Excerpted From: Lucia Kello, “The Past Got Broken Off”: Classifying “Indian” in the Indian Child Welfare Act, 36 Journal of Civil Rights & Economic Development 361 (Winter, 2023) (225 Footnotes) (Full Document)


LuciaKelloIn her 1993 novel, Pigs in Heaven, Barbara Kingsolver chronicles the story of an American Indian child, Turtle, and her young, white, adoptive mother, Taylor Greer. In what has been criticized as a controversial imagined fact pattern, Kingsolver writes that while stopped in a parking lot in the middle of the night, Taylor is approached by an American Indian woman holding a baby. Rather mysteriously, the woman informs Taylor that the baby's mother died and the baby was being abused, upon which Taylor notes that “it looked like someone had been hurting [the woman] too.” After placing the baby in Taylor's arms, the woman gets into an unlit car and drives off into the darkness. To her surprise, Taylor begins to bond with the child and eventually seeks to adopt her. However, when a Cherokee attorney, Annawakee, learns of the adoption, its legality is threatened by the ominous Indian Child Welfare Act (“ICWA”), which dictates (for the novel's purposes) that “you can't adopt an Indian kid without tribal permission.”

The novel manages to capture--though not without an artistic license--the conflicting interests often involved in the adoption of an American Indian child by non-American Indians. The line between reality and representation is a thin one at best here, for the novel's real-life counterpart is often just as dramatic and polarizing. Nevertheless, most American Indian children are not bestowed upon young women in the middle of the night, and Barbara Kingsolver--though certainly knowledgeable about American Indian issues--is a white woman from Maryland who has never adopted an American Indian child before.

Much of what Kingsolver correctly shares, however, pertains to the history and intent of the ICWA. Annawakee describes the Act as a response to the “wholesale removal” of American Indian children through federal policies of “dividing up families” and “selling off land.” Indeed, this “wholesale removal” most notoriously took place during the “Boarding School Era,” when, from 1860 to 1973, American Indian families were coerced by the federal government into sending their children off-reservation to live at boarding schools. These government-run establishments aimed to introduce American Indian children to the “habits and arts of civilization” while forcing them to abandon their traditional languages, cultures, and practices. Although the policy was framed as a peaceful solution to the “Indian problem,” the boarding school era gave birth to the more well-known motto: “Kill the Indian, Save the Man.”

Though the schools began closing their doors in the 1970s, the removal of American Indian children from their tribal lands persisted through their overrepresentation in the child welfare system. By 1973, 25-35% of all American Indian children nationwide were removed from their families, and 75-80% of American Indian families living on reservations lost at least one child to the foster care system.

These figures are now understood as the product of cultural divides and presumptions of child neglect by American Indian parents or caretakers. For instance, where abuse had been reported, American Indian parents were twice as likely to be investigated and twice as likely to have allegations of abuse substantiated, and American Indian children were four times more likely to be placed in foster care than white children. What is more, 90% of children removed from their American Indian families were placed in non-native homes.

Further, although a child's removal from the home must serve the child's “best interests,” higher percentages of substance abuse, mental health issues, and self-injury were reported among American Indian children subjected to this system. Indian children placed in foster care, adoptive homes, and institutions experienced a suicide rate twice that of the reservation rate and four times that of the general population. Many well-known studies have since determined that the loss of cultural identity seriously compounds these negative outcomes.

A more in-depth analysis of boarding schools and their aftermath provides the historical context for Annawakee's poignant assertion: because generations of American Indians “never learned how to be in a family,” despite family “being their highest value,” “the past got broken off.” In less poetic terms, these policies amounted to an “assault on Native identity,” inflicting intergenerational trauma that persists to this day.

To address this pervasive crisis, Congress enacted the Indian Child Welfare Act in 1978. The Act provides “minimum federal standards for the removal of Indian children from their families,” where compliance with the ICWA in all state custody proceedings is required. In these proceedings, the ICWA mandates procedural and jurisdictional safeguards that prevent the breakup of the American Indian family. In so doing, the Act preempts state child welfare laws in acknowledgment of the consequences former federal policies have had on tribal life.

The ICWA has withstood opposition since its inception, most routinely from the LDS Church and the Catholic Church. The Act has also faced its fair share of legal challenges, the most highly publicized of which is the 2013 Supreme Court case, Adoptive Couple v. Baby Girl. There, the Court severely limited the reach of the ICWA by finding several of its provisions inapplicable if the parent seeking their invocation never had legal or physical custody of the American Indian child. In applying its holding to the facts, the Court ruled that an incarcerated American Indian father who never had custody of his daughter could not invoke his or his tribe's right to block the child's adoption.

