What's ahead in 2023

Betting, adoption lawsuits pose greatest threat to tribes in decades, experts say

A lawsuit in Washington state and another case before the U.S. Supreme Court are part of a coordinated campaign that experts say is pushing once-fringe legal theories to the nation’s highest court and represents the most serious challenge to tribal sovereignty in over 50 years.

“It could have really big impacts on basically every law Congress has passed that has to do with tribes and tribal citizens,” said Rebecca Nagle, a journalist, citizen of the Cherokee Nation and host of the “This Land” podcast, which explored the Brackeen case in detail. “It’s really the legal foundation for the rights of Indigenous nations in this country.”

The highest courts in Canada and the United States are expected to decide child welfare cases this year that could have far-reaching implications for Indigenous rights on both sides of the border. In Brackeen v. Haaland, the U.S. Supreme Court will decide the future of the Indian Child Welfare Act. And in Attorney General of Québec, et al. v. Attorney General of Canada, et al., the Supreme Court of Canada will rule on the constitutionality of the federal government's Indigenous child welfare legislation, Bill C-92. Although the constitutions and arguments before the top courts in both countries are different, legal experts say the two parallel cases could affect who has the legal right to decide what's best for Indigenous children throughout the continent. Read more here.

 

KEY CASES SHARE ATTORNEY

Maverick Gaming and Chad and Jennifer Brackeen are also backed by the same legal team.

The Brackeens are challenging ICWA, a 1978 law that requires caseworkers to give preference to Indigenous families in foster and adoption placements of children who are members of a federally recognized tribe.

The law was aimed at correcting centuries of injustice.

Between 1819 and 1969, the federal government took many thousands of Indigenous kids from their homes and forced them to attend brutal schools that employed “systematic militarized and identity-alteration methodologies,” according to a report released by the U.S. Department of the Interior in May.

After the federal government ended mandatory attendance at American Indian boarding schools, officials continued to remove overwhelming numbers of Indigenous kids from their families and place them in foster or adoptive care outside their communities.

When Congress passed ICWA in 1978, studies showed that state child welfare agencies and private adoption companies were taking between 25% and 35% of Native kids from their families. And 85% of those children were placed with non-Indigenous families.

Native families are still four times as likely as white families to have kids removed from their homes, according to the National Indian Child Welfare Association.

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Native American News: 2022 in Review  

 

Martha Aupaluktuq-Hickes, left with green hat, and her mother Nancy Aupaluktuq, right, listen to Pope Francis during his visit to Iqaluit on July 29. Seven of Nancy’s eight children, including Martha, are survivors of Canada’s residential school system (Photo by Corey Larocque)

Newsmaker of 2022: The residential school survivors

 

 

 

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.”

READ

On Wed #SCOTUS will hear oral arguments in a case that could be the beginning of the end of the legal structure defending Native rights in this country.

If you’re not paying attention yet, tune in. #Brackeen #ICWA https://t.co/Yjr0DxiohM

— Rebecca Nagle (@rebeccanagle) November 7, 2022

ICWA Part II. Yesterday I talked about ICWA what it is & why it's being challenged Nov 9th in the Supreme Court. Now I would like to explain the challenge itself and why it's invalid. The challenge is that ICWA (and by extension the existence of tribes) is racially based.

— Auntie Weyodi's Bad Advice Column🐀 (@weyodi) November 7, 2022

BAD OUTCOMES: Brackeen Case | New York Times and #ICWA

 reblog from 2019

By Trace Hentz (blog editor)

FIRST UP:  The New York Times headline June 5, 2019:   

Who Can Adopt a Native American Child? A Texas Couple vs. 573 Tribes

Here

 

I posted my comment which became a NYT Pick:

I am an adoptee and journalist who has documented the history and narratives of Native adoptees in three Lost Children anthologies. If the Brackeens had done any research prior, they would know the outcomes for Native adoptees are not good. Adoption gets pretty ugly when it doesn't work. Once kids are out of diapers, they start noticing and feel the isolation without kin. There are medical terms for our damage. The adoption industry will not advertise that most patients in psychiatric care are adoptees. They don’t warn adoptive parents their new child will suffer from “Severe Narcissistic Injury” or “Reactive Attachment Disorder.” This news would not be welcome. LINK

Of course some readers slam me for using the word "kin" ...or ask how do I know about the damage we suffer...  No shock... I get it: they don't get it and they don't know the history or the Native adoptees I  know personally... (There were 775 comments before they shut it off today and many are amazingly correct!)

