Will the US Supreme Court End the ICWA ?

Within my all things adoption group, I have become aware of the Indian Child Welfare Act, as one outspoken member has brought us awareness of this. The Indian Child Welfare Act was passed to redress years of mass separations of Native families.

In custody battles involving criminality and other race spouses, Native rooted children can find themselves removed over legal involvement and then removed again over abuse, ending up in and out of group homes and rehabilitation centers, and often eventually landing in foster care.

On November 9th, the Supreme Court will hear oral arguments in Haaland v Brackeen, a case challenging the constitutionality of the Indian Child Welfare Act. Designed to keep Native American children in their communities during custody, foster care and adoption proceedings, ICWA was passed in 1978 in response to the mass separations of families that had been customary since the 19th century. Many Native American activists are worried for the future of ICWA, given the rightwing composition of the supreme court.

Some history – In 1860, the Bureau of Indian Affairs opened the first of what would become more than 350 American Indian boarding schools, with the intention of “civilizing” Native American children – an assimilationist policy regarded by many as “cultural genocide” today. By the 1920s, nearly 83% of school-age Native American children were enrolled in boarding schools, where a government report found they were malnourished, overworked, harshly punished and poorly educated. As boarding school attendance increased into the 1960s and 70s – peaking at 60,000 in 1973 – the US government rolled out another program, called the Indian Adoption Project. It ended up placing 395 Native American children from western states with white families in the midwest and east coast.

By the 1970s, data showed that 25% to 35% of Native children had been removed from their families during the boarding school era, leading to the passage of the Indian Child Welfare Act in 1978. According to the law, states are required to follow protocols when handling certain custody cases involving a Native child, including involving the tribe in the proceedings. Perhaps most notably, ICWA also establishes a placement preference system, requiring child welfare agencies to try to keep Native children within their communities – by placing them, for example, with extended family or with a foster family in their own tribe – to ensure that they do not lose ties to their heritage.

Despite ICWA’s existence, the law has often gone unenforced. That’s in part because there is no federal oversight agency monitoring compliance. Although the Bureau of Indian Affairs released guidelines designed to improve enforcement in 2016, tribal officials say that state welfare agencies regarded them as suggestions that were not legally binding.

Therefore, regarding this Supreme Court case – in 2016, a 10-month-old Navajo and Cherokee boy was fostered by a white Texas couple, Chad and Jennifer Brackeen, who ultimately adopted him. When the Navajo Nation was alerted to the case and stepped in to place the child with a Navajo family, the Brackeens sued.

The Supreme Court is set to hear arguments on November 9 2022 and eventually decide these questions related to the Haaland v Brackeen case – does the ICWA discriminate on the basis of race and does the law supersede a state’s right to control child custody placements ? The Brackeens and their supporters argue that ICWA violates the constitution’s equal protection clause, discriminating against them as a white family, and imposes unlawful requirements on states. The federal government and Native advocates say that Congress may enact laws that apply to states in order to uphold its treaty obligations, and that Native Americans belong to a political class based on their sovereign status, not a racial group. Overturning ICWA would reshape the legal relationship between the federal government and Indian tribes.

Many states are now enshrining ICWA in their state law. To date, ten states have codified ICWA – and eight have added provisions to augment it. Native-led coalitions in other states are working to do the same.

Related Issues

Two articles came to my attention yesterday that I believe are related. One was titled The Baby Bust: Why Are There No Infants to Adopt? The subtitle was – Declining birth rates and other factors make it difficult for hopeful adoptive parents to create their forever families. In my all things adoption group, it has become obvious to me that many prospective adoptive parents have become more than a bit desperate.

I actually do believe that the Pro-Life movement is driven by the sharp decline in women either not carrying a pregnancy or choosing to be single parents. Our society’s norms have changed since the 1930s when my parents were adopted.

The other article was Why is the US right suddenly interested in Native American adoption law? In this situation, laws meant to protect Native Americans who have been exploited and cheated out of so much, including their own children, is being challenged by white couples wanting to adopt as being a kind of reverse discrimination against them.

