Guest Commentary: Native Families’ Right to Stay Together Is at Stake at the Supreme Court

By Theodora Simon

Since European settlers arrived on the shores of what is now known as the United States, federal and state governments, intent on seizing Indian lands, have sought to undermine and threaten the existence of tribes through the forced separation and assimilation of Native children. By severing Native children from their families, tribes, and culture, colonizers believed they could stamp out Indigeneity and erase tribal people altogether. As with any nation, the future ceases to exist if children are prevented from carrying on the languages, traditions, and knowledge passed down from each generation to the next.

This tool of assimilation and genocide has been wielded against tribal nations and Native children repeatedly throughout history, and it is happening again now.

The Indian Child Welfare Act (IWCA) — a law that aims to protect Native children from forced removal from their families, tribes, and culture and preserve tribal sovereignty — is currently under attack and at risk of being overturned by the U.S. Supreme Court. Congress passed ICWA in 1978 to address the nationwide crisis of state child welfare agencies tearing Native children from their families and placing them in non-Native homes, in an attempt to force Native children to assimilate and adopt white cultural norms. Before ICWA, public and private agencies were removing 25 to 35 percent of Native American/Alaska Native children from their homes, and 85 percent of those children were placed in non-Native households.

Overwhelming evidence has found that being removed from homes and disconnected from culture, tradition, and identity profoundly harms Native children. The Indian Child Welfare Act requires state courts to make active efforts to keep Native families together and to prioritize the placement of Native children within their families and within tribal communities — where their cultural identities will be understood and celebrated.

This November, the U.S. Supreme Court will hear oral arguments in Brackeen v. Haalanda case that challenges the constitutionality of ICWA. If the Supreme Court rules ICWA unconstitutional, it could have devastating consequences for Native children, families and tribes while simultaneously putting the existence of tribes in jeopardy. That’s why the ACLU and the ACLUs of Northern California, Alaska, Arizona, Maine, Montana, Nebraska, New Mexico, Oklahoma, South Dakota, Texas, Utah, and Washington filed an amicus brief with the Supreme Court today urging the court to uphold the constitutionality of ICWA.

ICWA aims to address the forced separation of Native children and families and represents a small step toward acknowledging the centuries of genocidal violence that underpin this case. Beginning in the early 1800s, the architects of the Federal Indian Boarding School Program designed the program to erase the Indigenous identities of Native people. The government snatched children as young as four years old from their families and sent them to militarized boarding school institutions designed to destroy their Native identities and culture, often hundreds of miles away from their tribal homelands.

Any markers of their Indigeneity — language, clothing, traditional hairstyles, and even their names — were prohibited in these institutions. Indian boarding schools were not simply places where Native youth were stripped of their culture: many children died at these schools from outright neglect, malnutrition, untreated illness, and as a result of physical violence carried out against them.

While boarding schools were largely shuttered by the mid-1900s, the philosophy lived on: Native children were better off living with white families, even at the expense of their mental, physical, and spiritual wellbeing.

In 1958, the Bureau of Indian Affairs created the Indian Adoption Project. The project’s explicit goal was to assimilate Native children into white culture through adoption and the intentional destruction of Indigenous family units and tribal communities. During this era and continuing today, practices rooted in ethnocentric stereotypes operating under the guise of “child protection” resulted in the baseless separation of thousands of Native children from their families and homelands.

It is incomprehensibly heinous that — in order to build the country we all live in today — federal and state governments targeted Native children, robbing those children, their families, their communities, and their tribal nations of everything it meant to be Indigenous.

Brackeen v. Haaland is the largest threat to Native children, families, and tribes before the Supreme Court in our lifetimes. If ICWA is overturned, states would once again be allowed to tear Native children from their families, tribes, and culture while simultaneously threatening tribes’ very existence. The legal arguments made by the plaintiffs challenging ICWA in Brackeen undermine key tenets of federal Indian law, and threaten many other laws upholding tribal sovereignty.

Tribal sovereignty is the right of tribes — 574 currently recognized by the federal government — to make and be governed by their own laws. This sovereignty is inherent, as Native Nations existed long before the creation of the United States. Hundreds of treaties have guaranteed tribal nations the right to self-govern. Through these treaties, Native Nations gave up their right to millions of acres of land that would become the United States in exchange for promises to tribes, including the guarantee that lands “reserved” for tribes would be governed by the tribes in perpetuity. The outcome of Brackeen v. Haaland could put centuries-long legal precedent upholding tribal sovereignty — including tribes’ right and ability to preserve their unique cultural identities, raise their own children and govern themselves — in jeopardy.

