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Indian Country Fights to Protect Its Children and Preserve Its Sovereignty

As important as it is for Native families, the battle over the Indian Child Welfare Act is about much more than just the kids.

Justin Sullivan/Getty

As president of both the Quinault Nation and the Affiliated Tribes of Northwest Indians, Fawn Sharp is a busy person. As of late, much of her time has been dedicated to the fight for Native children and, more broadly, tribal sovereignty.

Sharp knows firsthand how difficult it is for Native parents hoping to provide a culturally inclusive household for Indigenous children to jump through the hoops of the current system. Two years ago, Sharp shared her story in a video series produced by her former employer, the National Congress of American Indians, in which she detailed the painful process of applying to adopt Native children only to see them placed outside a reservation with non-Native families.

Sharp told The New Republic it took facing the repeated experiences of fighting the state to provide Native children a Native home—especially as a person of socioeconomic health and numerous degrees and various leadership positions and honors—to spur the realization that something much more damaging was unfolding across the nation.

“It was a harsh reality to find early in the process that it’s not in a child’s best interest to be placed in a home on a reservation,” Sharp said. “It just inspired me and motivated me to not only work through that process for the interest of the children I had hoped to adopt in our family, but more importantly, if someone that has a law degree is still struggling to get through this process, what is it like for a family that doesn’t have that background or experience in the policy or the laws?”

The law that should have helped Sharp but was instead violated by Oregon social services—the Indian Child Welfare Act (ICWA)—was passed in 1978 with the intended purpose of putting an end to the cultural genocide of Native people. Throughout the nineteenth and twentieth centuries, the United States federal government was responsible for the forced assimilation of much of the Indigenous population, pulling Native children from their homes and communities on the reservations and placing them in boarding schools or with white families. Captain Richard Pratt, the longtime superintendent of the Carlisle boarding school, infamously abided by the mantra, “All the Indian there is in the race should be dead. Kill the Indian in him, and save the man.” At Carlisle and similar institutions, the kids were taught to be white: They were forced to abandon their languages and cultural practices and religions and made to adopt the Christian-American way of life. It’s a history that too few Americans know.

Legal challenges to ICWA are not a new phenomenon. But recently, right-wing challenges to the law, backed in part by the libertarian and litigation-happy Goldwater Institute, have been filed with greater frequency. The arguments say that this law, meant to protect Native children, is instead hurting them by limiting their field of potential foster homes and adoptive parents. But the challenges to ICWA have never really been about Native children or their best interests.

Rather, the broader aim is to dismantle one of the core legal tenants of tribal sovereignty—the ability of each Native nation to choose the best course of action for itself and its citizens. If ICWA were overturned, it could open a window to challenge numerous other laws and regulations; a Native nation’s (admittedly already limited) ability to safeguard natural resources on its lands or a tribe’s right to determine who is a citizen could be next on the hit list.

So, when the U.S. District Court for the Northern District of Texas ruled against the three-decade-old child welfare law in late 2018, Sharp saw the bigger danger and immediately turned to a recent ally, Washington state Attorney General Bob Ferguson. Ferguson, the Quinault Nation, 20 state attorneys general, and three additional tribal nations—the Morongo Band of Mission Indians, Cherokee Nation, and Oneida Nation—joined to appeal the ruling to the Fifth Circuit Court of Appeals.

Given the history of tribal nations and state governments, the breakneck speed at which the multination effort came together was inspiring to watch. “If you look at the contours of the relationships between tribal nations and the United States, and even state governments, it’s defined out of conflict and adversary,” Sharp said. “I basically provided an open invitation to a number of state actors and put out an invitation to say, ‘Let’s close the chapter on treaty conflicts, rise above that, and open a new chapter of working together for issues where we have interests that are aligned.’”

The effort paid off. In a decision released August 9, the Fifth Circuit overturned the District Court, ruling that ICWA was constitutional.

“What I took it as was an attack not just on these kids, but it was feeling they were using ICWA to try and find some way to bring down the tribes’ sovereignty and how we’re recognized in this country and the responsibility the government has to tribes,” Robert Martin, chairman of the Morongo Band, said. “It’s always been a struggle with tribes, with the government, and with people in the country. They don’t understand that whole relationship. So [the Fifth Circuit’s ruling] was very important.”

There are no simple victories in Indian Country, however—there had to be a “but.” In this case, it came in the form of a partial dissent from Judge Priscilla Owen. A George W. Bush appointee and staunch conservative, Owen released her dissent a week after the initial decision, writing that ICWA violates the Tenth Amendment because it forces federal standards on state legal challenges brought in state courts (known as the anti-commandeering argument).

The dissent was predictable and expected, according to Sunshine Parker, the human services director for the Eastern Band of Cherokee Indians (EBCI), but it now sets the case on a path that likely ends at the Supreme Court. While the right is feeling good about its chances on most appeals that make it to the increasingly conservative High Court, in the ICWA case, the lingering wild card is Justice Neil Gorsuch. A Trump appointee and typically conservative, Gorsuch sat on the Tenth Circuit bench for eleven years and, compared to the rest of the Justices, is well-versed in Indian law, and typically respects it.

The battle in the courts will likely wind on into next year. For now, Indian Country is in a waiting game. But whether or not ICWA survives this particular challenge, there is still a great deal more that the federal government should be doing to ensure that tribes can proactively serve their children. For instance, as Parker explained to TNR, access to adequate federal funding has been a crucial building block in bringing the Eastern Band’s child and family welfare services out of the disarray of the North Carolina system and under the roof of its own government.

Under a federal program known as Title IV-E, EBCI has had direct access to federal funds, and the nation has used the money to establish its heralded Family Safety Program, unifying what had once been a disparate social service operation. Now, four years in, Parker said the experiment has been “extremely successful for the tribe,” adding that the influx of federal funds coupled with the tribal government assuming responsibility for its enrolled members has been “a great exercise in sovereignty.”

While the ICWA case proceeds and attention is paid to Indian Country’s other issues in this heated election cycle, it is still necessary to safeguard the sovereignty of Native nations. As Kate Fort, staff attorney for the Indigenous Law and Policy Center at Michigan State University College of Law, told TNR, it’s the best thing for the tribes, and for the children who call Indian Country home.

“In the narrow ICWA landscape, we’re still battling back these constitutional challenges, and hopefully this will be one large brick in that wall to keep ICWA constitutional and providing services and active efforts to keep children and families together,” Fort said. “All the research demonstrates that children generally do better when they don’t have to deal with the trauma of removal.”

While the particulars can be complicated, the end goal is fairly straightforward: When tribes have the money to combat intergenerational issues such as poverty and limited economic opportunity, they are able to directly and proactively address the situations that can lead to Native children being removed from their homelands and communities. But it will take an understanding of this by powers outside Indian Country to enable the children within it to grow, thrive, and live in peace.