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Wednesday, November 30, 2022

“For Indian country, it is maybe one of the most important cases that has ever gone before the Supreme Court” | The case that seeks to strike down the Indian Child Welfare Act is about colonialism


Supreme Court’s ‘sleeper’ case is major clash over Native American adoptions

The Supreme Court heard a dispute over a longstanding federal law that gives preference to Native American families and tribes over non-Native couples when deciding where to place Native children in custody proceedings.

Although overshadowed by the court’s more politically charged cases, legal experts say the dispute could prove hugely consequential for Native American rights and tribal sovereignty.

“It is a sleeper case,” said Mary Kathryn Nagle, a Native rights attorney who filed an amicus brief in the case. “For Indian country, it is maybe one of the most important cases that has ever gone before the Supreme Court.”

The dispute tees up questions about whether the Indian Child Welfare Act (ICWA) unlawfully imposes race-based preferences when placing Native children, and if the law amounts to excessive federal overreach into state adoption policy.

The case plays out against the uniquely troubling history of mistreatment suffered by the country’s Indigenous population, including the once-common practice of separating Native American children from their families and tribes, which the ICWA was designed to combat.

The Supreme Court looked very different when it last confronted a major ICWA question in 2013 and counted the late Justices Antonin Scalia and Ruth Bader Ginsburg among its members. Although the court now has a solid 6-3 conservative majority, some court watchers believe the current ICWA case could produce a split among the court’s conservatives.

The complex dispute to be heard Wednesday began when three white couples who sought to adopt Indian children sued the federal government over ICWA. Later, additional plaintiffs including the state of Texas joined the case, and several Indian tribes intervened to support ICWA.

Texas and the other challengers claim, among other things, that the law’s provision giving preference to Native American adoptive parents over non-Native parents violates the Equal Protection Clause of the 14th Amendment.

“A classic example of so-called ‘benign’ discrimination, ICWA creates a government-imposed and government-funded discriminatory regime sorting children, their biological parents, and potential non-Indian adoptive parents based on race and ancestry,” Texas wrote in court papers.

“Because this Court has recognized that ‘the way to stop discrimination on the basis of race is to stop discriminating on the basis of race,’ such methods violate equal protection.”

ICWA’s passage arose in response to the frequent separation of Native children from their families and communities by state child welfare and private adoption agencies.

According to research conducted around the time of ICWA’s passage in 1978, around 25 to 35 percent of all Native children were removed from their families and placed either into foster homes or with adoptive families or other institutions. Among Indian children in foster care, roughly 85 percent were in non-Native homes, according to a 1969 survey of 16 states.

“This law was passed against a very disturbing and tragic history of the wholesale removal of Indian children from families to assimilate them into white culture based on prejudice about Indian culture,” said frequent Supreme Court litigator Lisa Blatt at a recent legal forum. Blatt argued the 2013 ICWA case on behalf of a non-Native adoptive couple. 

“It started with the Bureau of Indian Affairs putting all these kids in horrendous boarding schools, and then it then transitioned to the ‘60s and ‘70s to state custody removal proceedings,” said Blatt, a partner at the law firm Williams & Connolly.

In practice, ICWA requires that Indian children be placed with members of their extended family or tribe, or other Native American families before outside candidates may be considered.

Ben Kappelman, a partner at the law firm Dorsey & Whitney who has provided pro bono services to a Minnesota Indian tribe in child welfare proceedings, touted the law as a success.

“ICWA, considered the gold standard in child welfare policy, establishes priority for caregivers of Native American children whose parents cannot care for them,” he said.

Supporters of the law say the ugly history that led up to its enactment underscores the enduring need for protections for Indian children and families’ culture.

“ICWA is based on a simple idea: When Indian children can stay with their families and communities, Tribes and children alike are better off,” the tribes wrote in court papers. “By implementing that simple idea, ICWA ‘promotes the stability and security of Indian tribes and families’ and ‘protects the best interests of Indian children.’”

The Justice Department, on behalf of the Biden administration, is arguing in support of ICWA.

The case has the potential to create a split among the court’s conservatives, some experts say. Blatt, of the firm Williams & Connolly, noted that Justice Neil Gorsuch, a Trump appointee, has “consistently ruled” in favor of tribal rights and law.

