ICWA: The Supreme Court Plays with Indian Children’s Future
November 8, 2022
The popular game, Jenga, refers to a block building game that starts with a tall tower constructed of wooden blocks. Players alternate pulling blocks out from the lower levels of the tower, one-by-one, and replacing them to the top of the tower while they endeavor not to be the last person that causes the whole thing to topple to the ground. The name Jenga is derived from kujenga, a Swahili word meaning 'to build.' However, the game of Jenga is really all about de-construction, just like so much recent activity in the Supreme Court of the United States.
When the case of Haaland v. Brackeen goes before the Supreme Court of the United States (SCOTUS) on November 9, 2022, we will watch on to see if the Justices decide to pick out the Jenga block with ICWA, the Indian Child Welfare Act (1978), as the next focus of a larger political effort to destabilize the powers of the Federal government. The competition is between the Federal government and the States - but also other private entities - to control and to regulate resources and cultural say-so in the United States.
The case is named for Deb Haaland (Laguna Pueblo), the Secretary of the Department of the Interior, representing the Federal government; and for Chad and Jennifer Brackeen, a carefully selected prototypic (Christian, White, professional) couple. The Brackeen’s, from suburban Fort Worth Texas, met all the strategic criteria for a poster family in an anti-ICWA attack that has been years in the making. They were channeled by the adoption-is-big-business pipeline to become foster parents to two Indian Children. Like many adoptive couples, the Brackeen’s were on a Christian mission to grow their family of four that already included two biological children. They were told by their agency lawyer to foster first, and they did. While the first placement with an older traumatized toddler didn’t go so well, their second placement was an American Indian infant of Navajo descent. Naturally, they grew fond of this child and began a petition for his permanent adoption. While waiting on the “Red tape” (to use Chad Brackeen’s play on race words) of the ICWA standards, a family case became a test case for the Texas Appellate, and subsequently the Federal Supreme Court to vent opportunity to cry out reverse racism against non-Indian families.
Adoption is big business in America. It hits all the high notes of moral majority and the Christian evangelical free-market platform: To be fruitful and multiply the nuclear families run by preferentially the cis-hetero-normative married faithful. Upper-middle class white Christian families have been positioned by their adoption attorneys, and the agencies they represent, to become instinctively motivated to adopt Indian babies, despite the directive of the 44 year-old Federal law that says not to. ICWA invokes a separate policy for the adoption of American Indian children that honors the importance of maintaining the Indian child’s connection to their National origin in terms of their sovereign Tribes and their culture.
The case as it is formulated is about ICWA, and whether ICWA is unconstitutional. There are two major points of argument that will be heard: The first Jenga “tap test” to the ICWA “block” is to invoke racial prejudice, with a disadvantage to non-Indian (i.e. White) families by scrutiny of ICWA’s definition of an “Indian Child.” The plaintiffs claim it is an impermissibly “racialized” category. The second point is that ICWA puts an undue burden on the State by encroaching Federal reach into matters like child custody that are normally a matter for State jurisdiction.
ICWA was put into place because of the US government’s policies to destroy American Indians for the sole purpose of colonization and Westward expansion. Years of federal policies did innumerable harms to Indian people and have resulted in genocidal devastation and trauma, the near obliteration of cultures, languages and lifeways for Indigenous people across the Americas. ICWA was a landmark public law designed to right at least some of the wrongs associated with these historic policies of killing, starving, stealing and taking, and for the millions of families separated and generations of children displaced by removal from their Indian homes.
The case is purportedly about ICWA, but the funders backing the Brackeen’s have a deep interest in hinging this case. Pulling ICWA down makes it more likely that many of the pillars of Indigenous Tribal sovereignty will follow. If the States can push out the Federal regulation of Indian children’s welfare, they can push out the Federal jurisdiction over all manner of Tribal resources including culture, art, land, water, oil, gas, and minerals. If ICWA is pulled, with it will fall all the powers of the Federal government to regulate commerce, land, babies, and all.
Denise L. Newman, Ph.D. (Ojibwe/Métis) is a clinical and child clinical psychologist in New Orleans, Louisiana. Her research and clinical consulting focuses on Indigenous, mixed race, and adopted individuals, and on trauma and identity development over the lifespan.
Kee Straits, Ph.D. (Quechua) is a licensed clinical psychologist and CEO of TLC Transformations, a consulting firm that supports tribal communities, schools and organizations to achieve equity, wellbeing and thriving for Native youth and families.
Melissa Tehee, J.D., Ph.D. is a citizen of the Cherokee Nation and associate professor of psychology at Utah State University with research focused on the well-being of Indigenous peoples.