A Truly Savage System

Nevada Public Radio |

By Richard Boland| January 12, 2023 SOURCE

ICWA does more than protect our children from cultural genocide. It safeguards our tribal sovereignty

While most Americans were
focused on the 2022-midterm election results, American Indians were
searching for clues on how the U.S. Supreme Court might rule in a case
that threatens tribes’ very existence. The case, known as Haaland v.
Brackeen, was brought by a non-Indian couple (the Brackeens), who
adopted two American Indian children. To the casual observer, this case
probably looks like state-sanctioned racism in adoption proceedings. You
see, the Brackeens claim the Indian Child Welfare Act (ICWA) is
discriminatory in granting a preference to American Indians in custody,
foster, and adoption cases involving American Indian children. I totally
get why anyone unfamiliar with American Indian history and the
convoluted legal system that governs tribes’ relationship with the U.S.
would scream discrimination.

However, getting to the heart of this
case requires some of us to reevaluate what we think we know about the
U.S. and its relationship with American Indians. It’s unfortunate that
most people know very little about American Indians. It is more
troubling that what many do know is based on caricatures promoted
by popular culture. Nevertheless, when looking at the Supreme Court’s
ICWA case, it’s important to understand that today’s 574 tribal
governments existed long before the United States was even conceived. In
their dealings with early European settlers, tribes governed themselves
and their interactions with others as sovereign nations. In recognition
of this fact, the U.S. continues to honor tribal sovereignty through
the execution of numerous treaties, the U.S. Constitution, and centuries
of federal Indian law. This is the political status that Indian Nations
refer to when discussing their relationship with the U.S. government.
This political status is also where tribal members derive their rights
as citizens of their tribe, the U.S., and the state in which they live.
As Justice Kagan noted during oral arguments, “the first thing you need
for self-government is, you know, a functioning polity. And Congress is
very clear in this statute that it thinks that this statute is critical
to the continuing existence of the tribe as a political entity. And
that’s, in fact, one of the reasons it passes this statute, is the
political entity is itself being threatened because of the way decisions
on the placement of children are being made.”

Entering into the
world of the child welfare system is, more often than not, a
heartbreaking experience.  The system is certainly worthy of greater
scrutiny and care, but not in the way suggested by the Brackeens’
challenge of ICWA.  The Indian Child Welfare Act was passed after
Congress spent four years studying the forcible removal of Indian
children from their families.  During the height of the tragedy, up to 16
times more Indian children were in foster care than non-Indian
children.  Many of the problems were holdovers of the U.S. government’s
abhorrent Indian boarding school policy.  To this day, Black and
Indigenous people see a higher rate of their children placed in foster
care than non-Black and -Indigenous people.  In most cases, children are
removed because someone has determined they are being neglected.  This
makes perfect sense.  But as University of Pennsylvania professor Dorothy
Roberts pointed out on CBS' Sunday Morning, “Neglect is usually
confused with poverty.  Neglect is defined by most states as parents
failing to provide the resources that children need, like clothing or
food or secure housing.  And those are usually caused because parents
simply can’t afford them.”

It is a truly savage system that
punishes people whose socioeconomic status is largely the result of
decades of discrimination and neglect. Fortunately, Congress recognized
the cruelty of the foster care system, as it was applied to American
Indians, along with the human rights violations involved in forcibly
transferring children of one group to another group. This is why
Congress passed the Indian Child Welfare Act of 1978.

So, what is
this case really about? It’s about commerce. It’s another salvo in the
prolonged campaign to weaken and ultimately to end tribal sovereignty.
It’s about the perpetual longing of the wealthy and powerful for tribes’
ancestral homelands and especially the resources they contain. For as
long as tribes have the ability (albeit limited) to protect their
ancestral lands from destructive development and the independence
afforded by successful economic ventures, tribal sovereignty will always
be seen as an obstacle to this incessant taking.  The problem exists
because of the United States’ unwillingness to consistently honor its
values and promises.  The problem is rooted in 1871, when Congress
stopped making treaties with tribes and effectively reduced them to
domestic dependent nations.

Yet this new status also created a
duty on the part of the federal government to protect tribes. It is this
duty, as exercised by Congress through its plenary power, that the
Brackeen case seeks to exploit.  As Justice Gorsuch mentioned during oral
arguments, “This new rule would, I think, take a huge bite out of Title
25 of the U.S. Code, which regulates the federal government’s
relationship with tribal members.” Gorsuch went on to say, “We’d be busy
for the next many years striking things down.” This duty of protection
has a spotty record, so many tribes are concerned.

I am concerned,
but I am also hopeful. As a U.S. citizen, I’m hopeful that our
purported values will prevail.  As a tribal citizen, who was orphaned at
the age of 12, I know that our tribes are resilient and that our
communal values will see that we continue to raise our children in
supportive communities, surrounded by the culture and heritage they know
best.

Richard Boland is a citizen of the Timbisha Shoshone Tribal Nation and hosted the KNPR podcast Native Nevada.