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.
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.
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