placement preferences, the non-Native
foster parents claim, give them “fourth-tier status.” Their pro bono lawyer Matthew McGill told the Fifth Circuit that
this was all because “they are not and cannot be, because of their
race, Indian families.” (Notably, in two of the three underlying custody
cases, the non-Native foster parents won custody—when blood relatives
also wanted to raise the children.) Citing the equal-protection clause
of the Fourteenth Amendment, the plaintiffs claim that ICWA violates
their constitutional rights by discriminating against them.

What makes the case tricky is that many people in the United States
think of Native Americans as a racial group. But that is not how
American law works. Under federal law, tribes and tribal citizens are
not a racial group, but a political one.  Accordingly, ICWA applies only
to Native children who either are enrolled in a federally recognized
tribe or are eligible based on a given tribe’s citizenship requirements.
Just as certain laws apply to me because I am a citizen of the United
States or a resident of Oklahoma, certain laws apply to me because I’m a
citizen of the Cherokee Nation. Those laws flow from the treaties
signed between my sovereign Indigenous nation and the United States,
established through the same constitutional process the U.S. uses to
sign treaties with Britain or Japan.

A host of federal statutes—including on land rights, water rights,
health care, gaming, criminal and civil jurisdiction, and tribal
self-governance—treat Native Americans differently based on this
political classification. In this light, I fear that the Brackeen lawsuit is the first in a row of dominoes—if the Court strikes down ICWA, everything else could soon go with it.

If ICWA is unconstitutional because it is based on race, then what of
the clinic where I get my health care that serves only tribal citizens?
If ICWA discriminates against non-Native foster parents, what of gaming
regulations that allow tribes to operate casinos where non-Native
casino developers can’t?  What “racial group” in the United States has
their own police forces, courts, elections, governments, and lands, as
tribes do?  The possible shift is radical.  The U.S. has been passing laws
that treat tribes and tribal citizens differently from non-Native
citizens since the founding of the republic.  If that is
unconstitutional, the entire legal structure defending the legal rights
of Indigenous nations could crumble.

KEEP READING

ICT: Indigenous people flock to DC for ICWA hearing

 ‘If you take our children, you take our identity’

Approximately 60 stood in line waiting to sit inside the court to
witness the oral arguments. Many sat between the Capitol and court
listening to three hours of oral arguments on their headphones, and
others listened to the line of speakers and songs all morning and into
midday.

Haaland v. Brackeen challenges the Indian Child
Welfare Act, a law that has been referred to as the “gold standard” for
child welfare by many child welfare organizations. It was enacted in
1978 to “halt the unnecessary forced removal of Native kids from their
families,” said Sarah Kastelic, an enrolled citizen of the Native
Village of Ouzinkie and executive director of the National Indian Child Welfare Association.

Sarah
Kastelic, executive director of the National Indian Child Welfare
Association and an enrolled citizen of the Native Village of Ouzinkie,
stands outside the U.S. Supreme Court with a sign in her language in
Washington, D.C., on November 9, 2022. (Photo by Jourdan Bennett-Begaye,
ICT)

“So in our organization,
one of the things that we talk about is the recipe for colonization,”
Kastelic said. This recipe is “consistently followed by colonizers to
colonize Indigenous people.”

She said there are five ingredients:

1. “Take the land;”
2. “Control the natural resources, especially the water;”
3. “Usurp, replace Indigenous governance to delegitimize Indigenous thought;”
4. “Undermine Native worldview, values, traditions, beliefs;” and

And
number five, “the most important ingredient,” she says, is to “sever
Native children from their sense of identity, from their culture, from
their sense of belonging, from that sense of connectedness to
something.”

This would meet the United Nations definition of genocide.

KEEP READING 

** BEST QUOTE

NATIVE AMERICA CALLING:

The fate of ICWA

November 10, 2022 By Art Hughes 

 

Podcast: Play in new window | Download (Duration: 55:44 — 38.3MB) | Embed

Each side presented their oral arguments Wednesday to the U.S.
Supreme Court for the most serious challenge to the Indian Child Welfare
Act in recent memory. The decision in Haaland v. Brackeen will be a major force in the future of ICWA and the scope of tribal sovereignty. Today on Native America Calling, Shawn Spruce analyzes the legal debate from a Native perspective with Matthew Fletcher (Grand Traverse Band of Ottawa and Chippewa Indians), law professor at the University of Michigan Law School and author of the Turtle Talk blog; independent journalist Suzette Brewer (citizen of the Cherokee Nation); and Dr. Sarah Kastelic (Alutiiq), director of the National Indian Child Welfare Association.

 

Full Brackeen Indian Child Welfare Act oral arguments  (Indigenous Wire)

Oral arguments in Haaland v. Brackeen, a U.S. Supreme Court case that will decide whether the Indian Child Welfare Act (ICWA) of 1978
is constitutional and/or will be altered in any way, were heard
yesterday. Books will likely be written about this law and the case —
and their impact on tribal sovereignty — and we’ll be featuring much
more about the issues at stake in days to come.

For those so inclined, take a listen to the 3-hour oral arguments, which are online here. Transcript here.

Of
note: Not a single lawyer arguing the case in court yesterday were
Indigenous, although Natives with Jenner & Block and the Native
American Rights Fund did help prep for the case. A Native has never
served on the U.S. Supreme Court, and the high court usually decides
several cases each term that impact tribes and Indigenous citizens.