Native American Tribes in Michigan are joining hundreds of others across the country, waiting on a U.S. Supreme Court’s decision on the Indian Child Welfare Act.
The Indian Child Welfare Act has been in place for 43 years to protect the well-being of Indigenous families and children, according to The Native American Rights Fund. It is meant to keep children connected to their Tribes and prevent them from being taken away by the federal government to be put in foster homes.
Elizabeth Cook, General Counsel Member of the Gun Lake Tribe in Shelbyville south of Grand Rapids, said the act was enacted because of the history Tribes have with the federal government.
The act is “fundamental to Tribes” in keeping their communities intact, she said.
According to the Texas Tribune, the Brackeen v. Haaland case began in 2017 when the Brackeen family wanted to adopt an Indigenous child they had been fostering. The family had initially been rejected due to the ICWA. This was because the court ruled the child should first be with his own family or another within the Tribe before being adopted by a non-Native family.
In 2018, the Brackeen family was approved to adopt the child. The Texas Tribune said although they were able to adopt, the mother, Jennifer Brackeen, posted on her blog, “the passion we have to amend this law remains. It is destroying the hearts of children across the country every day. And it is devastating them.”
The Haaland v. Brackeen case was brought into court January 2020 when the family from Texas and others from Louisiana and Indiana argued the act was unconstitutional. They said the act contains racial discrimination because it favors Indigenous families over non-Indigenous.
Cook said the case is not because of race.
There is much more to the ICWA than what the plaintiffs are claiming, she said. The ICWA was created because Tribes are their own established governments, Cook said. It is because Congress has recognized Tribes as a sovereign, which goes back to the historical aspect of the relationship.
“[You] have to know what the Indian Child Welfare Act is, you have to know, the relationship between the U.S. government and Tribes and why is that. So many people don't know,” she said.
“We are a political group, not a racial group,” Cook said.
In February 2022, the U.S. Supreme Court agreed to review the act and held a public hearing November 9, 2022.
All of the plaintiffs in the case were able to adopt the children in question.
“So, there's no case or controversy, there's no standing issue,” Cook said. “So really, what is the issue? And its money, because … money is just, it's the root of all evil.”
What would happen within Tribes if the act was overturned?
If the ICWA were to be found unconstitutional Cook said it would be “devastating”.
Tribal Councilwoman of the Gun Lake Tribe Phyllis Davis said the act is supportive of Tribal families in keeping their community together.
“Those protections mean a lot to us,” she said.
Both Davis and Cook agreed if the ICWA were to be struck down, a domino effect would ensue.
“If ICWA were struck down, they would be very busy striking down many laws that pertain to Tribes,” Cook said. “You know, there's the Indian Gaming Regulatory Act. There's housing law, there's NHL or Indian Health Services, there's just so much law that has been created and it's because we are a political entity. We are not a racial group or members of some group so there's so much that is wrong with this case.”
The questioning of this act is one of the top policy issues within the Indigenous community today, Davis said.
“What the outcome is going to be, everybody's hanging on this decision,” she said. “There are real long term impacts here, potentially permanent … including process of termination of Tribes again. … This could be our waterloo. I don't know. But Tribes are resilient.”
When any kind of policy law comes into the Supreme Court regarding the Tribes, it “erodes our foundation,” Davis said.
There have been some significant issues with the court that has had a negative effect on Tribes, Cook said. And with knowing how many “hoops” the Supreme Court has had to go through to get this far, is “just unimaginable."
“I mean, the the Attorney General for the state of Texas supported the plaintiffs in the breaking case,” Cook said. “I mean, that's unheard of you know, how did that happen?
Davis said if the ICWA were to be overturned, there would be active efforts and initiatives by Native tribes to redress the actions of the Supreme Court, even if it takes years.
The roots and importance of the ICWA
Cook said she has heard of “horror stories” of the federal government forcibly taking children from their homes, leaving parents with no choice in the matter.
“I just heard something in an interview, and I actually know the woman but she, their family had a plan that if they saw a car coming, the kids would run and hide because they knew that it could potentially be the federal government coming to take their kids…”
That is one of the reasons the ICWA was enacted, Cook said.
According to Montana’s Department of Health and Human Services, “prior to the passage of ICWA, approximately 75% to 80% of Indian families living on reservations lost at least one child to the foster care system.”
Davis said when she was a child, her grandfather would teach her their native tongue. Boarding schools, Davis said, forced children to “be good Christians” as well as lose their language and culture. Her grandparents wouldn’t speak much of their native tongue around Davis as a child out of fear she would face the same punishments they had.
Davis said her three grandchildren know more of the Pottawatomi language than she does.
“And they started learning that through the Tribe and some of their language and culture programs that they've attended over the years,” she said.
Cook said culture is everything to her.
“I mean, it’s everything right?” she said. “It's our people. It's our life.”
When Cook was a child, she said her family made sure she and her siblings knew of their culture, especially since they had to grow up “really fast.”
Because of the importance of understanding Indigenous culture, she knows of the intergenerational historical trauma that Native Tribes suffer. She said alcohol and substance abuse is apparent within Native homes due to the trauma that has been historically faced.
Cook said the sovereignty Tribes has is “bittersweet.”
“Our land is put in trust, but it's put in trust to the federal government, so that we are able, you know, we have sovereign authority over that,” she said. “And that's great, but it's still this relationship that the U.S. government made with Indian people … So, it goes back centuries, really.”
As the ICWA comes into question, Cook said it is a direct attack on the Tribes sovereignty.
The U.S. Supreme Court’s decision is expected by July 1.