Who can adopt a Native American child?
June 5, 2019 1:08 PM   Subscribe

A group with links to the Kochs attacks the decades-old Indian Child Welfare Act, which provides priority in adoption for Native American children to Native American families. Naturally, wealthy white evangelicals have stepped in to be "better parents" than the extended family of two such children and provided them with their test case.

"Zachary, or A.L.M. as he is called in legal papers, has a Navajo birth mother, a Cherokee birth father and adoptive parents, Jennifer and Chad Brackeen, neither of whom is Native American. The Brackeens are challenging a federal law governing Native American children in state foster care: It requires that priority to adopt them be given to Native families, to reinforce the children’s tribal identity.

Last fall, a federal judge ruled in the Brackeens’ favor, declaring that the law, the Indian Child Welfare Act, was unconstitutional — in part, he said, because it was based on race."

[Content warning for several of the links below: child abuse by both state and private actors and death.]

About ICWA

The era of forced adoptions

American Indian boarding schools haunt many

Indian Child Welfare Act attacks are a threat to tribes

Presentation on ICWA, VAWA, and tribal sovereignty

The tribal and federal briefing in Brackeen v. Burnhardt

Adoptive Couple v. Baby Girl (the most recent Supreme Court decision interpreting ICWA)

Recently on Mefi: Native American rights and the plenary power doctrine
posted by praemunire (35 comments total) 34 users marked this as a favorite
 
From the UN Convention on the Prevention and Punishment of the Crime of Genocide:

Genocide means any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such:

A) Killing members of the group
B) Causing serious bodily or mental harm to members of the group
C) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part
D) Imposing measures intended to prevent births within the group
E) Forcibly transferring children of the group to another group.

posted by justsomebodythatyouusedtoknow at 1:28 PM on June 5 [74 favorites]


I wish there was a way to solve individual situations without making enormous precedent. This situation seems really sad all around.
posted by corb at 1:32 PM on June 5 [10 favorites]


"How can it not be in his best interest,” Mr. Brackeen said, “to grow up with a sibling who looks more like him than we do, who knows what he’s gone through and who shares his story more than anyone else?”
Um, does he not hear the cognitive dissonance in what he's saying? This is exactly what the boy would have had, if they'd let him be adopted by the Navajo family.
posted by The Underpants Monster at 1:36 PM on June 5 [40 favorites]


Yet another example of why the existence billionaires is fundamentally immoral and unethical.
posted by rockindata at 2:04 PM on June 5 [25 favorites]


I hit my head-exploding moment at this quote from one of the Brackeens' lawyers:
The act, he continued, “was about stopping unjustified breakups of Indian families, but this child has never lived in an Indian family.”
If you find yourself arguing that it's okay to take children from Indian families and give them to white people as long as you take them at the moment of birth, kindly throw yourself into the Sun, thanks.
posted by Holy Zarquon's Singing Fish at 2:07 PM on June 5 [87 favorites]


I have less of a problem with Zachary's placement, as ultimately no adopters with priority persisted in objecting. (ICWA doesn't forbid non-NAs from adopting NAs, just prioritizes adopters from the latter group.) The case of the little girl seems outright unconscionable--even without ICWA, to place with an unrelated family instead of fit close relatives who are willing to provide care shouldn't happen.

And, of course, nothing is done for the children's mother, whose life seems to be in utter disarray.
posted by praemunire at 2:11 PM on June 5 [11 favorites]


The Kochs are interested in this and cases like it for exactly one reason: sovereign tribes are interfering with their plans to build pipelines, mine in vulnerable areas, clear cut timber, pollute waterways and groundwater, and otherwise desecrate and destroy the American landscape in every possible way.

They are determined to eliminate the tribes as sovereign entities. Nothing less will serve their ends. This is intentional genocde in its purest form.
posted by jamjam at 2:11 PM on June 5 [127 favorites]


for exactly one reason

Come, now, you're being unfair: I'm sure they're racist, as well.
posted by praemunire at 2:15 PM on June 5 [87 favorites]


The white couple seem well-intentioned, but oblivious to their own participation in a long, racist tradition of genocide. Interpreting the law purely on the basis that any consideration of racial/ethnic groups is in itself racism seems a willful misapplication of justice here, but I think that's what you get when you try to create equality by breaking everyone out into pure individuals with no eye toward social & cultural history or context. The Enlightenment ideal of one universal (coincidentally, white, cis, male) individual subject as the basic component of the system of justice can only get us so far.

