November 29, 2022

GUEST ROOM | The Indian Child Welfare Act and Haaland v. Brackeen

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This Native November or Native American Heritage Month, the U.S. Supreme Court heard oral arguments regarding the Indian Child Welfare Act (ICWA) in the case Haaland v. Brackeen. The conservative majority court, which has already upended 50 years of women’s reproductive rights, is considering challenges to 60 years of affirmative action on college campuses and, on Nov. 9, began considering overturning a nearly 45-year-old federal law that prioritizes placement of Native children with Native families in foster and adoption cases. The case also has the potential to throw a grenade in centuries-old federal tribal protections.

It is imperative that Cornellians take note of this Supreme Court case. Cornell, like many institutions across the United States, exists without the cession of sovereignty over the land, which Native peoples once held over the entire continent. As informed global citizens at an institution which leads the way in cutting-edge research and entrepreneurship, we must also remember our history, and acknowledge those hard parts of the past, to create a better future. We encourage Cornellians to reflect on what battles Indigenous people are still facing every day in this country, and what we can do to help our communities maintain healthy and thriving lifeways for the generations to come.

As Native people, we remember a time when our children were taken from us. The times when our children were taken from us forcibly are not part of a distant past — these things happened to our grandparents and parents. Their lives were lived far away from their communities, without their languages and without their culture. They lived in a white world, where they were taught that to simply exist as a Native person was a crime that should be washed out of our skin, our hair, our eyes and our souls. 

During the residential boarding school period (1870’s-1990’s), our children were not our own. This legacy continues for generations, as, at the time ICWA was passed, an estimated 25-35 percent of Native children were taken for adoption proceedings — most of which were not placed with Native families. Many social workers did not understand Native lifestyles, and expected Native families to conform to a white, middle-class culture — or else have their children taken away.  Congress created the Indian Child Welfare Act to stop centuries of these unwarranted child removal proceedings. Without ICWA, we fear that Native children will once again be severed from their Native communities and result in a return to the U.S. legacy of forced removal and trauma.

ICWA requires that Native children first be placed with “ (1) a member of the child’s extended family; (2) other members of the Indian child’s tribe; or (3) other Indian families.” When child adoption proceedings begin, the relevant Nation of the child is often allowed to intervene, so that the Nation may participate in the placement process. In short, ICWA grants Native people certain rights in deciding who takes care of Native children. 

However, opposing parties argue that ICWA impermissibly discriminates on the basis of race — which the Constitutional Equal Protection of the laws forbids. But, many Native groups respond that ICWA actually classifies Native children according to political citizenship, not race. Citizenship in a Native Nation is much like citizenship in other international nations — citizens may do things like vote, run for office or enjoy benefits from the Nation. Further, certain Nations in the past have adopted non-Indigenous people, such as the Freedmen in the Cherokee Nation. In short, Native Nations and their people are sovereign political entities and citizens, not just a racial category.  

On Nov. 9, the Supreme Court heard oral arguments considering whether to uphold ICWA in the case Haaland v. Brackeen. Countless states and Tribal Nations submitted amicus briefs in support of ICWA, pleading with the Supreme Court to realize that dismantling ICWA would put thousands of Native children in danger of unwarranted removals once again. 

The ramifications of upending ICWA would be dire. Without ICWA, the United States government will likely continue its centuries old campaign of assimilation against Native peoples. Without ICWA in place, we worry that Richard Pratt’s haunting mission to “Kill the Indian, Save the Man” will be renewed with greater vigor. Our communities know all too well that Native culture and identity are lost when Native children are forcefully placed outside of their tribal communities. Furthermore, the ramifications this decision has for tribal sovereignty, land and mineral and gaming rights are huge. This decision could set a precedent that destroys centuries of legal groundwork based on the sovereignty of our tribal nations. 

So, the question remains, what can you do to help defend ICWA? 

Well, writing to our representatives is a start. The current members of Congress representing New York, and links to their contact information, are as follows: Sen. Chuck Schumer (D-N.Y.), Sen. Kristin Gillibrand (D-N.Y.) and Rep. Joe Sempolinski (R-N.Y.)

This Native November it is especially critical to get Native voices out there on significant issues affecting Native peoples. We all need to speak out to protect our children and defend sovereignty.

A diverse group of tribal people from NAISAC and our Cornell Community contributed to writing this piece. We hope that we, as youth, can make a difference and make our nations proud. Red Mair (Little Shell Chippewa Tribe) and River Webb (NPTI/Sac and Fox) wrote this piece. Red Mair is a student in the College of Engineering, and River Webb is a student in Earth & Atmospheric Sciences. Leslie Logan (Seneca) and Carolyn Click (Mvskoke Nation) contributed to editing this piece. Leslie Logan is the Associate Director of AIISP and Carolyn Click is a second year law student at Cornell. Comments can be sent to [email protected]. Guest Room runs intermittently this semester.