Demonstrators stand outside of the U.S. Supreme Court, as the court hears arguments over the Indian Child Welfare Act, Nov. 9, in Washington, D.C. The Supreme Court is wrestling with a challenge to a federal law that gives preference to Native American families in foster care and adoption proceedings of Native children. (Mariam Zuhaib / Associated Press)

Demonstrators stand outside of the U.S. Supreme Court, as the court hears arguments over the Indian Child Welfare Act, Nov. 9, in Washington, D.C. The Supreme Court is wrestling with a challenge to a federal law that gives preference to Native American families in foster care and adoption proceedings of Native children. (Mariam Zuhaib / Associated Press)

Comment: Native American children again under threat

The Supreme Court case is about more than adoption and threatens the basis of Indigenous sovereignty.

By Hayley Negrin / Special To 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. Earlier this month, the U.S. 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.

More than an adoption case: 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.

The right of tribal governance: 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.

Protecting children and future: 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, D.C., 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 Washington state’s Quinault Indian Nation, said of the court during a news conference on Nov. 10, “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.”

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

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