So back to the first article –

The number of adoptions in general has been steadily declining over the years. U.S. adoptions reached their peak in 1970 with 175,000 adoptions tallied. That number had fallen to 133,737 by 2007. Seven years later, the total sank further to 110,373, a 17% decrease.

Reports of a 50% or more decrease in available birth mothers are coming from adoption agencies all over. As a result, some agencies have folded. Those still in operation are compiling long waiting lists of hopeful adoptive parents.

Even so, the demand for infants to adopt remains high. The good news is also that fewer teenagers are becoming pregnant. Teen birth rates peaked at 96.3 per 1,000 in 1957 during the post-war baby boom. However, with the widespread acceptance and use of birth control, there has been a dramatic decline in the teenage pregnancy rate. This rapid decline in teenage birth rates was seen across all major racial and ethnic groups.

Estimates indicate that approximately half of the pregnancies in the United States were not planned. Of those unintended pregnancies, about 43% end in abortion; less than 1% of such pregnancies end in adoption. Adoption is a rare choice. The pandemic shut-down also reduced places where meetings could occur that tend to lead to casual encounters, which often result in unplanned pregnancies.

On to that second article –

A 1978 law known as the Indian Child Welfare Act or ICWA tried to remedy adoption practices that were created to forcibly assimilate Native children. Last April, an appeals court upheld parts of a federal district court decision, in a case called Brackeen v Haaland, that found parts of ICWA “unconstitutional”. The non-Indian plaintiffs (mostly white families wanting to foster and adopt Native children) contend that federal protections to keep Native children with Native families constitute illegal racial discrimination, and that ICWA’s federal standards “commandeer” state courts and agencies to act on behalf of a federal agenda.

The thinking that non-Indians adopting Native children is as old as the “civilizing” mission of colonialism – saving brown children from brown parents. In fact, among prospective adoptive parents there is a dominant belief that they are actually saving children. Native families, particularly poor ones, are always the real victims. A high number, 25-35%, of all Native children have been separated from their families. They are placed in foster homes or adoptive homes or institutions. Ninety percent are placed in non-Indian homes. Native children are four times more likely to be removed from their families than white children are from theirs. Native family separation has surpassed rates prior to ICWA according to a 2020 study.

The fact is that there is a dark side to foster care. Some state statutes may provide up to several thousands of dollars a child per month to foster parents, depending on the number of children in their care and a child’s special needs. Why doesn’t that money go towards keeping families together by providing homes instead of tearing them apart?

Mother/Child Separations

Black babies separated from slave mothers. Native American children separated from their families to indoctrinate them into white standards of living. White babies separated from their mothers in the 1930’s through the 1960’s because they were a profitable and valuable commodity in the adoption market (if you were a black unwed mother you could keep your baby as it was no longer a financially lucrative commodity after the Emancipation Proclamation). And most recently, Hispanic babies separated from their mothers at the southern border of the United States.

These may seem wildly different situations but actually they are the same. Society does not value natural families nor do we support keeping children in the families they were born into. We do this at great harm to the children and equally emotional and psychological harm for their mothers.

In regard to Africans enslaved in America, though they most definitely experienced an assault on their personhood, but never yielded. Because misogyny has been dominate until recently, it is no surprise that women’s voices, both in their own time and in later scholarship, remained largely silent. They reproduced, labored, and died in near anonymity. Slave women did not have ready access to birth control and experienced great pressure to bear children. After the abolition of the international slave trade in 1808, the South’s dependence upon natural reproduction increased. Slave women experienced pressure to bear children from a culture that gloried motherhood and from masters who personally benefited from slave offspring due to their financial value.

In 1879, the Carlisle Indian Industrial School in Pennsylvania was a government-backed institution that forcibly separated Native American children from their parents in order to kill the Indian in him, and save the man. For decades, this effort continued. Native American boarding schools were a method of forced assimilation. The end goal of these measures was to make Native people more like the white Anglo-Americans who had taken over their land. By removing them from their homes, the schools disrupted students’ relationships with their families and other members of their tribe. Once they returned home, children struggled to relate to their families after being taught that it was wrong to speak their language or practice their religion.

