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Episode: Supreme Court Affirms ICWA

Author: Matika Wilbur, & Temryss Lane
Duration: 00:14:15

Episode Shownotes

Send us a textBig news! The Supreme Court has ruled in favor of leaving the Indian Child Welfare Act intact. This is a major victory for Indigenous rights and sovereignty. In this special episode, Matika is joined by Sedelta Oosahwee (Mandan, Hidatsa, Arikara and Cherokee) a Senior Program and Policy

Analyst and Specialist at the National Education Association who was recently appointed by the Biden Administration to the National Advisory Council on Indian Education to discuss the ruling and what it means going forward. +++Shout out to our All My Relations team that makes this possible. Produced and edited by Jonathan Stein, music by Max Levin, mixing by William McGuigan and social media by Lindsey Hightower. Support the showFollow us on Instagam @amrpodcast, or support our work on Patreon. Show notes are published on our website, Allmyrelationspodcast.com. Matika's book Project 562: Changing the Way We See Native America is available now! T'igwicid and Hyshqe for being on this journey with us.

Full Transcript

00:00:09 Speaker_01
Sorry. Hello, relatives. Welcome back to another episode of All My Relations. Today is a very special day, and we are interrupting our regular show schedule to celebrate and acknowledge that we have big, big, huge news.

00:00:44 Speaker_01
And maybe you've already heard, but this morning, the Supreme Court ruled to uphold and affirm the Indian Child Welfare Act. Yay. It's a really big deal.

00:00:55 Speaker_01
So I asked my good friend, Siddhalta Asawi, who is currently in DC, to come on the show and talk about why this is such a big deal. Hi, Siddhalta. Hello, all my relations.

00:01:09 Speaker_01
And before we go any further, I just want to read you a little bit of Siddhalta's bio. Siddhalta is Mandan Hidatsa Rekharan Cherokee and a senior program and policy analyst and specialist

00:01:21 Speaker_01
at the National Education Association and was recently appointed by the Biden administration to the National Advisory Council on Indian Affairs. So what an honor it is to have Siddhalta here to talk with us.

00:01:35 Speaker_01
Let's just start by explaining why this is such a big win.

00:01:39 Speaker_00
So before we talk about that, let's talk about what ICWA is.

00:01:42 Speaker_00
The Indian Child Welfare Act was passed by Congress in 1978, and it 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.

00:01:57 Speaker_00
And in passing ICWA, Congress moved to protect the best interest of Indian children, promote the stability and security of Indian families.

00:02:04 Speaker_00
And one of the most important parts here is the preferences do not mean that the child has to be placed in a Native home, but the process gives recognition and does recognize tribal sovereignty and defers to its authority, which is one of the main parts of this case that was heard last spring, I guess, or a couple months ago.

00:02:22 Speaker_01
Right. Right. That this case is also is while it's about the protection of Native children, it's very much about upholding tribal sovereignty. Yeah. This case is about tribal sovereignty.

00:02:34 Speaker_01
And today, the Supreme Court affirmed the 1978 legislation, which gives preference to Native Americans in the adoption process and does not discriminate on the basis of race.

00:02:45 Speaker_01
The important thing to understand here is that ICWA draws classifications based not on race, but on connections to tribal groups. Under the Constitution, those tribal groups are separate sovereign nations.

00:02:57 Speaker_01
So essentially, we Native people are a political group. We are card-carrying tribal citizens, which is why the court rejects all of the challenges to the Indian Child Welfare Act.

00:03:08 Speaker_01
And Justice Barrett wrote, quote, some on the merits and others for lack of standing.

00:03:13 Speaker_00
Yeah, and I think it's important to acknowledge that prior to ICWA, the Association of American Indian Affairs reported that 25 to 35 percent of all Native children had been separated from their families and placed into foster homes, adopted homes, or institutions that were non-Native.

00:03:28 Speaker_00
And I think that the other part I want to point out is 1978 is not ancient history. I know for a lot of younger people, anything before 2000 is like old and ancient.

00:03:38 Speaker_00
I'm not going to age myself too much, but I was born right around this time, and I'm not that old. So, you know, this is something that's really important today.

00:03:45 Speaker_00
And then I think it's important to note that even four decades after ICWA was enacted, Native children are still overrepresented in the foster care system at a rate of 2.7 times greater than the general population.

00:03:57 Speaker_00
So, I think that's a very important point as we continue this conversation.

00:04:01 Speaker_01
Right, because during the assimilationist era of the 1800s, what is now known as the United States, as a federal policy, took Native people from their homes and placed us in government-run boarding schools that were dedicated to assimilating Native people into dominant American culture, and in very brutal and violent ways.