An earlier comment from Ellen gets it:

This country has a long brutal history of removing Native children from their families with the intent of culture genocide. There is nothing different about this case. I am sure that the Brackeens are lovely (wealthy) people who care for Zachary, and the new baby they selfishly wrested from her family. Still, it does not undo the damage done to the Navajo nation, in losing 2 precious children, not to mention the damage done to the children in growing up apart from their culture...while being quite different in appearance from the rest of this family. But skin color is not the issue - the erasure of culture and sense of self is.

After reading the NYT story I am not surprised that the Navajo tribe and the Brackeens will share custody, as Judge Kim declared, but the Brackeens would have primary possession.  Taking Indian children off the rez and changing their identity to white and ending their sovereignty and treaty rights and a connection to tribal lands:  the old playbook is the new playbook.  

It is always about possession.

We have covered this case on this blog for the past few years. (please look at Goldwater Institute (34+ posts) for more insight on this case.)
 

Hundreds of tribal nations vehemently oppose the lawsuit Brackeen v. Bernhardt that splits 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 NYT story reports:

So much remains suspended.

The decision about the act’s fate from the Court of Appeals for the Fifth Circuit is imminent.

The Navajo are appealing Judge Kim’s custody order. 

What about the BRACKEENS:

Potential Adoptive Parents (PAPS) Chad and Jennifer Brackeen might want to learn Navajo history during this lengthy court battle in Texas. (Try this one in 2011: Illegal aliens? Deported adoptees?)

The total population of the Navajo people residing in their land is approximately 180,462 having a median age of 24 years old.   Navajo Nation is situated over a 27,000 square miles of large land within the vicinity of the state of Arizona, Utah and New Mexico. It is considered to be the largest land that is primarily covered by the jurisdiction of the Native American within the territory of the United States.

What most people don't know:  The Navajo are survivors of a barely-known Mormon assimilation program from 1947 to the mid-1990s. 

Year after year, missionaries of the Church of Jesus-Christ of Latter-day Saints approached Navajo families and invited children into Mormon foster homes.  As part of the Mormon Indian Student Placement Program, children would live with Mormon families during the school year to “provide educational, spiritual, social, and cultural opportunities in non-Indian community life,” according to the Church.  

Typically, the Mormon foster families were white and financially stable.  Native American children who weren’t already Mormon were baptized.  Although the LDS Church reached out to dozens of Indian tribes, most participants’ families lived within the Navajo Nation.

Roughly 50,000 children participated in the Mormon Indian Student Placement Program, according to Matthew Garrett, a professor at Bakersfield College.

Rather than improving conditions on the Navajo reservation, the LDS Church asked that children assimilate to the way its white members lived.  Some Church leaders interpreted the Book of Mormon literally and expected that Native American children’s skin would turn lighter as they grew closer to God.  

The Church now admits that not all Native Americans are descendants of the Israelites, or Lamanites, as described in the Book of Mormon.   (Oh really, thanks)

In addition to the claims of damage done by sexual abuse, the lawsuits involving the Indian Student Placement Program assert that the culture of the Navajo Nation was “irreparably harmed” by the LDS Church’s “continuous and systematic assimilation efforts.” Although the last student in the Indian Student Placement Program graduated in 2000, plaintiffs are asking the Church to do all it can to enhance and restore Navajo culture and create a taskforce for that purpose.

