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Nathan Tanner

The Indian Child Welfare Act is gaining renewed attention because of the U.S. Supreme Court’s 5-4 ruling in Oklahoma v. Castro-Huerta delivered on June 29, 2022. The specifics of the ruling assert that states, not tribal nations themselves, have the power to prosecute non-Indian crimes within Native governed lands. The National Congress of American Indians released a statement almost immediately criticizing Justice Brett Kavanaugh’s majority opinion and the Court’s ruling, describing it as a “strike against tribal sovereignty and jurisdiction to protect tribal citizens.”

While Native peoples are not in unfamiliar territory, having been forced to struggle against both federal and state governments to defend their tribal sovereignty for centuries, the Supreme Court’s ruling could have “profound consequences for Native nations and their authority,” as Professors of Law Gregory Ablavsky and Elizabeth Hidalgo Reese have both argued recently in this article. Among those consequences, could be the court’s future ruling in a contentious case involving the Indian Child Welfare Act, the subject of Haaland v. Brackeen which will be taken up by the Supreme Court beginning November 9, 2022.

The Indian Child Welfare Act, or ICWA as it is more commonly referred to, is an important piece of federal legislation that was enacted in 1978. This congressionally enacted legislation was the result of numerous national studies and damning congressional testimony during the late1970s. According to the National Indian Child Welfare Association, research conducted during the 1970s found that 25-35 percent of Native children were being separated from their parents and families by both state child welfare organizations and private adoption agencies. In 85 percent of cases where Native children were being removed from their caretakers, they were removed entirely from their communities.

Importantly, one of the most significant factors contributing to the removal, assimilation, and colonization of American Indian and Alaska Natives was their compulsory attendance at off-reservation boarding schools and similarly situated educational programming. Religious and state sponsored educational initiatives that include schooling have long been utilized as a political tool to whittle away at tribal sovereignty and the lands tribal nations have occupied, controlled, and stewarded since time immemorial.

Historians have dated colonial education models imposed on Native Americans, including boarding schools, to a Virginia statute concerning “Indian Children held hostage” adopted by the Virginia legislature in 1656. A more modern iteration of state sponsored educational colonization, however, is found in the Civilization Fund Act enacted by the United States Congress in 1819 for the purpose of “the civilization of the Indian tribes adjoining the frontier settlements.” This legislation included appropriating federal funds to introduce Indigenous children to Christianity, European models of agriculture and husbandry, and instruction in various Euro-American academic subjects in the English language.

In his book “Education for Extinction,” historian David Adams documents the century-long “ideological and psychological” war fought against Native American children. Both religious and state entities forcibly removed Native children from their families and homelands and used education and schooling to assimilate tribal nations to capitalism, Christianity, and English. As Adams and other historians have demonstrated, including Nick Estes,Standing Rock Sioux, churches’ and governments’ collusive colonial modus operandi was strategically designed to aid American settlers in the dispossession of Indigenous lands.

In the most recent season of Rebecca Nagle’s podcast, This Land, she thoroughly details both the history of Indigenous child removal and assimilation and what is at stake for tribal nations in the Haaland v. Brackeen case this fall. Nagle is a Cherokee citizen. While the adoption and fostering of American Indian children is ostensibly the face of this challenge, Nagle explains how the case shares continuity with centuries long attempts by religious organizations and state governments to redefine “Indian,” undermine tribal sovereignty, and control land.

Just as they did throughout the 17th, 18th, 19th, and 20th centuries, conservative groups and Christian organizations are funneling huge sums of money to dismantle ICWA in the 21st century, striking at the very heart of tribal sovereignty: the right to raise and educate each nation’s children and determine futures without colonial interference on the lands to which they belong and control.

As Indigenous peoples and their allies prepare for the fight to defend ICWA in the months to come, it is worth remembering a specific historical case that illustrates what the fight for tribal sovereignty entails in the case before the Supreme Court next session.

