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Supreme Ct. may overturn indigenous adoption law

Supreme Court hearing on landmark Indigenous adoption law sparks outcry.

As the Supreme Court considers the Indian Child Welfare Act, activists fear loss of Native sovereignty.

November 16, 2022 at 6:33 pm PST

Demonstrators stand outside of the U.S. Supreme Court, as the court hears arguments over the Indian Child Welfare Act, Wednesday, Nov. 9, 2022, in Washington. (Photo courtesy of AP Photos)

It was a landmark federal law protecting Native American children from being placed into non-Native families that compelled Erika Salinas, a Ph.D. candidate at USC, to pursue her research into the Indian Child Welfare Act, also known as ICWA.

Salinas, who is Native American, had seen firsthand the impact of the Act growing up, when her parents had become ICWA foster parents.

So when the United States Supreme Court took up a case earlier this month that carried the potential to strike the act down, it alarmed her. Separating children from their tribes can cause a loss of connection to the community, she said, and a loss of familial ties.

“There are various studies that show the positive impact of [American Indian and Alaska Native] youth being connected to their culture — some examples being lower rates of depression, substance use, and delinquent behavior,” Salinas said.

Under the IWCA, if more than one tribe has an interest in the Native American child, a court is called upon to determine which tribe has more significant contact with the children.

American Indian and Alaska Native children, she said, “are able to maintain a connection to their family, tribe, community, and culture,” even if they’re placed in a different tribe.

The Supreme Court last week heard oral arguments in the Brackeen v. Haaland case, in which plaintiffs argue existing law discriminates on the basis of race and does not consider the children’s needs. They say it harms the Native children and the non-Native families who want to provide a loving, safe environment for the kids.

But activists have said overturning the IWCA would remove a “gold standard” in child welfare policy and practice.

The federal law, passed in 1978, was designed to prevent Native children from being taken from their homes and tribal communities and put into foster care. According to Salinas, this act preserves cultural and familial ties among American Indian and Alaska Native youth and families and encourages respect for tribal authority in decisions concerning the placement of Native American children in foster care.

And she’s not alone.

Jair Peltier, a PhD candidate studying tribal sovereignty and a cultural ambassador to the Native American Pasifika Student Lounge at USC, said reservations do have problems ranging from poverty to drug use that causes kids from the community to be put into the welfare system.

“But for years and years and years, it was kind of being used as a tool to take Native children from their Native families and being put into white families,” Peltier said. “And it became a form of assimilation for these children being put into foster care. And so, [ICWA] was kind of designed to prevent that.”

Ryder Jiron, who is the communications and policy coordinator for the Coalition to Stop Violence against Native Women, a survivor-led nonprofit, said that a Native foster parent will have an understanding of the importance of the kids’ culture and where they come from.

“And if the resources are there, the opportunity to be going into the community, visiting the community, doing visitations with family who may not have gotten custody but are aware that they’re around or still have connections to them.”

While growing up, Jiron had witnessed a few kids in his town being adopted out by non-Native parents and families and not being able to understand who they were. They would know they were Native, he said, but not understand what it meant and it could be harmful not recognizing the complexities of either their situation, identity or their cultural background.

To Peltier, from The Turtle Mountain Band of Chippewa Indians, who started studying tribal sovereignty wanting to solve problems of sovereignty and tribal constitutions, this is very concerning.

According to him, if the Supreme Court agrees, then they would be potentially setting the groundwork to eliminate Indigenous sovereignty because it would completely dismantle all systems that have been in place that Native people have been treated differently because of their race.

Tribal sovereignty had come into question not long ago when in the summer, the Supreme Court had held that all states have, as a matter of state sovereignty, the power to prosecute non-Indian crimes within Native lands.

“So that’s the main issue because it’s not a racial thing,” Peltier said “Native people do not exist by virtue of a racial category. We exist by virtue of our historic and political realities.”

© 2022 USC Annenberg Media


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