A challenge to a decades-old federal law that aims to keep Native American children and their families together is before the U.S. Supreme Court, and it has the potential to impact tribes around the country, including those in Mississippi.
The Indian Child Welfare Act governs child custody of Native children. If a child is removed from their parents, the act sets preferences to place the child with another family member, another member of the tribe or a different tribe.
The case Brackeen v. Halaand before the Supreme Court challenges these preferences. Three pairs of non-Native foster parents and three states are suing the federal government and five tribes, arguing the act discriminates against non-Native people based on race.
Tribes including the Mississippi Band of Choctaw Indians are watching the case and see more at stake than adoption.
“As the only federally recognized tribe in the State of Mississippi, our 11,000 plus members are descendants of those members who chose to remain here in Mississippi to preserve our cultural heritage on our ancestral homelands,” the tribe said in a statement. “Today, just as in the past, the preservation and security of our tribe, and our tribal children and families are of utmost importance.”
The Supreme Court heard oral arguments in November and is expected to make a ruling next year.
ICWA was created in response to the mistreatment of generations of Native American people by the government, including the enrollment of children in boarding schools where they were forced to abandon their religion and culture and the adoption of children out of tribes.
When the act passed in 1978, between 25% and 35% of all Native children were taken from their families and put in foster homes, up for adoption or into institutions, according to surveys by the Association on American Indian Affairs. They were often placed with non-Native and white families.
ICWA gives tribes the opportunity to be notified about cases involving Native American children and to intervene. It established a process for transferring child custody cases to tribal court.
The act recognizes that tribes have sovereignty and exclusive jurisdiction over their members who live on tribal land or are domiciled there. The act’s standards also apply to Native child custody proceedings in state court for those who don’t live on tribal lands.
During Senate committee hearings about Indian child welfare in the late 1970s, then Choctaw Chief Calvin Isaac testified that raising Native children in non-Native homes reduces tribes’ chances of survival.
The tribe still holds a similar view and says ICWA helps tribes maintain sovereignty by ensuring they have the opportunity to protect and preserve the wellbeing of their children.
“Children are tribal communities’ most valuable resource since the language, culture, and traditions that make those communities unique are passed down from generation to generation,” the Mississippi Band of Choctaw Indians said in a statement.
The Mississippi Department of Child Protective Services, which oversees foster care and adoption in the state, recognizes ICWA and has developed policies and procedures for how to handle cases with Native children and follow the act.
This includes giving the Mississippi Band of Choctaw Indians or any tribe that a child belongs to the right to assume jurisdiction of the child. The department also signed a memorandum of understanding with the tribe in 2020.
In the Supreme Court case, two couples from Texas and Nevada were successfully able to adopt Native American children, even after challenges from the tribes where the children were eligible for membership.
Another plaintiff, a Minnesota couple, tried to adopt a child who was placed with her grandmother, who is a member of the White Earth Band of Ojibwe. The grandmother eventually adopted the girl.
During oral arguments in November, attorneys representing the plaintiffs challenging ICWA argued a number of issues with the act, including that it violates equal protection through racial discrimination and goes beyond the powers given to Congress to regulate Native American affairs.
Another issue challengers brought up is whether Native Americans should be classified politically through tribes or racially through their ancestry.
Ian Gershengorn, the attorney representing the five tribes in the Brackeen case, told the justices during oral arguments that tribal self-government is at the core of ICWA. All federally recognized tribes and members of those tribes have a common political relationship with the United States, which he said is why a political classification is more appropriate than a racial one.
In court documents, defendants have expressed concerns that a challenge to the act could reduce the legal rights of tribes in issues including environmental regulations, land and gaming.
Ashley Landers is a professor in the human development and family science program at Ohio State University who studies child welfare of Native children. She wonders what protections for Native children will remain if ICWA is overturned or drastically changed.
“What are the protections in place to try and right this historic wrong?” Landers said. “We need to have ownership of what we’ve done to Native families.”
Some researchers and advocates want to shift the focus from adoptive parents to adoptees by having the Supreme Court consider the impact on Native American children in foster care and adoption.
Sandy White Hawk, an adoptee from the Sicangu Lakota Tribe in South Dakota, is founder of the First Nations Repatriation Institute in Minnesota. She is also research partners with Landers.
The institute serves as a resource for Native people impacted by foster care or adoption, and it supports family and cultural reunification and community healing and offers technical assistance, research, education and advocacy.
“It’s still happening,” White Hawk said about the adoption of Native American children out of their tribal communities. “Children are still being taken.”
She was placed with a white missionary couple who she said saw her adoption as a way of saving her. In that family, White Hawk endured physical and sexual abuse and grew up hearing her Native American heritage spoken about negatively.
White Hawk and Landers have researched the experiences of Native Americans, including mental health outcomes of Native adoptees and the kind of abuse they experience in foster care and adoptive homes.
In one of their papers submitted to the Supreme Court in Brackeen v. Haaland, they found that Native American adoptees are more likely to report self harm and suicidal ideation compared to white adoptees. Their research found Native adoptees have the unique context of historical trauma, assimilation and systemic child removal that suggests their mental health outcomes would differ from adoptees of other races.
“Adoption is complex and has grief and loss and it impacts everyone, but the person who gets the least support and resources is the adoptee,” White Hawk said, adding that adoptees are often expected to feel grateful about their adoptions.
Landers said it’s a false narrative that taking Native children from their homes will result in them living a better life. Instead, resources should be allocated to help families stay together and prevent removal, Landers said.
This isn’t the Mississippi Choctaws’ first Supreme Court case. Over 30 years ago, the tribe brought a case that helped interpret ICWA and define tribes’ role in the custody of Native American children.
In Mississippi Band of Choctaw Indians v. Holyfield, the court ruled that through the ICWA, tribal courts have the power to hear adoption proceedings for Native children.
The case started when the tribe appealed the adoption of twins born to Choctaw tribe members who lived on reservation land in Neshoba County. The children were born hundreds of miles away in Harrison County, and the children’s parents agreed to their adoption by a non-native couple, the Holyfields.
The U.S. Supreme Court ruled in 1989 that tribes have jurisdiction over children domiciled on a reservation based on tribe membership or eligible membership, even if they aren’t physically present there. As a result, the Harrison County Chancery Court didn’t have the jurisdiction to approve the adoption for the twins.
“MBCI was party to the first U.S. Supreme Court case to uphold ICWA and has continued to support Congress’s constitutional duty to uphold the sovereignty of Indian tribes by joining a brief supporting the tribes involved in the latest U.S. Supreme Court case challenging ICWA,” the tribe said in a statement.