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Tuesday, April 2, 2019

Fate of Native Children May Hinge on U.S. Adoption Case

Stateline: Indian Child Welfare Act likely headed to Supreme Court


Fate of Native Children May Hinge on U.S. Adoption Case

By Teresa Wiltz
Stateline, an initiative of The Pew Charitable Trusts
pewtrusts.org/Stateline

A case before a federal appeals court could upend an historic adoption law meant to combat centuries of brutal discrimination against American Indians and keep their children with families and tribal communities. For the first time, a few states have sued to overturn the federal Indian Child Welfare Act, which Congress enacted in 1978 as an antidote to entrenched policies of uprooting Native children and assimilating them into mainstream white culture. Now, in a country roiled by debates over race and racial identity, there’s a chance the 41-year-old law could be overturned by the U.S. 5th Circuit Court of Appeals, considered the country’s most conservative court. (The law applies to federally recognized tribes.) Overturning the law, its proponents say, could significantly increase the number of American Indian children adopted into non-Native families.
Hundreds of tribal nations vehemently oppose the lawsuit. They say it threatens the sovereignty of Indian Country and seeks to “return Indian children to the arbitrary and discriminatory whims of state courts and state agencies, unfettered by the centuries-old trust obligations this nation owes to Indian tribes and Indian peoples.” Meanwhile, some states and private adoption attorneys pushing for change argue the Indian Child Welfare Act interferes in state affairs and “requires them to place Indian children in accordance with statutory requirements based on race, rather than the children’s best interests.” Oral arguments in the case were heard last Wednesday in New Orleans. Whatever the outcome, the case is likely headed for the U.S. Supreme Court.


Graphic © The Pew Charitable Trusts
 
Brackeen v. Bernhardt pits Texas, Indiana, Louisiana and a coalition of conservative legal groups, including the Goldwater Institute, against the federal government, hundreds of tribal nations, 21 state attorneys general, Native American civil rights groups and child welfare organizations, including the Annie E. Casey Foundation and the Children’s Defense Fund. The plaintiffs, who include several families interested in adopting Native American children and a non-Native biological parent who wants her American Indian child to be adopted by a non-Native family, argue that the law, often called ICWA (pronounced ICK-wah), is race-based and violates the Equal Protection Clause of the U.S. Constitution. Tribal nations counter that “Indian” is a political, rather than a racial, designation. The Supreme Court agrees with that classification. In 1974, it said that with federal hiring preferences for American Indians in federally recognized tribes, “preference is political, rather than racial in nature.” The plaintiffs also charge that in enacting the law, Congress exceeded its authority over federal affairs with tribal nations. “I want to see ICWA overturned completely,” said Mark Fiddler, co-counsel on the Brackeen case representing adoptive families, and an enrolled member of the Chippewa Nation. “ICWA has been a miserable failure.” 

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Takeaway Podcast ICWA

What our Nations are up against!

What our Nations are up against!
Survivors, write your stories. Write your parents stories. Write the elders stories. Do not be swayed by the colonizers to keep quiet. Tribal Nations have their own way of keeping stories alive.... Trace

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Indian Country is under attack. Native tribes and people are fighting hard for justice. There is need for legal assistance across Indian Country, and NARF is doing as much as we can. With your help, we have fought for 48 years and we continue to fight.

It is hard to understand the extent of the attacks on Indian Country. We are sending a short series of emails this month with a few examples of attacks that are happening across Indian Country and how we are standing firm for justice.

Today, we look at recent effort to undo laws put in place to protect Native American children and families. All children deserve to be raised by loving families and communities. In the 1970s, Congress realized that state agencies and courts were disproportionately removing American Indian and Alaska Native children from their families. Often these devastating removals were due to an inability or unwillingness to understand Native cultures, where family is defined broadly and raising children is a shared responsibility. To stop these destructive practices, Congress passed the Indian Child Welfare Act (ICWA).

After forty years, ICWA has proven to be largely successful and many states have passed their own ICWAs. This success, however, is now being challenged by large, well-financed opponents who are actively and aggressively seeking to undermine ICWA’s protections for Native children. We are seeing lawsuits across the United States that challenge ICWA’s protections. NARF is working with partners to defend the rights of Native children and families.

Indian Country is under attack. We need you. Please join the ranks of Modern Day Warriors. Please donate today to help Native people protect their rights.

where were you adopted?

where were you adopted?

To Veronica Brown

Veronica, we adult adoptees are thinking of you today and every day. We will be here when you need us. Your journey in the adopted life has begun, nothing can revoke that now, the damage cannot be undone. Be courageous, you have what no adoptee before you has had; a strong group of adult adoptees who know your story, who are behind you and will always be so.