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)

Strict Scrutiny Podcast on Brackeen Cases

 from Turtle Talk Blog

Here is “Going Down Clutching the Constitution.”

Technicalities: Transfer to Tribal Court Case from Iowa Supreme Court [ICWA] [CASA]

Background: Brackeen v. Bernhardt HAALAND threatens to topple ICWA and place Native American children at risk. Supreme Court Justices agree to review constitutionality of Indian Child Welfare Act (Amy Howe, February 28, 2022)

Earlier article worth a read: https://blog.americanindianadoptees.com/2019/05/op-ed-preserve-indian-child-welfare-act.html

Kate Fort : Transfer to Tribal Court Case from Iowa Supreme Court [ICWA]

210243_816EBFA59A154

This is a very useful decision directly addressing one for the most difficult parts of a transfer process--whether the state court will use a best interest analysis to determine jurisdiction.

These are not reasons to deny a tribe jurisdiction over a child welfare case:

The State argued that transfer should be denied because of the lack of
responsibility by Mother and Father, the efforts of the foster parents to promote
the children’s Native American heritage, and the good relationship between the
current professionals and the children. The guardian ad litem for the children
joined the State in resisting the transfer of the case to tribal court.

Oh, and would you look at that, a CASA:👈  👇

The juvenile court noted that the court appointed special advocate (CASA) for the children recommended that the parental rights of the parents be terminated and the children continue living with the foster parents.  (And a full picture of the racist underpinnings of the modern child welfare system helps develop a fuller view of CASA programs. The term structural racism can call to mind invisible forces that shape the world in a discriminatory way.)

But don't worry--the Iowa Supreme Court clearly channeled the Washington Supreme Court in its thoughtful discussion of ICWA and its purpose, summarizing that

The federal ICWA and accompanying regulations and guidelines establish a framework for consideration of motions to transfer juvenile matters from state court to tribal court. Although good cause is not elaborated at length, both the statute and regulations state in some detail what is not good cause. Absent an objection to transfer or a showing of unavailability or
substantial hardship with a tribal forum, transfer is to occur. Clearly, Congress has an overall objective in enacting ICWA to establish a framework for the preservation of Native American families wherever possible.

The Court goes on to discuss the Iowa ICWA at length, along with some bad caselaw in Iowa, specifically the In re J.L. case, which is a really awful decision and has been a pain to deal with for years.

This Court states,

State courts have struggled with the statutory question of whether federal
or state ICWA statutes permit a child to raise a best interests challenge to
transfer to tribal courts. In In re N.V., 744 N.W.2d 634, we answered the
question. After surveying the terms of the federal and state ICWA statutes, we
concluded that the statutes did not permit a child to challenge transfer on best
interests grounds. Id. at 638–39.

***

In short, there can be no substantive due process violation arising from a
statute that refuses to allow a party to present on an issue irrelevant to the
proceeding. To that extent, we overrule the holding ofIn re J.L. (emphasis ADDED)

***

In conclusion, if there is no objecting child above the age of twelve, we hold
that the transfer provisions of ICWA which do not permit a child from raising the
best interests of the child to oppose transfer does not violate substantive due
process.

Therefore,

In an ICWA proceeding, the United States Supreme Court observed that
“we must defer to the experience, wisdom, and compassion of the . . . tribal
courts to fashion an appropriate remedy” in Indian child welfare cases. Holyfield,
490 U.S. at 54 (quoting In re Adoption of Halloway, 732 P.2d at 972). These
observations apply in this case

There is a small dissent on whether the Father could appeal this case, but no issues with the Tribe's appeal. Also, a reminder that the issue of jurisdiction was never a question Brackeen and decisions like this one are tremendously helpful for tribes seeking to transfer cases.

 

FYI:

Volunteer child advocates, or “CASAs” (Court Appointed Special Advocates), are lay volunteer guardians ad litem appointed by the family court to represent the “best interests” of children who enter the child welfare system. 

(report)

[[...what is particularly striking about the proliferation of volunteer CASA programs is just how visible, and visibly racist, they are. When a CASA is appointed to speak for a child in family court, the child’s parents lose one of the most cherished responsibilities any person can have—the power to decide what is best for their own children and speak on their behalf.  This power is not transferred to the child, but rather to the CASA herself; once appointed, it is the CASA who voices “the child’s” position, based on the CASA’s own assessment of what the CASA thinks is best for the child. 4 When that power—not just the power to determine a child’s fate, but the power to even speak one’s own opinion on the matter—is distributed away from poor families and children of color and given to a group of middle-class white volunteers, the racial bias in the system—the structural racism—is not just clearly visible, but is actually given a seat at the table in court for all to see. And that power works real, tangible harms on families who encounter the child welfare system. The simple act of having a CASA assigned increases the chance that a parent’s rights to her child will be terminated, 5 an outcome that has been called the “civil death penalty.” CASA programs have carved out a unique and in some ways untouchable role in child welfare decision-making nationwide.