07/21/2022
Photo: made by Yu'pik artist Eva Bryant 🫶
"With the recent Supreme Court rulings taking center stage, I’d like to draw attention to an upcoming ruling that you may not have heard about yet. Earlier this year, the Supreme Court said they would be taking a look at the Indian Child Welfare Act of 1978, or ICWA for short, and the constitutionality of it.
Before I dive into the concern of overturning ICWA, it’s important to know the history of why this was put into law in the first place. In 1958, congress started what was called the “Indian Adoption Project”. The purpose of this project was to “stimulate the adoption of American Indian children with non-Indian families.”
Government then proceeded to buy ad space in magazines like “Good Housekeeping” or other literature that was sold predominantly to white suburban families. In these ads they talked about the “unwanted” children that need a chance at “new life”. It was meant to tug at the heart strings of white mothers and it worked. The demand to adopt native children skyrocketed and the government was more than happy to oblige.
A criterion was created on which children could be taken by the state. It was written so vague that a significant percentage of indigenous children could be taken by the government and sold to non-indigenous homes. A couple of examples include if a house didn’t have indoor plumbing or if there were too many family members in the same household. This set a blaring double standard as many rural families fit this loose criterion.
The government made it legal to steal indigenous children and sell them to white families as a form of assimilation. This was seen to be more effective and a cheaper alternative to the residential schools the government was already forcing indigenous children into. By the 1960s, between 25% and 35% of all indigenous children were living apart from their families. Of those children, over 85% were placed in non-indigenous homes. The congressmen that set this plan into motion even stated, “Generally speaking, we believe the Indian people have accepted the adoption of their children by Caucasian families, and have been pleased to learn the protections afforded the children through good agency adoptions.”
However, that wasn’t the case at all. Indigenous children were being abused and neglected in their adopted homes at an alarming rate. Biological parents were completely cut off from their children with no hope of ever being reunited. Those that protested were arrested while others complied out of fear.
In the 1960s during the civil rights movement, indigenous activism was gaining the traction it desperately needed and by 1974 hearings took place about the adoption project. Testimonies from children affected were heard as they went into great detail about the abuse, mistreatment, and trauma they had experienced. Videos of these testimonies can be viewed on YouTube. This lasted for 4 years and eventually the Indian Child Welfare Act of 1978 was passed.
ICWA, addressed “that an alarmingly high percentage of Indian families are broken up by the removal, often unwarranted, of their children from them by nontribal public and private agencies... an alarmingly high percentage are placed in non-Indian foster and adoptive homes.” This wasn’t alarming since this was essentially by design. The law laid out child custody proceedings that were “designed to prevent breakup of the Indian family.”
The main thing is that less children were to be removed from their biological families. If they were deemed necessary to be removed, the child had to be placed in the order of preference:
A member of the child’s extended family or
Members of the child’s tribe or
Other indigenous families.
Section 2 part 1 of this bill states that clause 3, section 8, article I of the US Constitution grants Congress “plenary power over Indian affairs”. I could see how this could be seen as wrong and should be ruled as unconstitutional for this statement alone, but the remaining protections that this law grants for indigenous children should stay in place.
This is not a perfect solution and indigenous children are still taken at an alarming rate. In fact, indigenous children are 4 times more likely than white children to be taken from their homes. With that being said, ICWA is the only thing helping to protect our children. We need a major reform of our child protection laws and proceedings but the removal of ICWA is not it. The Supreme Court cannot overrule ICWA until we have a better option in place that can protect our children."
- Eskimo Libertarian