Native families have a right to stay together, to care for their children, and to preserve tribal culture by ensuring access to their cultural identity, language, and heritage. The Supreme Court must protect this right and uphold the constitutionality of the Indian Child Welfare Act.

Originally published by ACLU of Northern California

About The Author

Disclaimer: the views expressed by guest writers are strictly those of the author and may not reflect the views of the Vanguard, its editor, or its editorial board.

Related posts

6 Comments

  1. Ron Oertel

    If they’re “sovereign nations”, perhaps the United States doesn’t have to build and maintain infrastructure leading up to their casinos.

    If I could vote to end their gambling monopoly entirely, I would do so.  I’d also dissolve the reservations themselves, over time.  Pay them for that.  They’re already U.S. citizens, and can live anywhere they want to.  Unlike everyone else – who are banned from living on reservations and the profits from gambling.

    In fact, the gambling issue has created enormous divisions between tribes (as well as “who” qualifies), in addition to ongoing pursuit of federal recognition of “official” tribes (and the resulting financial rewards).

    There’s a couple of ballot measures coming up, which represent this tribal division.

    Creating permanent reservations was an enormous mistake in the first place, in more than one way.  (Of course, so was the creation of the United States on land that others were living on – sparsely.)

    And it’s not like they’re all getting rich, either.  There are still tribes living in poverty – even in California.  Again, this is a direct result of the reservation system, itself.  Creating permanent isolation from the rest of the U.S. and modern society at large.

    The war is over, and has been for 150 years or more.

    There are still efforts by some tribes today, to increase their holdings of land (at the expense of public land). They never try to take-over private land, as it’s always easier to take over public land.

    At one time (around 50 years ago), the federal government owned something like 99% of Alaska. Today, that figure is drastically reduced as a result of transfers of land to “Native Corporations”.

    Yeap – I’m aware that I’m in the minority, regarding this view.

    1. Ron Oertel

      By the way, wasn’t Spain, Mexico, France (and even Russia, to a small degree) “involved” with land that we now call the United States?

      Even though native people were living on land that these countries claimed as their own – prior to the creation of the United States?

      And for that matter, weren’t some of these tribes often at war with each other? (Actually, they apparently still are – figuratively at least.)

  2. Ron Oertel

    Overwhelming evidence has found that being removed from homes and disconnected from culture, tradition, and identity profoundly harms Native children. The Indian Child Welfare Act requires state courts to make active efforts to keep Native families together and to prioritize the placement of Native children within their families and within tribal communities — where their cultural identities will be understood and celebrated.

    What “evidence”?

    The truth is that any child can grow up in any culture, which will be ingrained on them as their “own”. “Culture” is entirely a construct, not some kind of biological reality. In that sense, culture is “fake” (and ever-changing, for that matter).

    Much like we all identify as Americans, despite the “culture” of wherever our ancestors came from. Usually, that original “culture” fades over generations.

    I don’t believe a word of this article, regarding the actual reason that some children are removed from parents – and not just limited to Native Americans. No one “wants” your kids, for the purpose of assimilating them into their own “culture”.

    Many don’t even want their “own” kids, let alone someone else’s kids.

    1. Don Shor

      Ron:

      I don’t believe a word of this article, regarding the actual reason that some children are removed from parents – and not just limited to Native Americans. No one “wants” your kids, for the purpose of assimilating them into their own “culture”.

      News from Canada and reports from our own government agencies say otherwise.

      Interior Secretary Deb Haaland authorized an investigation into the U.S.’s Indian boarding school system after the discovery of Indigenous children’s remains at an old Canadian residential school site renewed attention on Americas’ history of genocide against Indigenous peoples. The probe has since identified marked or unmarked burial sites at roughly 53 different schools.

      Details: The federal residential school system was founded as part of an effort to eradicate Indigenous languages and cultures.

      “Federal records indicate that the United States viewed official disruption to the Indian family unit as part of Federal Indian policy to assimilate Indian children,” the report notes.
      Initial research shows that hundreds of Indigenous children died throughout the system. The continued investigation is likely to reveal the actual number of deaths to be in the thousands or tens of thousands, the report notes.

      Data: BIA; Map: Jared Whalen/Axios
      The systematic “identity-alteration methodologies” employed by these schools included:

      Forcing Native American children to use English names
      Cutting their hair
      Requiring standard uniforms
      Barring cultural and religious practices as well as use of Native languages
      These rules were often enforced through punishments that took the form of solitary confinement, whipping, withholding food and slapping.