SOURCE:  

Why Several Native Americans Are Suing the Mormon Church

Participants in the Church-sponsored Indian Student Placement Program have filed at least three sexual-abuse lawsuits. Lilly Fowler Oct 23, 2016

***

Practices of adopting Native American children directly followed the residential/boarding schools.  Such adoption practices, which came into fruition through forms such as the forced removal of Native American children during Canada’s 60s Scoop and its parallel in the United States, the Indian Adoption Projects, exemplify the adaption of adoption as a settler colonial tool for dispossession and disenfranchisement. 

***

Narragansett author John C Hopkins wrote about his Navajo mother in law on his blog:

Chilocco Indian School opened in 1884 with 123 students. Its first graduating class was comprised of six boys and nine girls. The school finally closed its doors in 1980. The name Chilooco comes from the Choctaw word “chiluki” and the Cherokee word “tsalagi,” which means “cave people” in both languages.

A long, hard-used tarred road turns off Route 166 and ends where the abandoned, ivy-covered stone buildings stand in disrepair haunted by the ghosts from memories past.

Bernice Austin-Begay, a Navajo, recalled the long ride down the road when she was a child returning to school after a rare family visit.

“I’d be sad because I knew it would be a long before I would see them again,” Austin-Begay, Class of 1965, said. “I’d be thinking about my family, thinking about my sheep.”

Austin-Begay was 10 when she was first taken to Chilocco. More than 50 years later she still recalls the day the government agents came to Black Mesa, Ariz. and took her away.

“I was captured,” she said.

Many Indian families resented how the government swooped in and took the children away from their families and did all they could to thwart the Bureau of Indian Affairs. Austin-Begay’s family was one of those. Whenever her mother saw a car coming up the road she would send Bernice running, to hide in the hills until the “biliganas” left. (Biligana is the Navajo word for white man)

But one day the car arrived unexpectedly and young Bernice never reached the woods.

“I was too slow,” Austin-Begay said.

**

'CATASTROPHIC AND UNFORGIVABLE'
Starting in 1958, the Indian Adoption Project placed Native American children in non-Native homes, in what it said was an effort to assimilate them into mainstream culture and offer them better lives outside impoverished reservations.
The project was run by the U.S. Bureau of Indian Affairs, a federal government agency, and the nonprofit Child Welfare League of America, in partnership with private agencies.

 There was a reason Indian leaders went to the Senate in the 1970s and demanded an inquiry into the staggering number of children disappearing in Indian Country. It was not just boarding schools creating this mass exodus of children. Adoption programs in 16 states removed 85% of Native children. Programs like the Adoption Resource Exchange of North America (ARENA), established by the Child Welfare League of America in 1967, funded in part by the Bureau of Indian Affairs, paid states to remove children and place them with non-Indian adoptive families and religious groups like the Mormon Church.  ARENA expanded to include all Canadian and United States adoption agencies and offered them financial assistance.  

ICWA (the Indian Child Welfare Act) prioritizes placing Native children into Native homes or with kin or with families that are willing to keep them within a certain proximity to their cultures.

***

Associate Attorney General Tony West Delivers Remarks at the National Indian Child Welfare Association’s 32nd Annual Protecting Our Children Conference ~ Monday, April 14, 2014

 "...There's more work to do because every time an Indian child is removed in violation of ICWA, it can mean a loss of all connection with family, with tribe, with culture.  And with that loss, studies show, comes an increased risk for mental health challenges, homelessness in later life, and, tragically, suicide."

READ

Battle Pits Native American Tribes Against White Couple Over Adoption of Native Child in Case With Potential Affirmative Action Implications

THE ROOT
(to be continued)

Morongo, 3 other tribes ask U.S. Supreme Court to uphold Indian Child Welfare Act

updated podcast: https://crooked.com/podcast-series/this-land/

 NEWS

'There’s a lot at stake here, and it’s important that the general public understands that (ICWA) stands as a beacon in child welfare practices'

The Morongo Band of Mission Indians and four other tribes from across the nation have joined the federal government in petitioning the U.S. Supreme Court to uphold a law that gives adoption preference for American Indian children in state foster care to American Indian families.

