Exploring the Intersections of the Indian Child Welfare Act and the Reproductive Justice movement – a.k.a. Stop Stealing Our Children

For those of us who do Reproductive Justice work, the emotional rollercoaster week that closed with the Senate’s passage of S. 744 that coupled further unnecessary and unethical border militarization with Comprehensive Immigration Reform was a busy one.  After an already “good, bad and ugly” mix of Supreme Court (SCOTUS) decisions that came down: DOMA, the Voting Rights Act (VRA), and the lesser discussed, yet gut wrenching decision on (the misnamed) Baby Girl v. Adoptive Parents regarding the Indian Child Welfare Act (ICWA), we have much to reflect upon and lots of work to do.  The Supreme Court justices sided with the adoptive parents in the latter case, and effectively, against the biological father and the Indian Child Welfare Act. 

Whether we identify or are identified as Latinas in the United States because of our nations of origin or heritage, the term alone means many things. Many of us who call ourselves Latinas acknowledge and embrace, within or in addition to that identity, our Native or Indigenous heritage.  We are conscious of our historical and modern connections with Native communities, here in the US and/or throughout the countries of our family origin.

These histories are oftentimes not known, recognized or claimed within our families, communities or in this country. An argument can be made that attempts to perpetuate and deepen this disconnection between our communities serves the purpose of allowing status quo power structures to continue dominating and controlling them. As a show of our self-knowledge and our power from that, and in solidarity with our Indigenous sister communities, CLRJ feels a responsibility to speak to last week’s ICWA decision.

As RJ advocates, we support people’s rights to have children if they choose to, to not have children if they do not wish to, and to parent their own children.  We understand Reproductive Oppression to include any attempts to control certain communities by interfering with any of these three rights, and we also understand that reproduction is not limited to a biological process but includes issues such as foster care, immigration reform and the criminal (in)justice system.  We value our culture and communities, and when our children are removed from the heart of our communities and their connections to our culture is weakened, it becomes an issue of Reproductive Oppression.

The Baby Girl v. Adoptive Parents case demonstrates the interconnectedness among the diverse RJ issues that were all impacted via SCOTUS and Congress: from individual family formation, pregnancy choices, fathers’ parental rights and role in their partners’ decision-making, layered over community survival, cultural identity and ownership, political disenfranchisement, and migration and immigration.  One thing is clear: the traditional power structures continue to use the political system to validate and invalidate individuals and communities and undermine our self-determination.  Who is allowed pathways to citizenship without difficult restrictions or hoops to jump through?

To that end, this week, CLRJ is pleased to welcome guest blogger Coya White Hat- Artichoker, an RJ friend and ally and a SisterSong Board Member.  As Coya shares with us below, a nation’s or a culture’s survival often depends on not only our ability to reproduce, but also our ability to raise our own children with our traditions, values and community:

Last week’s Supreme Court ruling on the Indian Child Welfare Act (ICWA) while not a Coya_Blog_July 2013direct attack on ICWA, was a legal “end run” around Native identity and who qualifies for its protection. While being the highest court in the land, the Supreme Court demonstrated a lack of understanding of tribal sovereignty and tribal identity.  I define sovereignty as the ability to determine your land, borders, and people.  It’s important to understand Native people have a unique relationship to the United States government that is unlike any other group of people of color: It is a nation to nation relationship and each tribe is considered to be sovereign. This court ruling challenges the sovereignty of the Cherokee tribe.  As a queer Indigenous woman, who was adopted and kept in my own community, the cases last week directly impacted multiple parts of my identity.

For those who are unfamiliar with the Indian Child Welfare Act (ICWA), it is a federal law that seeks to keep American Indian children with American Indian families.  The intent of Congress under ICWA was to “protect the best interests of Indian children and to promote the stability and security of Indian tribes and families” (25 U.S.C. § 1902). ICWA sets federal requirements that apply to state child custody proceedings involving an Indian child who is a member of or eligible for membership in a federally recognized tribe.

The Court ruled that when the father, Dusten Brown, relinquished his parental rights, despite not knowing the mother was going to give the child up for adoption, it meant that he had no legal standing to begin with because they never were a “family”.  However, once he learned of the potential adoption, Brown filed for and won custody of his daughter by the order of the South Carolina State Supreme Court because of their (correct) interpretation of the ICWA.