“I think the assumption is that the United States that’s defending the law with the support of the tribes, has at least four votes, assuming they have Gorsuch’s vote,” she said. “And that leaves the challengers needing to pick up both Justice [Brett] Kavanaugh and Justice [Amy Coney] Barrett.”

A decision in the cases, Haaland v. Brackeen, is expected by summer 2023.


When You Take Away the Kids, You Take Away the Future

The case that seeks to strike down the Indian Child Welfare Act is about colonialism, not civil rights.



Reclaim your name

 [This needs to be universal, and in America, too... Editor]

Manitoba bill would help ensure birth certificates reflect Indigenous names

WINNIPEG - The Manitoba government is moving to ensure birth certificates can better represent the names of Indigenous people and those of other cultures.

A bill now before the legislature would establish a wider range of letters, characters and symbols beyond the traditional ones found in the English and French languages.

The bill would also allow for single names, instead of first and last ones, in accordance with cultural practices.

Government Services Minister Reg Helwer says the change will meet the needs of residential school and ’60s Scoop survivors who want to reclaim their birth names.

He says it will also serve Indigenous and other families who give their children traditional names connected to their culture.

The proposed changes would apply to name registrations for newborns and for people applying to legally change their names.

“Throughout the residential school period, it was common for institutions to rename children when they were enrolled, erasing traditional Indigenous names to cut the ties a child had with their cultural identity and family,” Indigenous Reconciliation Minister Alan Lagimodiere said in a press release Thursday.

“The Truth and Reconciliation Commission of Canada called upon governments to enable survivors to reclaim their birth names. This change would allow us to take the first step toward implementing call to action Number 17.“

This report by The Canadian Press was first published Nov. 17, 2022.


Recognizing that Indigenous parents should have a right to name their children according to the languages their ancestors carried for millennia means treating them like human beings.

Reconciliation is more than that. - READ


 This Supreme Court Case Is a Case Study in Conservative Hypocrisy

Just weeks after railing against race-conscious college admissions, the justices entertained a bogus race-based argument aimed at undermining Native sovereignty.

By Elie Mystal

There is a deep irony to this claim by white families, who are in essence the beneficiaries of centuries of theft, discrimination, and outright genocide of Native peoples, that they are the victims of a law preventing them from claiming Native children against the will of tribal governments.  More to the point, this case should not turn on the race of the families involved in the dispute because, from the perspective of ICWA, race is irrelevant.



Supreme Court could decide where Native American foster kids in Michigan live

“It’s causing a lot of confusion, and tribal communities feel as if rights are being taken away from them,” Kate Fort said.

If the act is found unconstitutional, this could enable other groups to question more of tribal communities’ sovereignty because they would be designated as a racial group, not a political entity, Fort said. This is especially problematic because not everyone who lives in a tribal community is racially Native.

“Tribal sovereignty exists whether or not the Supreme Court recognizes it,” Fort said. “If the ruling is overturned, the trust between tribes and the U.S. government will be eroded.” READ





The Supreme Court Case That Could Wipe Out Indigenous Sovereignty In The USA...

Rebecca Nagle is INCREDIBLE! We love her!  #ProudtoProtectICWA

Nov 27, 2022 | MSNBC

The Supreme Court is hearing arguments in a high-stakes case about indigenous children and culture.  On the surface, the case known as Brackeen v. Haaland revolves around a dispute over whether a non-native family can adopt a native baby. At the heart of the case is the Indian Child Welfare Act, a law passed in 1978 that says if a state determines a Native child must be legally removed from their home, they must be placed with an American Indian family or, if possible, a member of the child’s extended family or tribe. Non-native families and states are challenging the constitutionality of ICWA, arguing it discriminates on the basis of race. But the case could have implications that extend far beyond that - potentially upending Native sovereignty altogether. “A lot of laws flow from this special nation-to-nation relationship between tribes and the US federal government,” says Cherokee Nation journalist Rebecca Nagle. “And the fear is that because the plaintiffs are making such broad and sweeping arguments in Brackeen, (if the court strikes down ICWA) they could turn all of that – literally centuries of laws – on their head.”

White Christians Are Still Taking Native Children

11/29/2022 by

The Brackeen case is one of many lawsuits by conservative legal groups to weaponize constitutional equality protections against people of color to the advantage of white people. 