      The provision of care was “grossly inadequate.” The Interior identified several “well-documented” instances of physical, sexual and emotional abuse; disease; malnourishment; overcrowding; and lack of health care.
      Manual labor was also a common feature — in 1903 at the Mescalero Boarding School in New Mexico, Mescalero Apache boys sawed over 70,000 feet of lumber and made upward of 120,000 bricks.
      Many children tried to escape but were found, brought back and punished, according to the report. The damage had long-term health effects.
      Worth noting: “The deaths of Indian children while under the care of the Federal Government, or federally supported institutions, led to the breakup of Indian families and the erosion of Indian Tribes, Alaska Native Villages, and the Native Hawaiian Community,” the report states.

      “The Department must fully account for its role in this effort and renounce forced assimilation … as a legitimate policy objective.”
      What they’re saying: “I came from ancestors who endured the horrors of the Indian boarding school assimilation policies carried out by the same department that I now lead,” a visibly emotional Haaland said Wednesday at a press conference.

      “Many children like them never made it back to their homes. Each of those children is a missing family member, a person who was not able to live out their purpose on this earth.”
      “Recognizing the impacts of the federal Indian boarding school system cannot just be a historical reckoning,” she added. “We must also chart a path forward to deal with these legacy issues to address the intergenerational impact … and to promote spiritual and emotional healing in our communities.”
      What to watch: Haaland announced Wednesday the launch of a yearlong tour across the U.S. that will allow survivors the opportunity to share their stories and connect with trauma-informed support.

      The document released Wednesday is volume one of the investigation, which will continue under Assistant Secretary for Indian Affairs Bryan Newland.

      https://www.axios.com/2022/05/11/indian-boarding-schools-interior-report

      1. Ron Oertel

        You’re referring to an earlier, poorly-run government-sponsored effort (partly in Canada) to assimilate an entire existing community into a country.  (I’m already aware of this.)

        Again, this is similar to what the Spanish/Mexican government attempted, in California. Is anyone demanding reparations from them? (Not to mention the French in regard to Louisiana, etc.)

        The article that the Vanguard published apparently refers to individual cases, where Native Americans may be placed with those who are not.  (I doubt that there’s an ongoing effort to force “assimilation”.  They likely place children with whomever can best care for them.)

        But I will ask this:  How many Native Americans speak English, use modern technology, etc. – even while on reservations – including those without casinos?

        They’ve already been assimilated – their previous way of life is gone.  (For that matter, no one lives as they did 150 years ago – probably even the Amish.) 

        However, the ongoing reservation system itself is harmful, in more than one way. In a sense, it is similar to the massive, failed Federal housing projects that have since fallen out of favor – for the same type of reasons.

        “Culture” does not “belong” to one group, or another.  There is no patent on it.  It’s “fake” in the first place – an ever-changing social construct.

        If this (and every other country) were actually forced to address previous “wrongdoings” of people long-dead, the list of subjective proposals would overwhelm the entire system. (Some countries/leaders “eliminated” this problem entirely – simply by killing everyone who wasn’t part of their society.)

        Maybe (at some point, some 150 years after the last battle) it’s best for everyone to move on.

         

         

         

        1. Ron Oertel

          In regard to this:

          Forcing Native American children to use English names
          Cutting their hair
          Requiring standard uniforms
          Barring cultural and religious practices as well as use of Native languages
          These rules were often enforced through punishments that took the form of solitary confinement, whipping, withholding food and slapping.

          I recently saw a program regarding this.  Truth be told, some of this is not directed at (solely) Native American populations.  Catholic schools in particular implement a lot of rules that aren’t required or implemented elsewhere (to this day, I assume).

          Reminds me of that scene from The Blues Brothers, where both of the brothers get “whupped” by a nun with a ruler (or something like that).  (Comedy always has some basis in reality.)

          In any case, the program I watched was informative regarding what occurred, and the Catholic church’s (and Canadian government’s) involvement.

          MASKWACIS, Alberta — Pope Francis issued a historic apology Monday for the Catholic Church’s cooperation with Canada’s “catastrophic” policy of Indigenous residential schools, saying the forced assimilation of Native peoples into Christian society destroyed their cultures, severed families and marginalized generations in ways still being felt today

          https://www.npr.org/2022/07/25/1113378991/pope-apology-canada-indigenous-schools

          I suspect I’m at my fifth comment, with this one.

          I stand by my claim that the permanent establishment of reservations (as well as the gambling monopoly granted to some tribes) was an entirely-predictable mistake.

          Nor are they actually “functional”, independent “sovereign nations”. Whenever I hear that claim, I cringe.

Leave a Reply

X Close

Newsletter Sign-Up

X Close

Monthly Subscriber Sign-Up

Enter the maximum amount you want to pay each month
$ USD
Sign up for