As Adoptive Couple is only the second ICWA case ever heard by the Supreme Court, it has signaled a “new interest in the law,” which in turn inspired a wave of challenges to the ICWA that have placed it in a precarious position. These challenges are supported and often funded by wealthy interest groups, the most notorious of which is the Goldwater Institute. Most recently, the institute bankrolled Brackeen v. Zinke (now Brackeen v. Bernhardt), a case challenging the constitutionality of the ICWA in its entirety. There, the plaintiffs claim that the statute's definition of “Indian” is a racial classification prohibited by the Fourteenth Amendment, despite precedent that says otherwise. Consequently, the U.S. District Court for the Northern District of Texas became the first federal court to declare the ICWA unconstitutional. Although overturned by a three-judge panel, the Fifth Circuit agreed to rehear the argument en banc, this time with all 17 judges present. If appealed once again, many predict that given the publicity of Adoptive Couple, the case is likely to reach the Supreme Court.

Further, although required to comply with the Act, states have been circumventing its provisions since 1982 through a judicial “loophole” known as the Existing Indian Family Exception” (EIFE). In essence, the doctrine limits the applicability of the statute to those cases where a child, or the child's family members, have demonstrated “sufficient Indian ties.” In other words, even though the Act defines who is considered an “Indian” child, the EIFE allows courts to question whether a child is “Indian” enough.

This Note maintains that the arguments underlying Brackeen, the EIFE and Adoptive Couple conflate race and ancestry, leading to the misclassification of “Indian” in the ICWA as racial rather than political. Because of Adoptive Couple, it is imperative for the ICWA's survival and effectiveness that courts utilize the opportunity presented by Brackeen to finally clarify that “Indian” within the ICWA is a political classification. This decision would serve the best interests of both American Indian children andAmerican Indian tribes by recognizing the significance of cultural ties to the sovereignty and survival of these distinct, political bodies.

Part I will provide an overview of the structure and provisions of the ICWA and elaborate on legal precedent regarding how statutory definitions of “Indian” have traditionally been categorized. Part II will demonstrate how Brackeen and the EIFE are based on the misclassification of “Indian” as a racial group, which poses a serious threat to the ICWA when considered alongside Adoptive Couple. Part III will discuss the nuances between ancestry and race, and further posit that given the historical role ancestral inquiries have played in defining American Indian identity, ancestral inquiries can be reframed as a meaningful way for tribes to renew intergenerational bonds, restore historical continuity, and self-define their political status. Finally, Part IV discusses the potential benefits of distinguishing between race and ancestry when applied to kinship care within the child welfare system by placing cultural ties central to the best interests of the child.

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In most situations where the ICWA is found to apply, there is a high risk that a family, whether adoptive or biological, will be broken up. And in many situations, one cannot help but sympathize with well-meaning parents whose efforts to give a child a better life are thwarted. However, while what it means to be a “family” is always changing, the formation of American Indian families has been prevented by a history that cannot be undone. In acknowledgment of this history, the federal government enacted the ICWA, which not only prevents the breakup of American Indian families but better facilitates the ability of tribes to renew intergenerational bonds destroyed by the boarding school era and culturally incompetent child welfare practices.

Further, although blood quantum had once been used by the federal government as a means to identify the tribes it aimed to exploit, it has been repurposed into a way for tribes to identify those eligible for membership and to place those individuals in relation to that history. What that individual does as they mature into an adult is up to them, but tribes must have the opportunity to renew those bonds before the child's placement with a non-American Indian family occurs. As demonstrated by numerous studies, this has been proven to better ensure that the best interests of American Indian children are met, especially as they often suffer mental health consequences after placement with non-American Indian families that are compounded by the cultural displacement they may feel. It is also a way to ensure that the best interests of tribes are met because their connections to subsequent generations are crucial to their longevity and survival.

In conclusion, classifying “Indian” as political within the ICWA would strengthen the Act from both future and current challenges by rendering the EIFE irrelevant and disproving the main argument underlying the statute's opposition in Brackeen and Adoptive Couple. In so doing, it would also preserve the agency currently afforded to tribes by their ability to define and regulate who is “Indian,” and it would strip courts of the authority to question whether a child is “Indian” enough. Lastly, strengthening the ICWA would continue to facilitate conversations regarding the nuances of race, culture, and ancestry and the important roles they play in determining the best interests of a child.

The enactment of the ICWA is one step towards accountability for a country with a history of oppression, subordination, and exploitation of marginalized groups. For American Indians, the consequences of these policies have allowed for the past to get “broken off,” but in Brackeen, our legal system has an opportunity to ensure that it does not become forgotten.