Rosa Alvarez, a Yaqui Indian Native American, was protected under Indian Child Welfare Act, passed by Congress in 1978 to help keep Native American children close to their families and traditional heritage. (Joshua Lott / The Washington Post via Getty Images)

This article originally appeared in the Daily Hampshire Gazette.

On Nov. 9, the U.S. Supreme Court heard oral arguments in a case, Haaland v. Brackeen, challenging the constitutionality of the 1978 Indian Child Welfare Act (ICWA). The act gives a preference for Native American people to foster and adopt Native American children. The lead plaintiffs are a well-to-do white, evangelical Texan couple, Chad and Jennifer Brackeen, who are seeking to adopt a Navaho girl against the wishes of her relatives, who want to adopt her themselves. Among other arguments, the Brackeens allege reverse racism—that the law discriminates against them based on their race in violation of the equality guarantees of the U.S. Constitution. 

This case is just the most recent chapter in a long history of white people taking Native children from their parents, tribes and cultures.

Beginning in the late 19th century, the U.S. government set up an extensive system of boarding schools for Native children designed to assimilate them by eliminating traditional Native American ways of life and replacing them with mainstream American culture. Many were run by Christian missionaries.

The federal government forced Native families to send their children to these schools, often far from home and for many years. The white people running these schools forbid the children from speaking their Native languages, gave them English names, forced them to cut their hair and give up their traditional clothes, and coercively replaced their own traditional religious practices with Christianity. The schools were run like military schools, where children had to wear uniforms, march in formations, and adhere to strict rules or face harsh discipline.

The boarding schools taught Native children that their cultures were inferior, with some teachers ridiculing and making fun of the students’ traditions. These lessons taught the children to be ashamed of being Native American. A recent Interior Department report found “rampant physical, sexual, and emotional abuse; disease; malnourishment; overcrowding; and lack of health care in [the] boarding schools.” 

In the 1970s, in response to continuing high rates of public and private agencies removing Native American and Alaska Native children from their homes, Congress passed ICWA. The law requires states to notify tribes before placing a Native American child for adoption and to prioritize placement of children with their extended family, members of their tribe, or other Native American families. 

ICWA advocates supported the law as a way to preserve Native American families, traditions and cultures and counter the widespread assumption that white parents are best for all children. Advocates also argued that the ICWA protects tribal sovereignty by granting tribal nations “exclusive jurisdiction” over their enrolled members and their lands—removing control from federal or state governments and private Christian organizations. 

The lawsuit against the ICWA, brought by the Brackeens, the state of Texas, and three other white couples seeking to take Native children from tribes, could be just the first step to reduce tribal sovereignty and nationhood, creating opportunities for white people to take tribal land and resources as well as children.

It’s not surprising that the plaintiffs in the current case are represented for free by Gibson Dunn, a high-powered law firm that has represented oil and gas companies. One of their previous clients was Energy Transfer and Enbridge, a company responsible for the Dakota Access and Line 3 pipelines. This firm also has clients in the gambling sector. Eroding tribal sovereignty would threaten tribal rights over valuable resources such as mineral rights and gaming operations.

The Lakota People’s Law Project urges in this graphic for readers to fight to uphold the ICWA and protect Native self-determination.
(Lakota Law)

More generally, the Brackeen lawsuit is part of a series of lawsuits brought by conservative legal groups and lawyers to weaponize constitutional equality protections against people of color to the advantage of white people. 

Last month in an affirmative action case, the Supreme Court appeared ready to eliminate the ability of schools to promote the admission of historically disadvantaged students, using reasoning similar to that used by the ICWA case plaintiffs. Republican members of the Court made comments indicating that they believed the 14th Amendment equal protection guarantee—adopted after the Civil War to protect Black people—does not allow any law designed to address longstanding and harmful race discrimination against people of color. 

By advocating for “color blind” applications of the law, the Court would allow white people with greater access to resources and power to take money, land, and even children from communities of color—all in the name of equality. In the ICWA lawsuit, the equality guarantees adopted to protect Black people from the violence and discrimination of white people may now be used by white Christians to continue their long-standing practice of removing Native children from their tribes and cultures—and eradicating their religious practices.

The Brackeen case is a shameful display of the ongoing white supremacist settler colonial project in American society. All people must speak out against this centuries-old genocidal behavior against Native Americans that continues to this day.

