ALAMOSA — On a windy Tuesday afternoon, a group of Native American students attending Adams State University — all members of the Indigenous Students Club — stood along First Street near McDaniels Hall on the ASU campus.
The students organized a protest and petition signing ahead of the Indian Child Welfare Act of 1978 being challenged in front of the Supreme Court today.
Cars drove by. Some drivers honked and waved. Others simply slowed down and looked.
For their part, the students smiled, some rather shyly, and held their signs higher so that people could see what was written. Two words and an acronym were repeated in some fashion on almost every sign, conveying a message of great significance to the group of students, their families, their communities and their tribes.
Those two words and acronym were Native Children and ICWA.
Nizhoni Begay is an ASU senior pursing her degree in agriculture and education. About ten days ago, Nizhoni, whose home is in Arizona and is a member of the Navajo Nation and part Chiricahua Apache, was scrolling through social media when she landed on a story that she felt was alarming.
Today, the Supreme Court of the United States is hearing arguments challenging the constitutionality of the ICWA — a federal law that regulates custody proceedings involving “Indian children.”
The challenge was filed by the states of Texas, Louisiana and Indiana along with three individual plaintiffs.
Known as Haaland v. Brackeen, the case centers on ICWA’s provision that “In any adoptive placement of an Indian child under State law”, a preference shall be given to that child being adopted by a member of the child’s extended family, other members of the Indian child’s tribe or other Indian families. Essentially, that should be the standard practice unless there is a very good reason to do otherwise.
The law has been in place for 44 years.
The challengers argue that this provision discriminates against non-Indian adoptive families based on racial classifications and thereby violates the equal protection component of the Fifth Amendment.
The federal government and briefs from 492 tribes contend that ICWA’s placement preferences are political classifications — not racial — which means constitutionality is not an issue. The preference to place Native American children with other native American families are related to the government’s interest in seeing native American children placed in settings most likely to foster a connection with their tribes and culture.
Although the nuance and complexity of the case language may be confusing to anyone outside of the legal profession, Nizhoni immediately understood the core implications and contacted other friends in the Indigenous Students Club. Those students then contacted their families. All were shocked to learn that none of their families were aware of court hearing.
“Whoever is representing us is not top-tier,” Nizhoni said. “The president (of the Navajo nation) has not even told us anything.”
The students felt compelled to speak out against overturning a law that kept adoptive native American children in native American families and tribes and, within a few short days, a peaceful protest and petition signing was organized, largely by Gabrielle Vigil, a Jicarilla Apache, single mom of two and junior at ASU pursuing a degree in forensics.
The irony of when the hearing is being held — in the middle of Native American Heritage Month ‚— was not lost on Vigil.
“We are supposed to be celebrating and instead we are fighting — again — to keep our culture alive,” Vigil said. “It saddens me that not many people know what is going on in the Supreme Court on Nov. 9. If this was an issue for white people, this would become viral. But because it’s a native issue, I feel like it’s being underrepresented in the public eye. That is why I had this idea to protest, to build awareness around such an important social issue. But the focus isn’t on the protest. The focus is on protecting the ICWA.”
“There’s the quote ‘save the man, kill the Indian,’” said Kaibah Robinson, an ASU senior majoring in kinesiology and member of the Navajo nation who is also part Chiricahua Apache.
“This is just another way to push assimilation. It was boarding schools and now it’s this, a modern way to force us to assimilate. Our identity is in our culture and our culture – our language, our traditions — is on the brink of extinction. Sending babies to non-Native families just pushes that even further.”
“It has a domino effect,” said Chenoa Candy, a Arapaho Cheyenne ASU student studying to be a nurse. “It’s another attack on our people. It’s hard to think about a time when that hasn’t happened. First, it was our land. Then our women and now our children?”
“History repeats itself,” Vigil adds. “Some people are very scared. They say this is the beginning of a new cultural genocide. It’s the beginning of a new end.”
“Growing up in our culture is very important,” said Taylor Candy, a freshman studying elementary education. “It connects us to our ancestors. It’s horrifying to think of growing up without that.”
“I was very fortunate,” said Jimmizan Red Horse of the Navajo nation, a senior who is majoring in accounting. “I grew up with my family, my community and my tribe. I grew up knowing my language. Those things make me who I am. When I have hard days and get down, I draw strength from my ancestors. That’s what makes us so resilient and able to still survive so many things. It’s very important to understand where you come from. Understanding that keeps you moving forward. To think about not having all that…that’s a hard thought. That’s a hard thought.”
“ICWA is important for cultural sustainability,” said Ilyani Big-Crow-Abourezk, a student pursuing her PhD in counseling at ASU and studying remotely from South Dakota.
Big Crow-Abourezk is also the granddaughter of James Abourezk, the man who authored and brought the ICWA to legislation.
“Its purpose is to keep Indigenous children within their culture,” Big-Crow-Abourezk said. “In the past, Indigenous children were removed forcefully from homes during the boarding school Era. They were removed from their families. They were stripped of their identity as Indigenous people. They missed the prime formative years of living as an Indigenous person and missed learning the culture, our style of parenting, just our way of life.
“When children are removed from their homes, they are often placed in non-Native homes and often not connected with their culture. Another form of cultural genocide.
“The Indian Child Welfare Act is a way to protect Indigenous babies and children from losing connection to their culture. We are a collectivist culture and take care of our own family and others. If a child is removed from their birth parents, any one of us would gladly take them in and raise them as our own and keep them within our culture.
If ICWA is taken away, a threat to our cultural identities comes in. Children can be removed and placed anywhere. They will never know their family, culture, ways of life. It's devastating to think of this being taken away. It will create immense grief of our people and can lead to another attempt at cultural genocide.”
The case is complicated. Numerous child welfare and advocacy groups have come out in support of the ICWA, warning that indigenous children separated from their families in the foster care system already suffer from feelings of isolation and depression. Allowing them to be permanently separated — via adoption by non-native families — from their cultural and tribal roots places them at even greater risk of harm. Others advocating for indigenous rights, such as the National Council on Urban Indian Health, see challenges to ICWA as part of a broader effort to attack the foundations of Federal Indian Law.
There is the general consensus that the ICWA has largely b-partisan support, which may help sway the Supreme Court in the direction of upholding the law.
Nonetheless, after hearing arguments on Wednesday, the court’s decision is expected sometime in June of 2023. The answers to the questions raised in the case not only will decide the validity of a four-decade-old statute, but also will have significance impacting 492 tribes and sovereign nations that could extend well beyond ICWA.