Native American children are under threat — again

The integrity of territory and the integrity of Native families have long been entwined

Perspective by Hayley Negrin (Hayley
Negrin is an assistant professor of history at the University of
Illinois at Chicago where she teaches courses on Native American
history.)

November 15, 2022

Rosa
Soto Alvarez and her three siblings were removed as children from their
mother in Tucson. After a social worker realized the children were
Yaqui, a Yaqui couple became permanent guardians to them all. Soto
Alvarez touches the grave of her foster mother, Carmen Alvarez, at Monte
Calvario Cemetery in Tucson this month. (Joshua Lott/The Washington
Post)

Native
American children are far more likely than White children to be taken
from their parents and placed in the foster care system. Now, the
situation may get much worse.  On Wednesday, the Supreme Court heard
arguments in Bracken v. Haaland regarding the constitutionality of the Indian Child Welfare Act. If the court dismantles the act, thousands of Native families could lose their children.

The
Indian Child Welfare Act, or ICWA, was put in place in 1978 to respond
to an epidemic of child loss in Indian country, with some 80 percent of
Indigenous families losing at least one child to the foster care system.
ICWA put the brakes on this wave of child loss by requiring authorities
to attempt to place children with members of their tribe if their
families could not care for them. It created a checklist for officials
in the broader system that dealt with child welfare to consider the
political and cultural identities of Native American people as a factor
in adoptions. The act also recognized the sovereignty of the 574
federally recognized tribes in the United States by stating that tribal
nations should have a say in what happens to their youngest citizens.

ICWA
was not perfect — as the number of cases of Native children in foster
care today shows — but it protected hundreds of thousands of children
from cultural loss. Members of extended families and kin networks were
able to raise children within their own communities and offer them the
strength of their people’s histories and religious values. While the
Western approach to family privileges a nuclear two-parent model, Native
families have never conformed to this — children have always been
raised within extensive kinship networks, which ICWA also recognized.

The
case now before the Supreme Court appears to be about a White family’s
desire to give a Navajo child a home. But there is more to it than that.
The plaintiffs are arguing that ICWA is racially discriminatory against
the child they would like to adopt. They are using the Equal Protection
Clause of the 14th Amendment to claim that Native children are members
of a racial group and are being treated unfairly. But casting Native
children as members of a racial group instead of a political one is an
attempt to unravel the legal identity of Native people as citizens and
to dismantle tribal sovereignty as a whole.  Doing so would enable the
exploitation of Native resources, including tribal lands — a potentially
rich source of oil, and profit, for extractive industries.

The
argument that Native people are members of a race rather than a
political community goes against 400 years of treaty law. Treaties
between Indigenous groups and colonial governments established the
sovereignty of Native people within Euroamerican legal frameworks
starting in the 1600s. This sovereignty has long been concerned with the
integrity of territory as well as the integrity of families.

For
example, as early as 1618, English settlers in Virginia made plans to
remove Powhatan children from their homes to be brought up in the “true
religion” of Protestantism. But these “savages and infidels” — as John
Smith and early settlers called the Powhatan people of the Virginia
region — insisted that children remain in their tribes. The Powhatan
leader Opechancanough made clear that this was both a family and
a political issue. If parents wished for their children to leave for
brief periods for education, this had to be done with a nation-to-nation
agreement between settlers and Powhatans to respect tribal sovereignty.

Settlers
consistently pushed against established legal boundaries that these
early treaties had created.  At the end of the 17th century into the
18th, for example, settlers in the American South enslaved more than
50,000 Native people, including large numbers of children. This
destroyed Native families. Enslaved Native youths were forced to labor
on plantations beside enslaved Africans whose family networks were also
devastated. As the plantation system rose to prominence, planters
positioned Indigenous children as “Indian” enslaved people who were
racial others.

In
the early 19th century on the eve of the Trail of Tears, Cherokees
bravely fought this kind of racialization. They remembered the stories
of their ancestors’ enslavement. They put their case for nationhood
before the Supreme Court and won the right to tribal governance. The
trio of cases that resulted, known as the Marshal Trilogy, established
the system of dual sovereignty that has structured relations between all
tribes and the U.S. federal government since.

But
failure to honor treaties led to disaster again in the late 19th
century. Treaty obligations established in the wake of the conquest of
the American West obligated the United States to issue Native families
food rations. When officials refused, leaving families hungry, Indian
Agents swooped in and forced starving Native families to swap their
children for sacks of flour and livestock. Between 1869 and the 1960s,
hundreds of thousands of Native children were taken to boarding schools
across the United States where they were forced to give up their culture
and accept Christian education and “civilization.” Once again, children
were cast as “savages” who could not function in their tribal nations
as future citizens.

ICWA
came about in the 1970s as child advocates and members of the American
Indian Movement reacted to hundreds of years of these attacks on
children and tribal sovereignty. Many of AIM’s leading figures spoke of
their elders’ and their own harrowing experiences being taken from their
families in the boarding school era and the intergenerational trauma
they were living with as a result. Big media moments like the occupation
of Alcatraz in 1969 caught the attention of Washington, and Indigenous
leaders made careful use of the event. Recognizing that their children
were the future, they focused on developing legislation that protected
both Indigenous models for kinship and tribal sovereignty at the same
time — ICWA.

Now
as ICWA is under threat, Indigenous leaders are gathering once again in
Washington to make their case before the public. They are arguing — as
their ancestors have argued for hundreds of years — that their children
are not for settlers to define. Congress drafted the 14th Amendment
during the post-Civil War Reconstruction era to redress the wrongs of
slavery and the disenfranchisement of Black Americans, not to divest
Native Americans of tribal sovereignty — as the plaintiffs are now using
it.

Unraveling
tribal sovereignty would not only leave Native children vulnerable, but
also could undermine tribal territory. Many in Indigenous communities
and their allies worry that, as in the past, settlers may be using
Native children to access Indigenous resources, especially oil on tribal
lands.

Given
the current composition of the Supreme Court and what history tells us
about the federal government’s unwillingness to honor treaty agreements
protecting Native children, it is likely that ICWA will be struck down
or weakened. But the position of Native people will remain the same as
it always has. 

As Fawn Sharp, vice president of the Quinault Indian
Nation, said of the court during a news conference on Thursday. “We know
that no matter what they do, we occupy a certain place in this life as
Native people. … There’s not a single thing that any one of them can do
to take that away from us, no legislation, no court decision. They can’t
buy their way into that, and they can’t regulate us. We are sovereign
tribal nations from the beginning of time until the end of time.”