Saturday, November 26, 2022

Archbishop Justin Welby apologises for "building hell, putting children into it and staffing it"

REBLOG from May 4, 2022

Readers are advised this story mentions the physical and sexual abuse of Indigenous children in institutions. There are no graphic accounts included, but the subject matter may be triggering for some people. 

Archbishop of Canterbury Justin Welby delivered an unequivocal apology to children, grandchildren and survivors of Canadian residential schools over the weekend, describing their experiences as “a bit of hell” that was “built by the Church and in the name of the Church.”

The Anglican Church leader met with dignitaries from Indigenous governments from James Smith Cree Nation and the Federation of Sovereign Indigenous Nations, which represents 74 First Nations in Saskatchewan. There, he heard the stories of school survivors about how the residential school system ripped families apart, raised self-doubt and self-confidence issues and left them with traumas as a result of sexual and physical abuse.

“It is the rawest, wickedest, most terrible thing, to molest a child while you read them the Bible,” a sombre Welby told the group after hearing the harrowing accounts.


Archbishop of Canterbury apologizes for church's role residential schools - APTN News


Somewhere, there are records and I want them. They’re mine.


sample of 2022 adoption bingo card

Loved this article by an adoptee

22 Nov

“Here we go again.

Those four words pop into my mind every November, like an annual calendar reminder set to go off with a cartoon “boing.”

November is National Adoption Month, and as an adopted person you might think we’re all a bundle of anticipatory excitement, planning the kegger and booking the cover band.”

For example, I’ve been on a 30-year mission to obtain every page of my medical, adoption, foster care and genealogical records.

I’ve had some success at this mostly because I haven’t stopped asking after being told no.


Mardi Link: Happy National Adoption Month

Monday, November 21, 2022

My Navajo identity was taken from me


Opinion: I’m a Jersey girl born into the Salt Clan. My Navajo identity was taken from me

Editor’s Note: Hilary C. Tompkins, a member of the Navajo Nation, served as the Solicitor of the US Department of the Interior during the Obama administration. She currently practices law in Washington, DC. The views expressed in this piece are her own. Read more opinion at CNN.

CNN  — 

My adoption papers said my mother was “very attractive” and that my “grandmother has some education and is considered to be an intelligent woman.” My father, who was listed as “Plains,” was described as having “hair with a slight tendency to wave.”

These small nuggets of information from my adoption papers were my only connection to my birth family. Only much later in life, as a young adult taking Native American studies at Dartmouth College, did I learn that I also had a legal connection with the Navajo Nation as a citizen of the Tribe.

Hilary Tompkins

I’m like many Native Americans who were placed in White families under the Department of the Interior’s Indian Adoption Project in the 1960s and 1970s.

As with the placements of Indian children in boarding schools, this program removed Native children from their Tribes without justification and assimilated them into mainstream America. When I met my birth family as a young adult, one of my aunts held me and cried, saying the last time she held me I was a baby and she had told the hospital officials that she and my extended family would take care of me, but to no avail. I was taken away and put up for adoption anyway.

Recognizing that the continued existence of Tribal Nations was at stake because of the loss of up to 35% of their children, Congress outlawed this practice in 1978 with the passage of the Indian Child Welfare Act (ICWA). At the time, placement with White families was estimated to be at 90%.

Earlier this month, the US Supreme Court held oral arguments in a closely watched case, Haaland v. Brackeen, to decide whether the Indian Child Welfare Act is unconstitutional because it favors the adoption of Native children by Native families.

The states of Texas, Louisiana and Indiana, along with non-Native parents seeking to adopt Native children, say that ICWA amounts to racial discrimination because it has nothing to do with the “ability of Indians to govern themselves.” They argue that the states and non-Native parents should be able to decide the placement of Native children free of consideration of their tribal status because there is no political interest of the Tribes at stake.

And opponents of the Indian Child Welfare Act even go a step further, saying that the law goes against the best interests of Native children by imposing standards that make it harder for them to be adopted into stable, loving homes.

As a Native person who was adopted into a White family before the implementation of ICWA, that’s not the way I see it. I can attest firsthand, as a citizen of both the United States and the Navajo Nation, that ICWA is not about race.