This was the real table-flip moment for me:
"Judge Kim said his Korean-born grandfather and father had understood that by coming to the United States, their offspring would lose parts of their heritage: 'But that’s part of the decision we make to immigrate to other cultures and countries.'

"Ms. Smith fixed him with a stony gaze.

"He hesitated. 'Ms. Smith, certainly your ancestors did not have the choice necessarily of the lands and territories that they live in,' he said. But, he continued, Jackie did. She had moved away from the reservation, making that choice 'for herself and her descendants.'"
posted by Kitty Stardust at 2:24 PM on June 5 [15 favorites]


Indigenous children should be placed with Indigenous families for foster care to start with - ideally with a family member, or with a member of their own community.

Of course, in Canada, we have the problem where too many Indigenous children are taken from families to be placed in foster care, instead of supporting those families. No one's children should be taken away from them because they are poor. ("Having an open CFS file in Manitoba can arise from something as simple as having the police show up at your front door or living in visible poverty" - article).

I'm not against all cross-racial adoption. I think it's a complex issue and should be dealt with more on a case-by-case basis, with attention to the specific cultural and historical relationships involved. But given the history of conscious genocide via adopting out of Indigenous children in both Canada and the US, I cannot support changing this law. It's there for a reason.
posted by jb at 2:27 PM on June 5 [18 favorites]


If you find yourself arguing that it's okay to take children from Indian families and give them to white people as long as you take them at the moment of birth, kindly throw yourself into the Sun, thanks.

I think they were trying to say - at least this is what the judge referenced - that it's complicated because the birth mom, Jackie, chose to absent herself from the Indian community, and at least in Zachary's adoption, though they didn't say about the little girl, Jackie wanted the boy to go to the Brackeens.

But the question of children's rights and choice is also a terrible one. When Jackie was deciding where she wanted her baby to go, that was a choice that was already made because the state had determined that the fact that the baby had methamphetamine in its system meant that Jackie was an unfit parent. But drug use during pregnancy is an incredibly complex question - for example, if you're on mental health meds - even if they are stimulants - and you're becoming or trying to be pregnant, the doctors talk a lot about how it would be a bigger harm to the baby for you to quit cold turkey and cause a withdrawal shock, or for the mom to be super depressed. Nobody tests the babies of middle class parents at birth to see if they contain Ritalin, no one even considers taking the children away on those grounds.

The article notes that the parental rights were terminated, but they don't say why - because the mom went to jail? Because she didn't visit enough? Because she had other children taken? Was there actually a history of abuse or did the state just decide they thought she might, because she was poor and a drug addict?
posted by corb at 2:33 PM on June 5 [25 favorites]


 If you find yourself arguing that it's okay to take children from Indian families and give them to white people as long as you take them at the moment of birth

to expand on part of jb's comment: one of the recommendations of the MMIWG inquiry is to end birth alerts. This basically means that authorities can snatch babies from mothers that they deem to be a risk. It's barbaric.
posted by scruss at 2:41 PM on June 5 [8 favorites]


the birth mom, Jackie, chose to absent herself from the Indian community

And, yet, when you think about it, it should not be possible to absent yourself from the Indian community by going anywhere on this continent--because they should still be the community everywhere. Jackie could only "absent" herself because the Native Americans where she went to live were murdered or forcibly removed.
posted by praemunire at 2:42 PM on June 5 [27 favorites]


FUCKING EVANGELICALS.

Sorry, but I'm up to here with this shit.
posted by rhizome at 3:09 PM on June 5 [34 favorites]


the birth mom, Jackie, chose to absent herself from the Indian community

And, yet, when you think about it, it should not be possible to absent yourself from the Indian community by going anywhere on this continent--because they should still be the community everywhere. Jackie could only "absent" herself because the Native Americans where she went to live were murdered or forcibly removed.


