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ICWA was created to protect Native American families. Now it’s under attack.

Michelle Bender grew up in the same town as her Native American family, but never met them as a child. When her adoptive mother would take her to the local store in Seminole, Oklahoma, an older man, who often sat outside, would tell her she looked familiar.

As a baby, Michelle was adopted by a non-Native family who created what she describes as a safe and happy home. Yet, Michelle always felt like a part of her was missing. “I felt like I was a child with nowhere to belong,” she says. “I was a person who was wandering through this world without an identity.”

When Michelle finally connected with her family as an adult, she met the man who she had seen outside the store all those years ago; he was her great uncle. He told her that years ago, when he learned that his baby niece was up for adoption, he contacted Tulsa County DHS and told them he wanted to raise the child. The county would not even give him an application.

Today, Michelle works for her tribe, Seminole Nation, and helps place Native children who are up for adoption with family members or in other Native homes in accordance with federal statute. “I had a family member that would have raised me. I would have known my culture, I would have known my heritage. And I would have known my family. I would have had a sense of belonging. But the workers here in Oklahoma didn’t adhere to ICWA,” says Michelle.

Michelle’s adoption out of her tribe and away from her family happened in violation of federal law. When the Indian Childhood Welfare Act (ICWA) was passed in 1978, Congress admitted that 25-35% of Native children had been adopted out of their homes, families and tribes by White and non-Native families. Indian Country lost an entire third of one generation of children. According to the law, when a Native child’s home is deemed unfit, family members, other tribal members, and then other Native homes are to be prioritized for placement. ICWA has been praised by national child advocacy organizations as the gold standard for child welfare.

Yet today, ICWA, the only law protecting Native families, is under threat by a conservative-backed legal campaign to have it struck down by the Supreme Court. Four cases challenging the constitutionality of the Indian Child Welfare Act are currently in U.S. appellate court, including one case brought by the state of Texas.

As Trump’s inhumane policy of separating immigrant families made headlines this month, media outlets and social media posts have drawn parallels to the U.S. government’s long history of separating families of color. While Native American families are still recovering from the U.S. policies of both Indian Boarding School and forced adoption, this tragic chapter of U.S. history is far from over.

Even with ICWA in place, more than half of U.S. states are out of compliance. In South Dakota, Native Americans are less than 15% of the state’s population, but Native kids represent 50% of all children in foster care, with almost 90% of them being raised in non-Native homes. In Minnesota, Natives Americans are only 1.4% of the population, but Native kids represent 23.9% of the kids in the state foster care system.

From reporting to placement, racist and implicit bias put Native families at greater risk of losing their children. Compared to their White counterparts, Native families are twice as likely to be investigated when abuse is reported, twice as likely to have allegations of abuse substantiated, and four times more likely to have their children taken away. While some states have worked to remedy this inequity, this statistical disparity is actually growing, and the gap has nearly doubled since 2008.

While Native advocates say that the federal government needs to act to strengthen ICWA, a powerful conservative think tank is fighting to have the entire law declared unconstitutional.

Several national organizations are fighting to overturn ICWA, but the most well known and well-resourced is the Goldwater Institute. Goldwater is funded by Trump’s biggest campaign donor, the Mercer family, and other powerful political influencers including the Koch Brothers and the Devos Family. Over the past five years, Goldwater has relentlessly represented foster parents who want to illegally adopt Native children in violation of federal law with the hope that someday one of these White families will win their case in the United States Supreme Court. According to Goldwater’s website, ICWA violates the equal protection clause of the constitution by treating Native children “differently,” and the Supreme Court should “agree that this codification of substandard treatment should not stand.”

While Goldwater postures as promoting racial equity, the language they use to describe Native children and families is deeply racist. Deliberately drawing on stereotypes, they argue that Native children with low blood quantum or who haven’t lived on a reservation are not Native enough for the law to apply. Sadly, this argument is working. In the most famous ICWA case to date, the media and the court were obsessed with a Cherokee baby’s blood quantum. While blood quantum was factually irrelevant to the legal questions raised in the “Baby Veronica” case, the first sentence of the majority opinion of the Supreme Court reads, “This case is about a little girl (Baby Girl) who is classified as an Indian because she is 1.2 percent (3/256) Cherokee.”

The type of litigation that the Goldwater Institute mounts is extremely expensive. To say that a conservative advocacy organization—that has shown no other interest in either child welfare nor Native rights—is making this investment based solely on the concern for the wellbeing of Native children is highly skeptical. Many legal experts in Indian Country see the end goal of Goldwater’s attack on ICWA as a back door route to undoing the legal structure that currently protects tribal sovereignty.

“When you look at the complaints you can see that they are attacking, in a very aggressive way, not just ICWA’s application under the constitution, but tribal sovereignty and tribal federal trust responsibility,” explains David Simmons, Government Affairs and Advocacy Director at the National Indian Child Welfare Association. “They are not just gungho about trying to push ICWA out of the way, they are also trying to undermine all of the precedent, all the federal law, all the court cases that have established tribal sovereignty and govern Native rights today.”

American Indian reservations comprise only 2% of all land in the United States but hold an estimated 20% of oil and gas reserves, 50% of uranium reserves, and 30% of all coal west of the Mississippi. In 2009, The Council of Energy Resource Tribes estimated energy resources on tribal land were worth about $1.5 trillion. A possible and convenient side effect of the Supreme Court striking down ICWA is that the decision could also gut the legal precedent holding minerally rich lands in trust for tribes—opening the floodgates not only for predatory adoption of Native babies, but also resource extraction on tribal land.

Sandy White Hawk (Sicangu Lakota) was born before ICWA was signed into law. Of her mother’s nine children, eight were taken away. White missionaries got Sandy and, among other physical and emotional abuses, they told her that her Native family never wanted her. As an adult she reconnected with her tribe and became a staunch advocate for ICWA. Today, she helps organize gatherings and healing spaces for other Native children who were adopted out.

When I ask Sandy what would happen to Native families if ICWA was declared unconstitutional she goes silent. After a long pause she says, “I guess it would be just like it was before ICWA was passed. We would become targets again… It would be another collective wound.”