I grew up in southern New Jersey, but I always knew I was Navajo. Born in Zuni Pueblo, New Mexico, I was separated from my family with only a few papers as evidence of my Tribal status.

By all outward appearances, my life today gives the impression that the Indian Adoption Project was a success. I was placed in a family that loved me. I received an exemplary education. I live a comfortable, middle class life. I have enjoyed professional success, having served as Solicitor of the Department of the Interior, the third ranking position in the department – the very federal agency that set my course in life. Yet despite these blessings, the Indian Adoption Project left me adrift, a foreigner in my own country.

Upon my return to the Navajo Nation almost 30 years ago, my sense of loss was overwhelming. The Navajo Nation is a different world: Navajo is frequently spoken there and the laws and way of living are based on Navajo traditions. There is no separation of Navajo spirituality from Navajo sovereignty. One foundational principle is ke’ – kinship – which is rooted in a vast clan system. I didn’t know my clan and couldn’t speak the language. Nor did I understand the complex and traditional laws of Navajo society. The loss of my culture was not just personal, but political.

I tried to make up for my losses, learning some of the language, attending our traditional ceremonies and working for the Navajo Nation Department of Justice. But despite my best efforts, I couldn’t catch up. I can vote in our elections but I don’t understand the stump speeches. I can’t run for office as I am not a fluent Navajo speaker. I reconnected with my birth family, but I have never felt fully integrated into Navajo society.

ICWA recognized that in order to have functioning tribal governments, you need the next generation of tribal citizens to be part of tribal political society. Taking away Native children threatens tribes’ future because the loss of their kids jeopardizes Tribes’ ability to be political sovereign entities. The law gives a preference for placing a Native child with extended family members, members of its Tribe or members of another Tribe – a priority that can make it harder for a White family to adopt. It requires state courts to notify the Tribe about the child, and to have them indicate the preferred placement – or to say placement with a particular non-Native family is okay.

During oral arguments earlier this month, two of the justices indicated that they understood how high the stakes are for Tribal Nations. Justice Neil Gorsuch observed during oral arguments that in passing the law, Congress understood that ICWA is “essential to [the] self-preservation of Indian tribes.” And Justice Kagan recognized that “the political entity is itself being threatened because of the way decisions on the placement of children are being made.”

If ICWA had been in place when I was adopted, my Tribe would have been involved in my adoption. Navajo tribal authorities would have had a say in my adoption had I been adopted under the provisions of the law. I could have maintained a connection with my relatives – even if I had ended up with White parents. I still could have been adopted by a non-Native family, but my adoptive family might have been able to connect with my extended family or others, fostering a connection with my Tribe. But because I was placed for adoption prior to the existence of ICWA, I had to reclaim my connection with my Tribe all on my own.

My family and I eventually found each other by serendipity when I was living on the Navajo reservation. In middle age, I have come to accept who I am – a Jersey girl born into the Salt Clan. I have overcome the pain and loss. But I wouldn’t wish my experience on the children of Tribal citizens today. We cannot fail Native children again as we have failed them in the past.

Native children deserve the opportunity to be citizens of both the United States and Tribal Nations. I pray that they will not be the subject of another social experiment based on the decisions of government officials who haven’t walked in the shoes of the First Americans.

Tuesday, November 15, 2022

How did we get here? (with some humor)


WHY ICWA MATTERS? Land Theft? Child Trafficking? Cultural Genocide? Horrible Adoption Outcomes? Loss of everything?


Friday, November 11, 2022

Harvard Museum Says It Has Hair Clippings from 700 Native Children Who Attended Indian Boarding Schools

Harvard's Peabody Museum (Photo: Public domain)

**This story contains disturbing details from U.S. Indian Boarding Schools. For support and mental health resources, visit The Native American Boarding School Healing Coalition’s list of resources.** 

Harvard’s Peabody Museum has hair clippings taken from the heads of about 700 Native American children while they were attending U.S. Indian Boarding Schools, the institution announced this morning.

The clippings from Native children are part of a collection that includes 1,500 total hair samples from people across Asia, Central America, North America, Oceania, and South America. It was assembled by anthropologist and former Harvard professor, George Woodbury, between 1930 and 1933.  Woodbury took “the vast majority” of samples from living people across the world to study racial hierarchies, The Peabody Museum wrote online.

