Forcibly transferring children from one group to another is an international legal definition of genocide. Taking children has been one strategy for terrorizing Native families for centuries, from the mass removal of Native children from their communities into boarding schools to their widespread adoption and fostering out to mostly white families. It’s what led to the passage of the Indian Child Welfare Act (ICWA) of 1978, legislation that aimed to reverse more than a century of state-sponsored family separation.
Right-wing thinktanks like the Cato Institute have teamed up with non-Native families to not only dismantle the ICWA but the entire legal structure protecting Native rights. And so far, they’ve made important victories.
An appeals court upheld parts of a federal district court decision, in a case called Brackeen v Haaland, that found parts of ICWA “unconstitutional”. The non-Indian plaintiffs contend that federal protections to keep Native children with Native families constitute illegal racial discrimination, and that ICWA’s federal standards “commandeer” state courts and agencies for a federal agenda.
Put plainly, the mostly white families wanting to foster and adopt Native children are claiming reverse racism and arguing that federal overreach is trampling states’ rights.
This is upside-down logic presenting ICWA legislation consciously designed to undo genocidal, racist policy is itself racist because it prevents mostly non-Indians from adopting native children, condoning the “civilizing” mission of colonialism – saving brown children from brown parents.
A mountain of evidence suggests that Native families, particularly poor ones, are the real victims. In two studies from 1969 to 1974, the Association on American Indian Affairs found that 25-35% of all Native children had been separated from the families and placed in foster homes or adoptive homes or institutions. Ninety percent were placed in non-Indian homes.
ICWA aimed to reverse this trend. Today, Native children are four times more likely to be removed from their families than white children are from theirs. And according to a 2020 study, in many states Native family separation has surpassed rates prior to ICWA. This is mostly due to states ignoring or flouting ICWA requirements.
A common cause for removal is “neglect”, a form of abuse and a highly skewed claim especially when the Native families most targeted are poor. Failure to pay rent, for example, can result in eviction and homelessness and the placement of a child in state foster care system because of unstable living conditions. Some state statutes may provide up to several thousands of dollars a child per month to foster parents, depending on the number of children in their care and a child’s special needs. Why doesn’t that money go towards keeping families together by providing homes instead of tearing them apart?
Much like the boarding school system which preceded it, foster care is rife with stories of sexual and physical abuse, neglect and forced assimilation into dominant, white culture. To say nothing of the lifelong trauma of being torn from one’s family and nation during the formative years of childhood.
Why are corporate law firms like Gibson Dunn – which has represented Walmart, Amazon, Chevron and Shell showing up at custody battles against poor Native families and tribes? Are they really interested in the welfare of Native children?
Conservatives want to bring Brackeen v Haaland to the US Supreme Court not just to overturn the ICWA but to gut Native tribes’ federal protections and rights. Anti-ICWA advocates use the language of “equality” to target Native nations. The collective tyranny of the tribe, as the libertarian thinking goes, violates the rights of the individual. Tribal consciousness, the collective rights of a nation, and its sovereignty must be weakened or destroyed to gain access to its lands and resources. Without the tribe, there is no Indian. When there is no Indian, there’s no one to claim the land.
In the 1950s, the argument that the collective rights of tribes shouldn’t trump individual rights of US citizens had catastrophic results with the legal abolition of dozens of tribes that led to the privatization of their lands for the benefit of white businesses.
That is why nefarious corporate interests are attacking the most precious possession of the native American – their children.
Why is the US right suddenly interested in Native American adoption law? | Nick Estes | The Guardian
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