In a petition filed Sept. 3, the tribes are essentially requesting that the high court leave intact the Indian Child Welfare Act, a law enacted in 1978 amid a trend that saw an “alarmingly high percentage” of American Indian children separated from their families by nontribal public and private agencies.

U.S. Secretary of the Interior Deb Haaland, who is of American Indian descent, also has petitioned the Supreme Court to uphold the law, while the state of Texas, on behalf of Chad and Jennifer Brackeen, have petitioned the high court to repeal the law, claiming it is unconstitutional.

On April 21, the Fifth Circuit released its more than 300-page opinion — a mixed bag that largely upheld the law, but in which some judges agreed that certain provisions of ICWA were unconstitutional and others were constitutional, leaving the outcome less than clear.

Now, both the plaintiffs and the defendants have petitioned the nation’s highest court to review the case.

A Supreme Court response to the tribes’ petition and the petition filed by the plaintiffs is due on Oct. 8, according to the docket.

Ken Ramirez, chairman of the San Manuel Band of Mission Indians in San Bernardino, said in a statement Friday that, for more than 40 years, the Indian Child Welfare Act has helped reverse the tide of one of the most enduring historical attacks on Native American people: the forcible removal of American Indian children from their homes, tribal cultures, and tribal communities.

“We are hopeful that the United States Supreme Court will review this case and affirm the constitutionality of the Indian Child Welfare Act,” Ramirez said. “Those who seek to remove Native children from their homes and tribal communities should not be emboldened to return to the harmful and tragic practices of the past.”

 KEEP READING

Goldwater and other rich interests have their guns pointed at us... we will fight them with laws and ceremony... Blog Editor TL Hentz

 

Readers on Adoption That Crosses Cultural Lines

[embed]https://www.nytimes.com/2019/06/07/reader-center/adoption-cross-cultural.html[/embed]

'Although My Indian Identity Isn't Simple, It's Mine': Readers on Adoption That Crosses Cultural Lines

The New York Times

In the more than 700 comments posted on our site, we heard from adoptive parents and adoptees, Native Americans, foster parents, child welfare experts ...

Comments:

Alan Berkowitz

Mount Shasta, CA

 June 7

The stories from adoptive parents and children are touching and raise many important issues. Many (both adoptive parents and children) point out the advantages of being raised in a loving home that is safe and secure in which they are also able to pursue and celebrate their tribal/cultural identity. This is a strong argument which however does not apply to the case in question, in which the adoptive parents show no interest in affirming or celebrating their children's native ancestry and culture AND there is a healthy and loving family of relatives that wants to adopt the two siblings in a home with other biological siblings. Therefore, as much as the arguments provided in the NYT article may merit discussion, they do NOT apply to this case, which represents a modern form of the legalized kidnapping that the dominant culture has perpetuated on Native peoples, notwithstanding the the adoptive parents claims of 'love' and 'religiosity.

linda diane

vancouver, bc 

June 7

I was born in Canada to a Metis woman whose husband died just before the birth. I was adopted during the "Sixties Scoop" where thousands of indigenous children were taken from their home communities. An adoption to a white middle class family with an engineer father was seen as a big step up from the working class environment I came from. I had very conscientious adoptive parents, who were loving and did their best to help me be a part of a family of 6. They never lied to me. Unfortunately, that was not enough. I was taken from my mother. And my indigenous roots. Trauma. Period. This was never addressed, I muddled through life with an underlying sense of not being ok, faked alot and used various means of escaping. When I eventually found my birth mother, she had died two years previous. I have connected with cousins, but I have siblings i have not been able to locate. This kind of trauma and it's lifelong impact needs to be accounted for. It's a systemic issue. Not all, but many adoptive parents are entitled, short sighted, and will be dealing with the fallout when the children grow up and reject them outright for their hubris and folly. Children are not accessories to complete your magazine lifestyle. The cousins I have spoken to who knew my biological mother speak fondly of her; I think she must have hidden alot of pain, as she never spoke of children.