00:04:21 Speaker_01
General Pratt, in fact, the architect of these schools, described the policy to, quote, kill the Indian in him and save the man.

00:04:30 Speaker_01
He also said that, quote, transfer the savage born infant to the surroundings of the civilization, and he will grow to possess a civilized language and habit. And that kind of thinking and policy really continued into the 1900s.

00:04:47 Speaker_01
In the 1950s, the next wave of anti-native sentiments came to fruition.

00:04:54 Speaker_01
with federal policies that explicitly aim to terminate the inherent sovereignty and political rights and thereby the identities of tribal nations with the termination era, which my grandmother, you know, personally fought against, which many of our relatives fought against, right, so that we could maintain our nationhood.

00:05:13 Speaker_01
And then

00:05:14 Speaker_01
With the help of the church and white-run adoption agencies, the federal government and what is now known as the Indian Adoption Project between the years of 1958 and 1976 encouraged the removal of Native children from their families and placed them in non-Native families.

00:05:33 Speaker_01
So according to a 1976 report by the Association on American Indian Affairs, between 1941 and 1967, as many as one in three Native children were taken from their families. And the government did this because it was cheaper, right?

00:05:51 Speaker_01
The cost of government-run boarding schools and sending one kid was about $100,000 per child. So taking care of the Indian problem, as the federal government would have said, is we have to assimilate. We have to have less.

00:06:06 Speaker_01
It was extinction-based policies. And It's unbelievable to me that still to this day, we are still fighting assimilation policies, right?

00:06:18 Speaker_00
Yeah, I mean, I'd like to say that we've come a long way from that assimilation era. But, you know, I don't I don't think we have because as today's ruling notes, we're still having to have these conversations.

00:06:27 Speaker_00
And the Supreme Court is still ruling on our tribal sovereignty.

00:06:30 Speaker_01
It's really scary. You know, there's this great article in The Atlantic. These two writers point out that

00:06:37 Speaker_01
Quote, Congress today has the substantial and sweeping powers over Native nations and Native people, including the authority to abolish tribes and tribal reservations and to expand or restrict tribal authority.

00:06:51 Speaker_01
And these powers come from a series of Supreme Court decisions in the late 1800s and early 1900s that were based on racist views about American Indians, that Congress needed virtually unlimited authority over American Indians affairs because Natives were not equipped to govern themselves.

00:07:08 Speaker_01
The court reasoned that natives' quote weakness and helplessness gave the federal government broad domain over them. Later cases pointed that natives conditioned to tutelage or dependency. So we are still this nation within a nation, right? Right.

00:07:24 Speaker_00
Or as some of the court cases have said, a domestic-dependent nation. And even today, as this points out, we're still fighting assimilation-era policies that are threats to our sovereignty.

00:07:34 Speaker_00
So I think we have to really think about the power that Congress has, the power we have to elect people to Congress, the Supreme Court, and all of that and how that plays into our indigenous nationhood. POTUS today made a comment.

00:07:48 Speaker_00
He said the Indian Child Welfare Act safeguards that which is most precious to all of us, our children. I appreciate that he went on to note our nation's painful history looms large over today's decision.

00:07:58 Speaker_00
In the not so distant past, Native children were stolen from the arms of people who loved them. They were sent to boarding schools to be raised by non-Indian families, all with the aim of erasing who they are as Native people and tribal citizens.

00:08:11 Speaker_00
These were acts of unspeakable cruelty that affected generations of Native children and threatened the very survival of tribal nations. The Indian Child Welfare Act was our nation's promise never again. And I appreciate that.

00:08:23 Speaker_01
No, I do. I really appreciate that. I mean, it's a step in the right direction, right? Indeed, you know, that's what this conversation is about. And while it's been wrapped up in tribal sovereignty, really for capitalist gain for oil, right?

00:08:36 Speaker_01
Like this, this case is about trying to remove Indian authority over land. But Let's not talk about that. Let's talk about the safety and welfare of our indigenous children. And for many of us, this is incredibly close to home.

00:08:51 Speaker_01
Even Secretary Haaland in her statement today said the United States has a moral obligation to protect Indian children and families and safeguard the future of Indian tribes.

00:09:01 Speaker_01
And I know, you know, for me on a personal level, I have many relatives that were adopted out of our communities and many relatives who have done work to try to come home.

00:09:12 Speaker_01
But there's so many people, you know, during that era, the one in three era that were adopted out that, you know, we still to this day experience the pain of what it feels like to have your family fractioned and shifted forever.

00:09:27 Speaker_01
And I know you too, Sadel, to have personal experiences with this.

