For many indigenous women, political action regarding children was not about campaigns for
subsidized day cares or cultural arguments about gender, work, and parenting. Child welfare was a literal fight to keep Native children in their homes and in their nations.

During the 1970s, Native American women activists understood the crisis of child adoption
(which had grown rampant in the postwar era) as more than a personal issue affecting individual
families. The removal of Native children from their homes and communities compromised not only parental rights but also tribal sovereignty. Technically, indigenous nations had a legal advantage in the battle for control over Indian child welfare because the right to oversee issues related to children living on reservations existed as an implicit aspect of sovereignty. In practice, however, state courts and welfare agencies largely misunderstood or ignored tribal authority and the interests of indigenous communities and removed Native children from their homes at arresting rates—an average of one quarter of Native American children lived away from their parents during the early 1970s

In response, Native women activists created a child welfare political agenda that not only kept
children in their communities but also addressed the problems that sometimes led to foster and adoptive placements. Although they acknowledged that there were legitimate issues, such as alcoholism, that required some parents to surrender their children, activists did not interpret the current crisis as the result of inadequate parenting. Nor did they place blame exclusively on culturally insensitive child welfare systems. Rather, activists condemned poverty and the vestiges of colonialism for the problems that precipitated child removals. One activist asserted that ‘‘the process of colonization has brought more destruction to these family ties than any internal changes … could have ever created.’’ According to this woman and others, while colonization created the problems indigenous families faced—solutions to them rested with Native nations. Both the programs’ indigenous women activists established and their petitions to the federal government to uphold the right of the tribes to control child welfare focused on increasing tribal agency in addressing the fundamental difficulties that Native families confronted. These activists gained strength from their citizenship in Native nations and framed their work against child removals in the context of tribal sovereignty.

The history of non-Native people intervening in the lives of indigenous families is a long one; arguably as old as the history of colonization itself. The Indian Child Welfare Act (ICWA) of 1978 is Federal law that governs the removal and out-of-home placement of American Indian children. … ICWA established standards for the placement of Indian children in foster and adoptive homes and enabled Tribes and families to be involved in child welfare cases.

“They closed the boarding schools and opened up CPS (Child Protective Services), but it’s the same thing – they’re still coming in and taking our children,” Cetan Sa Winyan said. The Cherokee Nation of Oklahoma, the Oneida Nation of Wisconsin, the Morongo Band of Mission Indians of California and the Quinault Indian Nation of Washington are petitioning the Supreme Court to request that the Indian Child Welfare Act remain intact.

The state of Texas is challenging the constitutionality of ICWA, claiming it’s a race-based system that makes it more difficult for Native kids to be adopted or fostered into non-Native homes. Another argument is that the law commandeers states too much, giving federal law imbalanced influence in state affairs.

A Supreme Court response to the tribes’ petition and the petition filed by the plaintiffs is due on October 8th.

Tribes and advocates argue that ICWA is culturally- and politically-based, not race-based, because tribal nations have political status as sovereign governments under federal law. Cherokee Nation Deputy Attorney General Chrissi Nimmo said the tribe will put all the resources it has into making sure ICWA is protected. “ICWA attempts to keep children connected to their tribe … and an attack on that is absolutely an attack on tribal sovereignty,” Nimmo said.

In the case of Brackeen v. Haaland, the Brackeens — the white, adoptive parents of a Diné child in Texas — seek to overturn ICWA by claiming reverse racism. Joined by co-defendants including the states of Texas, Ohio, Louisiana, and Indiana, they’re being represented pro bono by Gibson Dunn, a high-powered law firm which also counts oil companies Energy Transfer and Enbridge, responsible for the Dakota Access and Line 3 pipelines, among its clients.

You can sign a petition here – https://action.lakotalaw.org/action/protect-icwa.