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CANO-SANTIAGO: The Supreme Court must uphold the Indian Child Welfare Act

The rights and sovereignty of Native American tribes must be protected

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Following the recent enactment of the nation’s most restrictive abortion law in Texas, the state has once again filed a controversial and insensitive petition to the Supreme Court — this time, against the Indian Child Welfare Act. Texas and four Native American tribes have petitioned the Supreme Court questioning the legislation’s constitutionality. This comes after a lawsuit was filed in 2017 against ICWA and following Texas courts finding the act unconstitutional in 2018. The Supreme court is set to rule on the case by Oct. 8.

Native tribes including the Cherokee Nation, Morongo Band, Oneida Nation and the Quinault Indian Nation have weighed in on the petition and are urging the Supreme Court to overturn Texas’ Fifth Circuit and appellate courts’ decisions. These rulings continue to question essential components of ICWA that have protected Native children for over 40 years. Despite past lawsuits against ICWA, this new lawsuit could place the act in contention as the current Supreme Court has been called the most conservative court since the 1930s. Regardless, the Court must uphold the act and respect the sovereignty of Native American tribes to make decisions on behalf of their children. 

ICWA was created in 1978 to protect Native children from abuses perpetrated by the federal government, which historically sought to erase Native culture. These abuses include the federal government’s violent removal of thousands of Native Americans from their land during the 19th century and the forced assimilation of Native children through abusive boarding schools up to 1978. The schools were known to be barbaric, leading to an estimated 40,000 deaths of Native children nationwide. The forced assimilation of Native people did not stop after boarding schools closed — through the Indian Adoption Project, the government sponsored placing Native children in white families’ custody. 

ICWA respects Native sovereignty in deciding the best course of action for children placed in foster systems. This is one reason why prominent Native politicians, such as the United States secretary of the interior Deb Haaland, and organizations such as Lakota Law have called on the court to uphold ICWA. ICWA prioritizes placement with the child’s family, then within the child's tribal affiliation and then with other Native tribes. The act provides relief for Native children and families, as statistics show Native children are overrepresented in the foster care system — between 25 and 35 percent of Native children are taken from their homes. Oftentimes poor families are more vulnerable, with something as small as failing to pay rent leading to eviction and leading children to foster care. Today, states continue to undermine ICWA’s protections and disrespect tribal sovereignty, as 85 to 95 percent of Native children in the system are not placed in Native homes. 

The recent challenge to ICWA began in 2016 when a white middle-class Texan family that planned to adopt a Navajo boy filed a federal lawsuit. The tribe was able to locate a Native family to take the boy in, leading the white couple to file a lawsuit against ICWA on the basis of perceived reverse racism. The couple further attempted to adopt the Navajo boy’s sister whose extended family wanted to take her in. In regard to the financial status of the children’s extended family, the white couple claimed they were “concerned with the limited financial resources possible to care for this child.” Such a statement implies a family’s wealth status is more important in raising a child than a connection to their cultural heritage.

There have always been critics of ICWA, many on racially discriminatory grounds. These critics wish to undercut the legal protections of Native children and to challenge tribal sovereignty. For example, in the 1950s a group of conservative congressmen claimed that the “collective rights of tribes shouldn’t trump individual rights of U.S. citizens.” This led to seizing Native lands to build businesses and homes for white Americans. The grounds of this recent petition against ICWA have similarly skewed logic. The plaintiffs of the case claim they are victims of reverse racism for being non-Native and that the federal government is overstepping states’ rights. The phrase “states’ rights” has historically been used to mask the racist nature of one’s political agenda. The irony, however, is that ICWA was created to prevent further cutural erasure and genocide of Native people which was driven by government policy.

If the Supreme Court finds ICWA unconstitutional, it could lead to further undercutting of tribal sovereignty and future challenges for the 573 federally recognized Native tribes. It could also leave Native Americans vulnerable to attacks on their legal rights and ability to craft legislation within their tribes concerning housing, education and healthcare. The desires of Native people and tribes to uphold ICWA must be respected, and regular U.S. citizens should not be making decisions on behalf of Native children and affairs. Further, the U.S. government should not be controlling the decisions and desires of Native tribes when they have historically committed mass atrocities against them. Native tribes are not just a racial group, they are a federally protected and sovereign political identity. The Supreme Court must uphold ICWA for the preservation of Native culture for generations to come.

Yssis Cano-Santiago is an Opinion Columnist for The Cavalier Daily. She can be reached at 

The opinions expressed in this column are not necessarily those of The Cavalier Daily. Columns represent the views of the authors alone. 


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