Yes, exactly this. It was the act of colonization that created the system in which, unthinkably, the identity and fate of Indigenous people is not self determined but determined by the state. To view Jackie as having had much meaningful choice in most areas of her life is to misunderstand the nature of colonization and its effects on the Indigenous population who had their land and way of life stolen from them. Part of this continued theft was having their children stolen from them, first placed in residential schools and then scooped up into the foster care and adoption system.
posted by hurdy gurdy girl at 3:18 PM on June 5 [19 favorites]


Is there a way to save more children from being raised by Evangelicals? I'm all for the Rapture getting them the fuck out of the way of progress.
posted by Abehammerb Lincoln at 3:59 PM on June 5 [15 favorites]


I'm pretty sure the only way to prevent more evangelical adoption of NA babies right now is to give them more Latinx ones that were separated from their parents (which is already happening).
posted by rhizome at 4:00 PM on June 5 [1 favorite]


What is hard about this topic is that a birth mom who does not want her child raised in a Native community can be overruled. Mom may have had a bad family situation (rape, incest) and placing her child with outsiders may be for the best in her opinion. There are many threads on here about the difficulties Native communities face with regard to drug and domestic abuse, etc.
posted by greatalleycat at 4:37 PM on June 5 [4 favorites]


Except the kids aren’t being prioritized into native families because of race. There are not similar federal rules for black, Latinx, or Asian kids.

Native kids are treated differently because of nationality. Native tribes have a unique position constitutionally. Those issues of tribal sovereignty should have precedence when considering competing constitutional rights and interests.
posted by Big Al 8000 at 5:03 PM on June 5 [36 favorites]


Like Judge Kim, I'm a non-white child of immigrants. I don't know what the "right" answer is in this case, but I can see why the ICWA makes Kim uncomfortable: it smacks of exactly the type of ethnic essentialism that mainstream American society uses, and has historically used, to exclude me, and people like me, from full membership in American society. As far as I'm concerned, my blood quantum says nothing about what my national or cultural affiliation "should" be, and to say otherwise is to validate those who would tell me to "go back to my country".

This is not at all to invalidate the concerns of the baby's Navajo family members---and, to reiterate, I really don't know what I'd like to see happen in this case---just to explain why some of us might be extremely hesitant to support anything that looks like it's enshrining ethnic essentialism in the law.
posted by rishabguha at 6:26 PM on June 5 [9 favorites]


Mom may have had a bad family situation (rape, incest) and placing her child with outsiders may be for the best in her opinion.

The final position on the list of priorities for adopters is members of another tribe.
posted by praemunire at 9:13 PM on June 5 [3 favorites]


But that’s one of the arguments against ICWA. If it’s not based on race, then why would a different tribal member be preferred?

Also the article focuses on race, but the 10th Amendment issues are substantial, in terms of what the federal government can order state officials to do to carry out federal law. For example, the federal government could not make local sheriffs run background checks for guns. ICWA makes states do a great many things.
posted by kerf at 9:20 PM on June 5 [1 favorite]


just to explain why some of us might be extremely hesitant to support anything that looks like it's enshrining ethnic essentialism in the law.

The "right" answer in this case is to really believe that tribal law governs a legally separate but physically coincident country present across all of the USA, and that any child who is eligible for citizenship in a tribe should be considered as though they were a dual French-American citizen who has been taken from their parents custody while in France - which is that all French laws would have to be followed until the French legal system said it was no longer involved.

And to also work with the tribes who are trying to remove the blood quantum requirements imposed upon their citizenship laws by the US government, as a completely separate issue not to be confused with whether this citizenship and legal system should be respected.
posted by the agents of KAOS at 9:23 PM on June 5 [18 favorites]


Mom may have had a bad family situation (rape, incest) and placing her child with outsiders may be for the best in her opinion.

The ICWA says "in the absence of good cause to the contrary" in lots of places, and this is where it would come into play.
posted by the agents of KAOS at 9:25 PM on June 5 [7 favorites]


When their younger son was 3, they began asking God how they could serve a higher purpose. One way to “rectify our blessings,” they thought, was to foster children and, eventually, to adopt one.

The white couple decided they wanted to be foster parents to help kids without a family. And then instead of fostering and adopting older kids who nobody wants, they got a baby who has a people and a family who do want him. And when their foster kid was placed in a native home that wanted him, rather than welcoming another foster kid who actually needed to be in their home, who didn't have anyone who wanted them, they fought in court to take him back from the family that wanted him.

And then, and this is the worst part, they did it again with his sister.