Woodbury obtained the samples by enlisting the help of “other anthropologists and archaeologists, as well as administrators at a wide variety of U.S. Indian reservations, U.S. Indian boarding schools, and Canadian hospitals as well as missionaries worldwide,” Harvard wrote in an online statement published at 9am on Nov. 10. The collection was donated to Harvard and accessioned in 1935.

According to Harvard University spokesperson Rachael Dane, when the Peabody began organizing its collections in a database in 2008, the location of the Woodbury collection was marked ‘unknown.’ In April 2022, Peabody Museum staff cataloged the Woodbury Collection and determined its contents. 

Many of the samples have the names of the children whose hair was taken, as well as their tribal affiliation.  Approximately 300 tribal nations had samples taken from their kids from at least 21 boarding school locations, plus an additional 12 “collecting locations” noted by Harvard.  The most samples, records show, were taken from 138 children at The Fort Totten Indian School in North Dakota, and 122 children at the Sherman Institute in Riverside, California.

“I just cannot for the life of me wrap my head around something like that,” Rosebud Indian Reservation’s Tribal Historic Preservation Officer Ione Quigley told Native News Online. She learned that hair samples were taken from her relatives in an email that came through from Harvard late Monday evening, she said. “Why would somebody want hair samples … from little ones? That's a human remain that, for us, holds so much sacredness.”

Harvard says it will return all of the hair samples, and that it contacted tribal chairs and tribal historic preservation officers by email to let them know about the samples, though it “did not have all the emails,” Dane told Native News Online.

“The Peabody Museum apologizes to Indigenous families and tribal nations for our complicity in the objectification of Native peoples and for our more than 80-year possession of hair taken from their relatives,” the museum’s website reads.

Nowhere does Harvard acknowledge that it likely broke a federal law that’s been in place since the ‘90s, the Native American Graves Protection and Repatration Act. Under NAGPRA, institutions are required to catalog and return their collections of Native American human remains and their burial objects. Human remains are defined by law as “The physical remains of the body of a person of Native American ancestry.” The term excludes remains or portions of remains “that may reasonably be determined to have been freely given or naturally shed by the individual from whose body they were obtained, such as hair made into ropes or nets.”

This year alone, at least three institutions have completed reparations of human hair to Native tribes or Native Hawaiian Organizations, according to federal register notices. But Dane told Native News Online that, “the Peabody Museum understands that this type of hair sample, which can be found in many museums and federal agencies, is not subject to NAGPRA.”

“I don’t see how they could argue that [collecting hair samples from children can be done with] consent,” Association on American Indian Affairs chief Executive and attorney Shannon O’Loughlin (Choctaw) told Native News Online. “Human hair is considered remains that require inventory and consultation. My first reaction, because there was hair from a Choctaw child included in there, is…what in the world? How did they not know this existed for so long? It’s so disappointing to see Harvard just not getting how to work with Native Nations.”

O’Loughlin said that the Association intends to hold Harvard accountable for requesting proper tribal consultation, instead of merely asking tribal representatives to fill out a contact form online to be notified when further information on return “becomes available.”

From from 1819 to 1969, the federal government operated more that 400 Indian boarding schools where Native kids were forced to attend with the express purpose of cultural assimilation that coincided with Indian territorial dispossession. At these institutions, the government employed “systematic militarized and identity-alteration methodologies” to assimilate Native children through renaming them, banning the use of their language, and cutting their hair, a federal investigation into the government’s role in the schools released in May 2022 noted.

Quigley, the Rosebud tribal preservation officer, is a boarding school survivor from St. Francis Indian School on the Rosebud Indian Reservation.  She can attest to the lack of consent in Native kids having their hair cut at boarding schools—she lived through it. When she arrived at St. Francis Indian School as a sixth grader, nuns forcibly cut her hair.

“It was very very traumatic for me to have my hair cut like that,” Quigley said. “No affection, no care, nothing. There’s something really wrong in that.”

“Does it seem reasonable to you that this hair was freely given or naturally shed?” Melanie O’Brien, who manages the National NAGPRA Program, wrote in response to questions from Native News Online. “That is the ONLY exception to human remains under NAGPRA.”

O’Brien said that she can’t say if Harvard has failed to comply with NAGPRA unless any person alleges it, and the Department of the Interior investigates it. 