00:09:32 Speaker_00
Yeah, we were watching, I was watching this case very closely. I have two nephews that were both adopted through ICWA. My mom is Three Affiliated, my dad is Cherokee.

00:09:41 Speaker_00
And what's beautiful about the story is that we have one child who was adopted through the Cherokee Nation and ICWA, and the other one was adopted through the Three Affiliated tribes and ICWA. They were the vehicles used to adopt both of them.

00:09:52 Speaker_00
And, you know, I remember my grandma used to live with us, and at one point I had some aunties visiting, and they were in the house, and it was this four generations under our roof together, and we were laughing and talking and sharing.

00:10:03 Speaker_00
And I think that's what it was about. I remember looking at them thinking, this is what it's all about. During the pandemic, my dad was able to teach one of them Cherokee. My mom was teaching the other one Mandan, Arikara, Hidatsa.

00:10:14 Speaker_00
She was teaching them, and it was beautiful because I know that this is going to continue to be attacked. It will continue to face threats. There was one 10 years ago.

00:10:22 Speaker_00
And I think this one was so scary because I remember thinking, what if something had happened 10 years ago and this had been overturned? Would those boys be in our life? I cannot imagine our world without them. I can't imagine life without them.

00:10:33 Speaker_00
And you know this, and anyone who's spent more than five minutes with me, if I like you, I've probably shown you pictures. I've shown people on like the Metro pictures. I'm like, look, these guys are so cute. I talk about them all the time.

00:10:44 Speaker_00
But it's just, they've taught us so much, too. And I worry about what happens to other kids like them in the future if ICWA gets overturned. And what does that mean for them? And how will they be able to connect?

00:10:55 Speaker_00
Because, you know, these boys are loved by so many. They have so many aunties, grandmas, grandpas. It's a beautiful thing to see. And I think that's what we have to remember at the end of the day.

00:11:05 Speaker_00
These are kids, these are families, and it really is in the best interest for them to be with people from their community.

00:11:10 Speaker_01
Yeah, to have the opportunity to develop those kinship systems, right? And to know what it means to belong to a place-based identity. And really, ICWA is meant to provide protections against

00:11:27 Speaker_01
the systemic bias and to reduce the flow of native children into environments which aim to displace and assimilate them into the dominant Western culture. Native children belong in their homelands, right? Yep, they do.

00:11:44 Speaker_01
They belong in those kinship systems.

00:11:49 Speaker_00
And when they're not in them, they can tell and they know. Exactly.

00:11:52 Speaker_01
But today is a big day, right? The court agreed with tribes, leaving the law intact.

00:11:59 Speaker_01
And for Indian country, I know for me, I've felt very nervous about this case because I live on tribal land, because I have built my life around tribal sovereignty, many of us have.

00:12:13 Speaker_01
And so what does it mean when our tribal sovereignty is constantly under attack? So for me, I took a deep breath today.

00:12:19 Speaker_01
And I wanted to come on air and share that joy with our relatives, you know, and just say, you know, take it, take another deep breath as the aunties would stay to me in Standing Rock, you know, like, don't let your tits fall because there's going to be more work to do.

00:12:35 Speaker_01
You know, there will come a time where we have to continue to pick our tits up and keep fighting. So, you know, I'm not planning on getting droopy over here anytime soon.

00:12:48 Speaker_01
But for today, you know, I could sigh this little sigh of relief and it feels good. You know, it feels really good.

00:12:54 Speaker_00
It does. And I think it's okay to acknowledge that and to just enjoy today and to celebrate today because we will have to keep fighting.

00:13:05 Speaker_01
Thank you to the AMR team, Jonathan Stein, William McGeegan, and Lindsey Hightower. Big T, greet seed, and wado to our guest, Siddelta Ossowi.

00:13:14 Speaker_01
Sending our love out to Adrienne, who could not join us today since she's on vacation with her family, but I know she is equally rejoicing. We chatted with her about this on a previous episode.

00:13:24 Speaker_01
Native children belong in native homes, along with Kendra Potter and Brooke Sweeney. So feel free to check that out if you want to take a deeper dive on this subject.

00:13:32 Speaker_01
Reminder, you can always support the podcast on Patreon or follow us on Instagram at AMR Podcast. And also, you know, my book, Project 562 Changing the Way We See Native America is now available and it's now a New York Times bestseller.

00:13:47 Speaker_01
So, hey, excited about that. We really appreciate you being on this journey with us, relatives. Take a deep breath. say some blessings and some prayers for all our Native children who are going to get to stay in Native homes as a result of this.

00:14:00 Speaker_01
It's a big win for Indian country and I'm really glad that y'all tuned in to celebrate with us. So have a good day. I hope.