These people don't care about God. They care about Instagram and white supremacy.
posted by hydropsyche at 6:03 AM on June 6 [33 favorites]


And to also work with the tribes who are trying to remove the blood quantum requirements imposed upon their citizenship laws by the US government, as a completely separate issue not to be confused with whether this citizenship and legal system should be respected.

Yeah, I think in a lot of ways the actual problems are that the US treats tribes as nations when they feel like it or it's not super inconvenient to them.

Like, take tribal law. Tribes can make their own laws about misdemeanors on their own land. Oh, unless the perpetrator isn't a member of the tribe, in that case the FBI comes in to make sure the dastardly tribes aren't persecuting good Americans! Tribes can't make their own laws about things that are considered federal crimes - the FBI just gets to roll through for that.

And what other nation in the world is required by another, different nation, to maintain a blood quantum and refuse all immigrants?
posted by corb at 9:39 AM on June 6 [4 favorites]


The Kochs are interested in this and cases like it for exactly one reason: sovereign tribes are interfering with their plans to build pipelines, mine in vulnerable areas, clear cut timber, pollute waterways and groundwater, and otherwise desecrate and destroy the American landscape in every possible way.

What makes you say this?

There are areas in which their policy positions seem very tightly linked to a profit motive, such as advocacy for lower taxes and less environmental regulation. But other activities could be based just on their social preferences for "freedom," as they interpret that.

When you have billions to spend, you have the flexibility to try to bend public policies to your whims even when it doesn't have an economic payback.
posted by Mr.Know-it-some at 10:38 AM on June 6 [1 favorite]


There are areas in which their policy positions seem very tightly linked to a profit motive, such as advocacy for lower taxes and less environmental regulation. But other activities could be based just on their social preferences for "freedom," as they interpret that.

Funny how their social preferences for "freedom" seem to evaporate when it comes to abortion and LGBTQ issues.
posted by Etrigan at 10:46 AM on June 6 [12 favorites]


But other activities could be based just on their social preferences for "freedom," as they interpret that.

In what way does the Koch involvement here illustrate a committment to, uh, "freedom," more than threats to tribal sovereignty and/or other deleterious outcomes?
posted by rhizome at 10:48 AM on June 6 [3 favorites]




>Which raises the question: Is the Indian Child Welfare Act based on race?

Obviously it is not. If the law treated all Native Americans as one group. If they said it is preferable to have a Navaho child adopted by a Seminole family over that of a Chinese family, it would be race based and would be wrong. That would be treating all Native American as having the same culture.

Instead - from my understanding - the preference is based on tribe, not race. There are of course African-Americans who are accepted members of some Native American tribes including the Navaho.

Presumably it would be preferable for a African-American that is considered a Navaho tribe member to adopt a Navaho child over a Seminole family wanting to adopt the same child.

So "race" isn't a factor. It is culture.
posted by 2manyusernames at 3:25 PM on June 6


But ICWA does say that it is preferable to have a Navajo child adopted by a Seminole family over a Chinese family. The preference order is family, including extended family; other tribal members; and “other Indian families.”
posted by kerf at 9:38 AM on June 7


You are still confounding race and nationality. If a racially Chinese family is enrolled in a Native American tribe, then they are analyzed under ICWA as Native Americans. Being racially Chinese is not a relevant concern under ICWA. Tribal membership is. That the U.S. government has historically imposed particular blood quantum requirements for tribal membership is not the responsibility of the tribes.
posted by praemunire at 12:11 PM on June 7 [3 favorites]


If you want to do something, I would suggesting looking for native-run foster cares to support. I've started to send money and books to the Gather Our Children Foster Care Emergency Shelter and the Sacred Shawl Women's center, located on the Pine Ridge Reservation in South Dakota. Lakota Friends Circle is a 501(c)(3) organization based in Wanblee, SD, and also supports these orgs.
From the on the ground reports, the tribal government doesn't seem to prioritize women's issues, and the women leading these efforts are working to keep children warm, fed, and within the community. Just think of what they could do if they had the money paid to lawyers for this one case :/
posted by Hermeowne Grangepurr at 1:53 PM on June 7 [6 favorites]


"And the only explanation is that we don’t have the right color of skin?"

What do you bet that they don't even see color.
posted by The corpse in the library at 5:25 PM on June 8 [3 favorites]


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