This post features a link to an article on ICWA and recent legal stuff connected to it. Here are a few extensive quotes. This was a law I hadn't heard about before so it was interesting to read about ICWA.
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As a kid, Mark Fiddler, the Chippewa attorney who wants to see ICWA overturned, made regular trips to his tribe’s reservation in North Dakota. There, Fiddler told me, he developed “an interest in the whole idea of how a person figures out … [their] identity … You’ve got these interesting and in some ways conflicting worldviews, with Indian culture and dominant Anglo culture.” Fiddler expressed to me, many times, that he cares about keeping that American Indian culture alive. But he doesn’t think ICWA is the way to do it. He says the law is usually applied in such a way that Indian families are automatically assumed to be best for Indian kids, but that’s not the reality.
As a kid, Mark Fiddler, the Chippewa attorney who wants to see ICWA overturned, made regular trips to his tribe’s reservation in North Dakota. There, Fiddler told me, he developed “an interest in the whole idea of how a person figures out … [their] identity … You’ve got these interesting and in some ways conflicting worldviews, with Indian culture and dominant Anglo culture.” Fiddler expressed to me, many times, that he cares about keeping that American Indian culture alive. But he doesn’t think ICWA is the way to do it. He says the law is usually applied in such a way that Indian families are automatically assumed to be best for Indian kids, but that’s not the reality.
Fiddler learned about ICWA as a law student. He thought it was a “cool idea—trying to hang on to Indian culture and trying to create law that gave parents some right to have their kids kept in the culture whenever possible,” he said. After he graduated, Fiddler worked first as a public defender before moving into family law, where he specializes in ICWA but also works on other adoption and foster-care cases. Soon, he started to identify problems with ICWA. “It was and is a good idea,” he told me, “but the devil is in the details.” He began to ask the same questions that federal judges in New Orleans will now have to answer: “Can you apply a law that says Indian families should be given priority?” And, he continued, “can you apply that in a way that's consistent with the idea that the child's interests come first?” No, he concluded, you couldn’t.
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In the 1950s and ’60s, through a federal program called the Indian Adoption Project, hundreds of kids were taken from reservations in western states—usually with parents’ consent, though the consent was not always fully informed—and placed for adoption, primarily with white parents in states on the East Coast. The goal here was not assimilation for its own sake, even if that was the outcome, Ellen Herman, a historian of adoption at the University of Oregon, told me. The project’s architects “viewed Native children as being ignored and segregated and left out of the opportunities provided by child-welfare services,” Herman said, so social workers thought they were doing the right thing by offering adoption to poor Native parents—but the result, still, was Native kids disconnected from their culture.
This wasn’t something that just happened on the margins, to a few kids in the worst situations. Research published by the AAIA in the 1960s found that up to a third of all Native kids had been placed in foster care, adoptive homes, or other institutions—and 90 percent of those kids went to white families. The findings shocked even Native American communities, who were forced to reckon with the pervasive, damaging attitude among white welfare workers that “Indian families aren't good enough to take care of our own children for some reason,” as O’Loughlin described it. ICWA was passed with the intention of countering this prejudice toward Native parents. National politicians began to note the disastrous effects of these policies as a burgeoning American Indian movement developed political power in the 1960s and ’70s. Eleven years after the federal Indian Adoption Project formally ended, Congress passed ICWA with bipartisan support.
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Many American Indians feel a responsibility to advocate for ICWA because they understand what happened to their communities before it existed. “I don’t think [there’s] an Indian around [who] doesn’t have family or friends who had kids taken unjustifiably,” Keith Harper, one of the attorneys representing the tribes in the Brackeen case, told me. Harper, a member of the Cherokee Nation who served as President Barack Obama’s ambassador to the United Nations Human Rights Council, in Geneva, lives in Chevy Chase, Maryland. “I think about that in our neighborhood. Imagine if one out of every three kids was unjustifiably taken from their families?”
This history is what makes so many people in Native American communities leery of white people who want to adopt, no matter how good their intentions. And it’s why they’re committed to ICWA, even if it is flawed. For Harper, the attacks on ICWA are direct attacks on his family: His youngest daughter is an “ICWA kid,” born in California to members of his wife’s tribe. Had she stayed in California and gone through the regular foster-care system, she would not have ended up with a Native family, Harper suspects. “She would’ve been raised without any sense of her culture,” Harper said. He maintains that “one of the pernicious lies about ICWA” is the trope that the law puts “tribal interests above the child’s interests.” He pointed to the life that he and his wife have provided for their adopted daughter: a private-school education, almost three years in Geneva, French fluency, and an attachment to her tribal culture.
The next paragraph sums up something that I've noticed, from time to time, over my life. Probably the easiest way to sum it up was that from Native American relatives I heard that the American Civil War was where the white racists in the North fought the white racists in the South over how to deal with black people and once that was out of the way they all agreed to start killing Indians. I.e. ... there are ways in which Native American experience and perspectives may not necessarily map onto the perspectives that progressive and reactionary narratives favored by ... well ... "pure" white people. My dad once said that American Indians never really had the equivalent of a Martin Luther King Jr. or a Booker T. Washington, there was no set of people providing a unified sense of being American Indian across tribal histories and differences. So with that tiny bit of personal context in mind:
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ICWA doesn’t neatly fit into the standard right-left political framework. In December, a bipartisan group of senators and representatives approved a resolution doubling down on their commitment to the law. Mark Fiddler, the family-law attorney who works on ICWA and is Indian himself, resents the charge that he must be a conservative because he’s allied with the Goldwater Institute. He supported Bernie Sanders in the 2016 Democratic primaries, and he thinks that his stance on ICWA fits squarely with his progressive worldview. “I think the liberals have a narrative of what’s happened to Indian people and tribes and genocide and historical trauma and treaty violations, and that’s all true,” Fiddler said. But, he continued, “you don’t say just because of that narrative that in this particular case with this child, the Indian always wins.” It’s a cause, Fiddler argued, about “the rights of the powerless and the marginalized children—the most vulnerable … I think that happens to be a liberal cause. It’s also a conservative cause.”
Instrumental to the law’s functioning has been the backing of the child-welfare community. In January, a group of 31 national child-welfare organizations filed a brief supporting the federal government and the four tribes in the Brackeen case, arguing that ICWA “has served as a model for the child welfare policies that are best practices generally.” Striking down the law, these groups argue, would have “devastating real-world effects.” They’re puzzled that it faces such opposition, given its near-unanimous support from child-welfare experts.
An interesting read, should you want to go read more of the article.
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