“If this were determined to be a failure to comply with NAGPRA because these human remains were not reported in an inventory, the penalty amount would be $7,475 times the number of lineal descendants, Indian Tribes, or NHOs involved,” she wrote. If Harvard were found to be out of compliance with NAGPRA for its collection of inventoried 700 hair samples, it would owe more than $5 million.

Harvard University has one of the largest collections of Native American human remains in the country, according to the inventory it did report in the 90s. Currently, the institution holds at least 6,162 ancestors. Harvard received five federal grants totaling $287,430 from 1994 to 1997 to complete its inventory. It also received two extensions to complete their inventory in 1998 and 2000, public records show.  

This is a developing story.

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Haaland v. Brackeen: The Case that Could Break Native Sovereignty

Why ICWA Matters

Breaking News
tags: Supreme Court, Native American history, Tribal Sovereignty, Haaland v. Brackeen, Indian Child Welfare Act

Rebecca Nagle is a journalist based in Tahlequah, Oklahoma. Her podcast, This Land, won the American Mosaic Journalism Prize in 2020.

Every generation of Americans has seen an effort to undermine Indigenous sovereignty. The latest attempt heads to the Supreme Court tomorrow.

In the sprawling federal lawsuit Haaland v. Brackeen, a handful of white foster parents, among other plaintiffs, are asking the Supreme Court to overturn a law called the Indian Child Welfare Act. ICWA was created in 1978 to prevent family separation in Native communities. When the law passed, about a third of Native children had been removed from their families. But in the lawsuit, far more than the future of Native children is at stake.

When a Native child is up for adoption, ICWA prioritizes placing that child first with relatives, then other members of their tribe, and then other Native families. These placement preferences, the non-Native foster parents claim, give them “fourth-tier status.” Their pro bono lawyer Matthew McGill told the Fifth Circuit that this was all because “they are not and cannot be, because of their race, Indian families.” (Notably, in two of the three underlying custody cases, the non-Native foster parents won custody—when blood relatives also wanted to raise the children.) Citing the equal-protection clause of the Fourteenth Amendment, the plaintiffs claim that ICWA violates their constitutional rights by discriminating against them.

What makes the case tricky is that many people in the United States think of Native Americans as a racial group. But that is not how American law works. Under federal law, tribes and tribal citizens are not a racial group, but a political one.  Accordingly, ICWA applies only to Native children who either are enrolled in a federally recognized tribe or are eligible based on a given tribe’s citizenship requirements. Just as certain laws apply to me because I am a citizen of the United States or a resident of Oklahoma, certain laws apply to me because I’m a citizen of the Cherokee Nation. Those laws flow from the treaties signed between my sovereign Indigenous nation and the United States, established through the same constitutional process the U.S. uses to sign treaties with Britain or Japan.

A host of federal statutes—including on land rights, water rights, health care, gaming, criminal and civil jurisdiction, and tribal self-governance—treat Native Americans differently based on this political classification. In this light, I fear that the Brackeen lawsuit is the first in a row of dominoes—if the Court strikes down ICWA, everything else could soon go with it.

If ICWA is unconstitutional because it is based on race, then what of the clinic where I get my health care that serves only tribal citizens? If ICWA discriminates against non-Native foster parents, what of gaming regulations that allow tribes to operate casinos where non-Native casino developers can’t?  What “racial group” in the United States has their own police forces, courts, elections, governments, and lands, as tribes do?  The possible shift is radical.  The U.S. has been passing laws that treat tribes and tribal citizens differently from non-Native citizens since the founding of the republic.  If that is unconstitutional, the entire legal structure defending the legal rights of Indigenous nations could crumble.


Thursday, November 10, 2022

ICT: Indigenous people flock to DC for ICWA hearing

 ‘If you take our children, you take our identity’

Approximately 60 stood in line waiting to sit inside the court to witness the oral arguments. Many sat between the Capitol and court listening to three hours of oral arguments on their headphones, and others listened to the line of speakers and songs all morning and into midday.

Haaland v. Brackeen challenges the Indian Child Welfare Act, a law that has been referred to as the “gold standard” for child welfare by many child welfare organizations. It was enacted in 1978 to “halt the unnecessary forced removal of Native kids from their families,” said Sarah Kastelic, an enrolled citizen of the Native Village of Ouzinkie and executive director of the National Indian Child Welfare Association.

