By Laural Ballew (Ses Yehomia/tsi kuts bat soot) / For The Herald
The Indian Child Welfare Act (ICWA) is regarded by experts in the field as the “gold standard” in child welfare best practice, creating much-needed reform on practices that routinely separated Native children from their families in the past. And it is still critically important today given the continued overrepresentation of Native children in the child welfare system caused by systemic and intergenerational trauma and neglect, as well as structural bias.
But ICWA faces a new, pressing challenge as the U.S. Supreme Court recently heard from opponents who argue that the law is racist and unconstitutional because it creates a different set of rules for Native children. This is an intentional misunderstanding of tribal sovereignty, and an attempt to use ICWA as a backdoor to ultimately undermine the rights of tribes in areas like land rights, natural resources and gaming.
When a Native child is put up for adoption, ICWA prioritizes placing that child first with relatives, then other members of the child’s tribe, and then other Native families. These placement preferences, the non-Native foster parents claim in Haaland v. Brackeen, give them “fourth-tier status.” Citing the equal-protection clause of the 14th Amendment, the plaintiffs claim that ICWA violates their constitutional rights by discriminating against them due to their racial group.
Precedents supporting the ICWA date back to the early days of our republic. The ICWA draws classifications based on connections to tribal groups, not on race, and under the Constitution, those tribal groups are separate sovereign nations. Today, tribal groups have their own police forces, courts, elections, governments and lands. What racial group can say they have the same thing in the United States?
The ICWA was adopted by Congress in 1978 in response to a family separation crisis. Research at the time found that one-third of all American Indian and Alaska Native children were separated from their parents, extended families and tribal communities by state child welfare and private adoption agencies, compounding nearly 200 years of cultural genocide through a boarding school system that began in the early 1800s, and actual genocide as European American pioneers “settled” this continent.
As tribal liaison at Western Washington University, I see firsthand the modern-day ripple effects of this legacy, including the alienation that Native students feel from being cut off from tightknit home communities while studying in predominantly white school systems. It doesn’t help that most institutions of higher education have a disproportionately low number of Native teachers and a limited number of lessons on Native American history and culture, affecting everything from feeling a sense of belonging to academic performance, retention and graduation.
We have been working steadily to address much of this in recent years, thanks in large part to an engaged Native American Student Union and to an administration that have listened closely and begun to act. Creating my position and office was one such act. Integrating Native ways of knowing and being into our academic programs is another ongoing effort. And securing funding and land for a new Coast Salish-style longhouse “House of Healing” is yet another powerful step toward addressing past wrongs.
More holistically and in a powerful parallel to the discussions playing out today at the U.S. Supreme Court, is the idea that Native children, from infancy to young adulthood, need a connection to the people and places they come from. I meet students all the time who have grown up outside their tribes, learning later in life that they were Native, and they always say to me that they’re missing something, that they feel lost or forgotten.
We have a term in the Native community for the children who grow up outside the tribes: Lost Birds. Feeling lost and without community only compounds the struggles, the isolation and the lack of resources Native people face every day in this country.
Our children are born with an innate sense of belonging that is nurtured and embraced within our tribal cultures. Maintaining connections with their Native histories and their identities is critical to their sense of self, their well-being, their ability to thrive one day as Native adults in the wider world and their ability to pass down their rich and complex Native ways of knowing to future generations.
We are not racial groups. We are nations. And we have a fundamental right to our heritage, to our future and to raise our children as the sacred members of our tribal groups that they are.
Laural Ballew (Ses Yehomia/tsi kuts bat soot) is the executive director of American Indian/Alaska Native and First Nations Relations & Tribal Liaison at Western Washington University in Bellingham. She is a Swinomish tribal member living on the Lummi reservation with direct family ties to Aleut, Nooksack, Upper Skagit and Suquamish tribes.