Klee Benally Walks On | ICWA and Continued Legislation of Indigenous Existence

Diné ‘Land Defender, Warrior,’ Klee Benally Walks On

Diné activist and musician Klee Benally walked on on the morning of December 31, 2023. He was 48 years old. 

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June 15, 2023 admin

As many celebrate the defense of ICWA, we also must recognize the colonial violence that has demanded and produced it. 

ICWA was passed in 1978 due to the rampant genocidal white christian driven legal practice of taking Indigenous children from their homes and placing them with white christian families.  The law was created to resolve a problem colonialism created.  The settler colonial state didn’t become interested in “keeping Indigenous children with their Tribes” until it was assured that those children would be passively assimilated into its “civilized” order.

Through laws like ICWA, the State continues to legislate and enforce Indigenous existence.

White families stealing Indigenous children should be a non-issue.  That any argument for justification for keeping Indigenous children with their peoples is occurring is part of the larger issue of white supremacy, cis-heteronormativity, and Indigenous genocide. 

Before ICWA was enacted in 1978:

    – 25%–35% of all Native children were being removed from their homes; 

    – of these, 85% were placed outside of their families and communities—even when fit and willing relatives were available. 

    – Today, Native families are 4x more likely to  have their children removed and placed in  foster care than their White counterparts.

    (facts from https://www.nicwa.org/about-icwa) 

Before 1492 Indigenous children weren’t stolen by colonizing predators.

While ICWA is celebrated as an affirmation of Indigenous sovereignty, in actuality it affirms congressional power to regulate commerce (The Commerce Clause) with Indigenous Peoples and plenary power over “Indian affairs.”  A plenary power or plenary authority is a complete and absolute power to take action on a particular issue, with no limitations. 

The legal battle over ICWA erases Indigenous children who are not from federally recognized tribes, border communities, & migrants doesn’t address issues of dis-enrollment.  Particularly as ICWA specifically “sets federal requirements that apply to state child custody proceedings involving an Indian child who is a member of or eligible for membership in a federally recognized tribe.”  ICWA reinforces “Indian” citizenship policies that some Tribal governments have used to exclude mixed race descendants.  Regardless of ICWA, child theft still occurs within the foster care system, where Indigenous youth still are most likely to end up.

The discourse around ICWA is also inherently cis-heteronormative as it doesn’t support queer & two-spirit family formations.  ICWA defines Indian child as “any unmarried person who is under age eighteen and is either (a) a member of an Indian tribe or (b) is eligible for membership in an Indian tribe and is the biological child of a member of an Indian tribe…” 

What justice can we expect from a colonial system that also maintains anti-Indigenous laws sanctioning desecration of sacred lands and attacks bodily autonomy?

Are our cultures and communities so desperate and broken that we celebrate that colonizers can determine if our children belong with us? The apparent “necessity” of ICWA demonstrates the fallacy of colonial laws and the predatory white supremacist violence that constantly looms outside our homes.

That colonial laws are required to stop white people from outright stealing Indigenous babies is the result of a much deeper systemic problem than laws like ICWA can address.

Many of our families & homes are broken due to colonization, more colonial laws won’t fix that.

What are culturally-rooted non-state based solutions to keeping Indigenous children with our families?

www.indigenousaction.org