Indian nations within the United State were granted – or had forced upon them – U.S. citizenship in 1924, but they have still been considered separate nations for many governing purposes. Now a case before the U.S. Supreme Court, Haaland v. Brackeen, is challenging the Indian Child Welfare Act or ICWA.
The Act was passed by Congress in 1978 after it was discovered that twice as many native children as non-native youth were being removed from their homes and placed in foster care or put up for adoption. ICWA gives Native American families and tribes priority in foster care and adoption proceedings involving Native children. Both sides made arguments before the Supreme Court on Nov. 9.
Between The Lines’ Melinda Tuhus spoke with Chase Iron Eyes, lead attorney with the Lakota People’s Law Project, based in South Dakota. Here he lays out some of the history surrounding ICWA. As the era wound down for so-called Indian residential schools resembling brutal concentration camps, many were replaced by a system of foster care and adoption which still resulted in removing hundreds of thousands of native children from their families and tribes. The Lakota People’s Law Project filed an amicus brief in the case, arguing for the protection of ICWA.
[Editor’s note: The audio version of this interview was edited to fit broadcasting time-length constraints.]
CHASE IRON EYES: Now this happened to hundreds of thousands of native people and the purpose was to get us away from the TIWAHAY, the family circle, within which the unwritten cultural mores and the spiritual ceremonial protocols are transmitted to the next generation. That is what ICWA is about. ICWA didn’t just spring up from the good judgment and benevolent actions of the U.S. Congress. ICWA came as the result of struggle.
Take a look: 40 years later and you have states who are unwilling to honor federal law, who are unwilling to honor a native American tribe’s right – inherent right, God-given right – to determine who their people are, who their citizens are, the constituencies, their members and to have that right honored by the states of the union and by American settlers, who are seeking to adopt these Native American children, who we see as the source of our ongoing ability to determine our own destiny.
That’s kind of the political reality around here. There is a very violent settler colonial mentality that is at work here in these states that America now knows. Like South Dakota, for instance, Kristi Noem, the current governor, is an Indian fighter; she is a hater of tribal sovereignty. South Dakota takes about 740 Indian children every single year and when they take those children, according to ICWA, they’re supposed to notify the Indian parent and the tribe which the child comes from. Secondly, they’re supposed to place the native child with that child’s family or next of kin. That’s option number 1. Option number 2, if they can’t place with family or next of kin, then within the child’s tribe. Option number 3, if they can’t place within the child’s tribe, then any tribe or a tribe the child may be eligible for enrollment from or maybe they’re descended from another tribal nation. We are a very mixed native people. We were all over the board.
MELINDA TUHUS: Chase Iron Eyes, thanks for that history. Now, can you sum up the argument at the Supreme Court?
CHASE IRON EYES: The Supreme Court is considering two issues: whether or not ICWA, a federal law, violates the Anti-Commandeering Doctrine, which says the federal government can’t tell the states what to do in certain areas. Now, can the federal government, because of its treaty relationship, because of its trust relationship, require that Indian identity is protected? We say Yes, those of us on that side of the brief say Yes. Obviously, Texas and the Gibson Dunn law firm say No.
The second question is, Is an Indian tribe, is an indigenous nation, a distinct political entity, or is it a race? Are Indians distinct political entities or they a race or an ethnic minority in the frame of American citizenship?
So obviously we say No, we are independent nations who have been forced into a state of dependency and that’s why they call us Distinct Political Entities or Domestic Dependent Nations, which is an oxymoron. But we are not a race of American subjects whose apex of rights terminate at civil rights and Constitutional rights.
We worked very hard to organize and increase tribal governmental capacity to create institutions that could take all of these children – I mean if you’re doing devil’s advocate, there is a lack of Indian homes to place children who come into the Department of Social Services.
In these colonially oppressed demographics and landscapes, the ills and the symptoms of a foreign and imposed poverty culture a lot of times lead to broken families. But we were trying very hard to increase that tribal capacity.
So, Kevin Washburn was the assistant secretary for Indian Affairs [under the George W. Bush administration]; he came out to Rapid City, South Dakota. We had different tribal leadership from Standing Rock nation and all the other tribes of the Oceti Sakowin gathered and that was the beginning of our role in drafting some of the fixes for ICWA.
But it doesn’t matter what we draft and how much we say this is how good it should be. What matters is if states are going to start honoring the First Americans, tribal nations, or whether they’re going to continue taking our children, because our children are worth a ton of money. We’re talking hundreds of millions of dollars, in federal reimbursements that go from the U.S. to states like South Dakota that can take this many children. They have a financial incentive to take our children in violation of ICWA.
So, you know, we are hoping for the best at the Supreme Court, but we are also preparing for the worst.
For more information, visit Lakota People’s Law Project at lakotalaw.org, Safeguard Native Children at action.lakotalaw.org/native-children-and-families and Protect the Indian Child Welfare Act at action.lakotalaw.org/action/protect-icwa.
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