Between 1947-1978 over 5,000 Native children and youth—mostly Diné—were removed from their homes to participate in the LDS Church’s Indian Student Placement Program. At its height in the 1960s, the LDS church’s officially sanctioned educational program bussed children away from home—just as off-reservation boarding schools had done for decades—to LDS chapels in Provo, Utah, before placing them with white Mormon foster families throughout the intermountain west.

The goal? By living with Mormon families and attending public schools in mostly white Mormon communities, the LDS Church and the placement program’s ISPP’s leaders believed they could provide Native youth with the spiritual and socioeconomic ability to determine their own destinies. The leaders of the LDS Church—however well intentioned, and in a manner patterned after other Christian organizations since the 15th century—meant for their program to re-educate Native youth to assimilate them to the cultural and social practices of white society.

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In the 1970s, the LDS Church and American Indian activists with the Red Power Movement clashed. Mormons—like the Brackeens and their allies today—believed they were “saving” and caring for Native youth. Red Power activists, however, using their publication The Warpath, argued that the Mormon placement programISPP was perpetuating cultural genocide.

As debates in Washington, D.C., took place concerning the fostering and adoption of American Indian children in the late 1970s, Mormons asserted their rights to “parental self-determination,” just as the lawyers challenging ICWA in 2022 are claiming. Their argument then, just as it is now, is a disingenuous mockery of tribal claims to sovereignty.

Along with the LDS Church, U.S. House Rep. Gunn McKay,R-Utah, mounted a challenge to passing ICWA. The challenge from Utah’s political delegation and the LDS Church were significant enough for Sen. James Abourezk, D-South Dakota, to write in a “Mormon exemption” to ICWA, allowing the LDS Church to maintain the placement programISPP. In 1978, Sen. Abourezk remarked to The New York Times that “[The Senate] exempted [the ISPP] on purpose and out of necessity. There would have been one hell of a political fight if we hadn’t.” As a result, the Mormons’ placement programISPP continued until the year 2000.

During the Senate hearings led by Sen. Abourezk in the summer of 1977, hundreds of pages of reports from tribal and U.S. state governments were included to advocate the passage of ICWA. This included testimony from Bobby George, a representative from the Navajo Office of Resource Security. His testimony denounced “activities of religious organizations…[that] in their zeal and commitment to their own beliefs have disrupted family relationships” through prolonged separation. Considering the significant number of Diné youth who had been removed from Navajo Nation for participation in the LDS placement programISPP, it is not a stretch to recognize that the LDS Church was included in his rebuke.

Since it was signed into law in 1978, ICWA has protected tribal sovereignty of the Navajo Nation, as well as all other 574 federally recognized tribal nations, by granting tribal nations, not the federal or state governments, and not private Christian organizations, “exclusive jurisdiction” over their enrolled members and their lands.

What exactly does tribal sovereignty entail? It involves the federal government recognizing and upholding the treaties and laws it has made with tribal nations. It comprises the federal government’s guarantee and assistance in upholding tribal governments’ explicit right to self-governance. According to the National Congress of American Indians, this includes,

the power to determine their own governance structures, pass laws, and enforce laws through police departments and tribal courts…provide multiple programs and services, including, but not limited to, social programs, first-responder services, education, workforce development, and energy and land management…build and maintain a variety of infrastructure, including roads, bridges, and public buildings…[and] to continue to protect their unique cultures and identities.

It is imperative that ICWA remain protected now and for the future.

Native peoples are neither afraid of nor ill prepared for this legal battle, and tribal nations have demonstrated as much by filing an unprecedented number of amicus briefs to uphold ICWA. What can make a difference now is the federal government and the Supreme Court’s commitment to upholding its own legal precedent concerning the tribal sovereignty of American Indians and Alaska Natives. Given the proven utility of amicus briefs in the Supreme Court’s Indian cases, there is also an opportunity for state governments and agencies, as well as religious organizations—like Utah and the LDS Church that is headquartered there—to stand in support of tribal nations. Where government and religious institutions once challenged tribal sovereignty through child removal, compulsory boarding school attendance laws, and land theft, they can face historic injustice and meet it with resolve by defending ICWA as a gesture towards recognition of the past and a demonstration of solidarity for the future.

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