The Baby Scoop Era was a period in the history of the United States, starting after the end of World War II and ending in the early 1970s, My parents adoptions were just a little bit ahead of their time but Georgia Tann, through whom my mom was adopted was certainly already profiting when my mom turned up, 5 mos old with blond hair and blue eyes, Tann’s most desired commodity. This time period was characterized by an increased rate of pre-marital pregnancies over the preceding period, along with a higher rate of newborn adoption. It is estimated that up to 4 million parents in the United States had children placed for adoption, with 2 million during the 1960s alone. Annual numbers for non-relative adoptions increased from an estimated 33,800 in 1951 to a peak of 89,200 in 1970, then quickly declined to an estimated 47,700 in 1975. By 2003, only 14,000 infants were placed for adoption. The number of hopeful adoptive parents remains far beyond the number of babies available which set off the international adoption boom and the abuses and exploitations in that field.

Most recently has been the horrendous treatment of Hispanic families at our southern border.

Long before the Trump administration implemented its “zero tolerance” immigration enforcement policy in 2018, it was already separating children from their parents as part of a “pilot program” conducted in the El Paso, Texas, area (where I spent my childhood, I am familiar with border issues and politics). Under the El Paso program, begun in mid-2017, adults who crossed the border without permission – a misdemeanor for a first-time offender – were detained and criminally charged. No exceptions were made for parents arriving with young children. The children were taken from them, and parents were unable to track or reunite with their children because the government failed to create a system to facilitate reunification. By late 2017, the government was separating families along the length of the US-Mexico border, including families arriving through official ports of entry. It is suspected that many of these children were placed in foster homes and may have even been placed into adoption as it has proven almost impossible for some parents to relocate their children.

Sometimes, humanity makes my heart hurt.

The Indian Child Welfare Act

A lawsuit filed by a non-Native American couple in Texas claims the ICWA discriminates on the basis of race and infringes on states’ rights. It will be heard by the U.S. Court of Appeals for the 5th Circuit.

The federal law, passed in 1978, mandates that states prioritize placing Native American children up for adoption with members of their family, their tribe or other Native American families — a remedy to policies that had previously empowered the government to take native children from their parents without cause and eradicate their tribal identity.

The Texas couple, Chad and Jennifer Brackeen, sued the U.S. Interior Department in 2017 after their petition to adopt a Native American toddler they had fostered for more than a year was challenged in state court. Texas Child Protective Services had removed the boy, called A.L.M. by the court, from the custody of his paternal grandparents and placed him in foster care with the Brackeens.

He lived with them for 16 months, according to court documents. They sought to adopt him with the support of his biological parents — members of the Navajo Nation and Cherokee Nation — and his paternal grandparents. The ICWA requires, however, that a child’s tribe be notified before an adoption placement is approved.

The Navajo Nation located a nonrelative Native American family in New Mexico willing to adopt the boy, though that placement ultimately fell through. The Brackeens eventually successfully petitioned to adopt A.L.M. and are trying to adopt his younger sister.

In October 2018, a federal judge in the Northern District of Texas agreed that much of the ICWA is unconstitutional. Defendants in the case, include the federal government and the Morongo, Quinault, Oneida and Cherokee tribes. They have appealed that decision.

The Circuit Judge, James L. Dennis, wrote that the ICWA aimed to classify children not by race, but by politics. The definition of “Indian child” under the law is broad, he wrote, and extends “to children without Indian blood, such as the descendants of former slaves of tribes who became members after they were freed, or the descendants of adopted white persons.”

In a statement affirming ICWA intentions, tribal leaders wrote –

“We never want to go back to the days when Indian children were ripped away from their families and stripped of their heritage.”

The ICWA was passed in 1978 in response to what was viewed as a family separation crisis for American Indian and Alaska Native communities. Studies showed that 25 to 35 percent of all native children were being removed, and of them, 85 percent were placed in homes outside their families or tribes. This happened even when suitable family members were willing to foster or adopt. Those trends followed decades of mistreatment of Native American communities by the U.S. government.