This decision is tricky and insidious, in part because it does not directly challenge the validity of ICWA.  The Justices instead decided that Brown was ineligible for protection underneath that statute.  They questioned the relinquishing of parental rights, and also questioned Veronica’s blood quantum, although they stopped short of saying the child isn’t Native enough.  Blood quantum in Native communities can be a painful and difficult issue.  Blood quantum determines enrollment eligibility.  The problem with a “set” blood quantum that determines eligibility for Native enrollment is that, like all things continuously divided, eventually you will not have enough blood to qualify anyone for membership, which some people view as way to eliminate treaty obligations.  In response, many tribes have altered their enrollments processes to account for this to include any lineage line.  Each Indigenous nation within the United States establishes membership differently. The Cherokee determine citizenship through lineage. Veronica’s membership in the Cherokee Nation is not defined by a measured blood quantum but rather she is Cherokee because her father is an enrolled member of the tribe.  As a citizen recognized by the Cherokee Nation, Brown’s parental rights should be protected by the ICWA, as that is the intent of the law.  It was designed to protect Native children and Indigenous nations by prioritizing adoptions from within the tribe.  Instead the Supreme Court determined that they were never a “family” and because Brown did not have custody at any point previously, he was not entitled to the protection offered by the ICWA.  With that, the Supreme Court chose to use a technicality to ignore their tribal membership, in direct opposition to the tenets of tribal sovereignty.

The Supreme Court actually sent the case back to the South Carolina Court to make a ruling.  As of last Friday, the adoptive couple (which is misleading because the adoption began but was not finalized) petitioned the Supreme Court to have their ruling go into effect immediately rather than waiting the usual 25 day period.  SCOTUS agreed to have the ruling go into effect within seven days –  an unusual step for the Court.

To understand the insidious aspect of this ruling, we have to look to a larger context.  As Native people we have experienced high rates of child theft through the boarding school system as part of the “kill the savage, save the man” doctrine. This removal continues through the modern day racist foster care system that continues to steal our children, (sometimes justified by citing a family’s lack of ability to provide food for them) rather than working to support the family.  In South Dakota, my home state, the tribes and government are meeting due to their concern about the alarmingly high rates of Native children in the foster care system.

I grew up in a time when the children who had been adopted out en masse were returning.  Many only knew a last name or the name of one parent, there were ads in newspapers and people being introduced at pow-wows asking for anyone who might know who they were or how to find their family.  There are many who never returned.  Either way, there was a disruption to culture and community for these families and individuals that was systematic and intentional.

The United Nations defines genocide, in part, as the “(e) Forcibly transferring children of the group to another group”.  This ruling and the foster care issue in South Dakota and other states, leads me to believe that the attempts at genocide are not over.

In my opinion this case should have ended when the South Carolina Supreme Court decided in favor of Dusten Brown.  The case found its way to the US Supreme Court because the adoptive white couple refused to let the ruling stand.  They framed their fight in the racist context of “Saving Baby Veronica”.  My question is: Saving her from whom?

And this is part of the error of this decision – SCOTUS chose to ignore tribal sovereignty and tribal identity in favor of a white couple who refused to take no for an answer and had the privilege and resources to take up a court case.  This case was incorrectly racialized (problematic on its own) rather than seen from a sovereignty lens.

I do not believe in the borders that have been artificially created and imposed upon Native peoples across North and South America.  We are Indigenous people. As Indigenous people we have always traveled throughout the continent, without papers and without regard to the imposed borders between nations.  The parallel between what is happening to Native children in the United States and what is happening to immigrant children through the deportation process is eerie and is crucial to note in the context of the current issue of the ICWA.  I bring this up because as Indigenous people, we are being robbed of our children regardless of what side of the border they are on.  I also don’t believe this is an accident nor are we alone in this struggle.

The right to raise our children is a Reproductive Justice  issue.  This decision is not just a blow to tribal sovereignty but another example of the way our communities of color are told we cannot raise our children or we are dangerous to them.  The Court ruled against Dusten Brown because at no time were the biological mother, father, and child “a family”.   There was irony in SCOTUS’ ruling on ICWA being timed to coincide with the DOMA ruling. I am a queer woman who has watched the mainstream gay movement fight for years for our families to be seen as valid families. These two rulings, together, seem to show the Court is confused about how or for whom it will define family.  Although the gay marriage rulings stopped deportations of the partners of U.S. citizens, we continue to deport the parents of immigrant children.  I worry that these contradictory rulings could pit our communities against each other and erode opportunities for solidarity.  I offer this as point of caution because as a queer Native woman, I saw so much information from the mainstream gay community about the passage of DOMA with little commentary regarding VRA and none regarding ICWA.  We know that queer people of color cross all these communities and if we are not careful and if we don’t develop multi-issue strategies, these rulings can and will become pressure points against our ability to hold and create solidarity with one another.  When the highest court in the land parcels out small pieces of limited freedoms, we must take a larger view and see what’s really at stake and who’s really benefiting and to what end?

To learn more:

Coya was born and raised on the Rosebud Reservation in South Dakota; she is a proud enrolled member of the Rosebud Sioux Tribe. Coya has been doing activist work in various communities and movements since the age of 15.  More of her work can be found at: and you can follow her on Twitter @coyahope.

* For the purposes of this blog, we have used the terms Native, Indigenous and American Indian to refer to the same community of Indigenous people within the Americas.

*** Special thanks and lots of love to Angela Moreno for her literary midwifery and support in completing this piece.***