ICWA - Sarah Kastelic, executive director of the National Indian Child Welfare Association and an enrolled citizen of the Native Village of Ouzinkie, stands outside the U.S. Supreme Court with a sign in her language in Washington, D.C., on November 9, 2022. (Photo by Jourdan Bennett-Begaye, ICT)

“So in our organization, one of the things that we talk about is the recipe for colonization,” Kastelic said. This recipe is “consistently followed by colonizers to colonize Indigenous people.”

She said there are five ingredients:

  1. “Take the land;”
  2. “Control the natural resources, especially the water;”
  3. “Usurp, replace Indigenous governance to delegitimize Indigenous thought;”
  4. “Undermine Native worldview, values, traditions, beliefs;” and

And number five, “the most important ingredient,” she says, is to “sever Native children from their sense of identity, from their culture, from their sense of belonging, from that sense of connectedness to something.”

This would meet the United Nations definition of genocide.




The fate of ICWA

Each side presented their oral arguments Wednesday to the U.S. Supreme Court for the most serious challenge to the Indian Child Welfare Act in recent memory. The decision in Haaland v. Brackeen will be a major force in the future of ICWA and the scope of tribal sovereignty. Today on Native America Calling, Shawn Spruce analyzes the legal debate from a Native perspective with Matthew Fletcher (Grand Traverse Band of Ottawa and Chippewa Indians), law professor at the University of Michigan Law School and author of the Turtle Talk blog; independent journalist Suzette Brewer (citizen of the Cherokee Nation); and Dr. Sarah Kastelic (Alutiiq), director of the National Indian Child Welfare Association.


Full Brackeen Indian Child Welfare Act oral arguments  (Indigenous Wire)

Oral arguments in Haaland v. Brackeen, a U.S. Supreme Court case that will decide whether the Indian Child Welfare Act (ICWA) of 1978 is constitutional and/or will be altered in any way, were heard yesterday. Books will likely be written about this law and the case — and their impact on tribal sovereignty — and we’ll be featuring much more about the issues at stake in days to come.

For those so inclined, take a listen to the 3-hour oral arguments, which are online here. Transcript here.

Of note: Not a single lawyer arguing the case in court yesterday were Indigenous, although Natives with Jenner & Block and the Native American Rights Fund did help prep for the case. A Native has never served on the U.S. Supreme Court, and the high court usually decides several cases each term that impact tribes and Indigenous citizens.


Tuesday, November 8, 2022

Unprecendented ATTACK on ICWA

 “This is an all-out nuclear war attack on ICWA,” said Mary Kathryn Nagle, a Cherokee attorney for the National Indigenous Women’s Resource Center who filed a brief in support of the law. “We have not seen that before. That’s either ironic or interesting, because the law has been on the books for 44 years, and this is the first time the constitutionality of the law has been challenged. This is unprecedented.”


NDN Collective LIVESTREAM #ICWA Lawsuit


The Indian Child Welfare Act (ICWA) was passed in 1978 as a federal law that set standards for the removal and out-of-home placement for Indigenous children; it protects the best interests of the child by placing them in homes that are connected to their tribes and relatives. Brackeen is challenging the constitutionality of ICWA, as it places preference for the placement of Indian children to the tribes themselves.

This Wednesday, November 9th, the Supreme Court of the United States will hear oral arguments for the Brackeen v. Haaland (2021) case. 

Learn more about the case, the Indian Child Welfare Act, and the fight to protect ICWA by visiting these resources:

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Rebecca Tallbear entitled: “DNA, Blood, and Racializing the Tribe”, bearing out what I only inferred:

Detailed discussion of the Bering Strait theory and other scientific theories about the population of the modern-day Americas is beyond the scope of this essay. However, it should be noted that Indian people have expressed suspicion that DNA analysis is a tool that scientists will use to support theories about the origins of tribal people that contradict tribal oral histories and origin stories. Perhaps more important,the alternative origin stories of scientists are seen as intending to weaken tribal land and other legal claims (and even diminish a history of colonialism?) that are supported in U.S. federal and tribal law. As genetic evidence has already been used to resolve land conflicts in Asian and Eastern European countries, this is not an unfounded fear.

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