(RNS) – As the Supreme Court hears Brackeen v. Haaland on Wednesday, November 9, what is at stake for most interested parties is India’s decades-old Child Welfare Act, considered by many be the “golden rule” of child protection policy. Passed by Congress in 1978, the law was intended to prevent Native American families from being separated by state child welfare agencies and private adoption services and instead seek placement for children in foster homes. a federally recognized tribe.
But some also see Brackeen v. Haaland as a matter of religious freedom, and not just because deep down, as the New York Times says earlier this week, “the Solomonic struggle over the fate of a child”.
“It’s absolutely about culture/religion,” Robert Miller, a law professor at Arizona State University’s Sandra Day O’Connor College of Law, told Religion News Service.
“It’s about raising your citizens for the future to preserve your language, your cultural practices. You and I could easily put the category of religion on that,” said Miller, a registered citizen of the Eastern Shawnee Tribe and tribal judge.
The plaintiffs in the Supreme Court case, Jennifer and Chad Brackeen, are a white couple living in Texas who want to adopt a now 4-year-old girl whose birth mother is Navajo. The couple had already adopted the girl’s brother, who shares the same biological mother, and when the girl was born in 2018 and was taken in by another family, the couple also filed for custody.
But ICWA establishes that foster children eligible for tribal affiliation be placed with extended family, another member of their tribe, or another Native American family whenever possible. And a relative – a great-aunt who lives in the Navajo Nation in Arizona and regularly visits the children’s older siblings – also wants to adopt the girl.
In 2017, the Brackeens became the lead plaintiffs in a federal lawsuit filed by the state attorneys general of Texas, Louisiana and Indiana and other families. defy the law.
In 2019, a Texas judge ruled the two families would share custody, with the girl living primarily with the Brackeens and spending time each summer with her great-aunt in the Navajo Nation.
The Brackeens’ case argues that India’s child protection law is unconstitutional, explained Ana Eveleigh, a Barnard College student who worked with Columbia Law School’s Law, Rights, and Religion project this summer to analyze religious dynamics in Brackeen v. Haaland. Part of the argument lies in the idea that the law constitutes racial discrimination by determining the placement of children based on race, Eveleigh said.
But federal law has long viewed Native Americans not as a racial group, but as members of sovereign nations, Miller said. If the Supreme Court were to rule that the law is “race-based,” it would undo hundreds of years of European and American interactions with tribal governments, he said.
“All the powers that tribes have – sovereignty, their own territory, they can have police, they can jail people, they have court systems – I mean, all of that would be in question if the court went that far. . I think it won’t, and I sure hope it won’t, but this case has people worried.
Eveleigh, who is not Native, agrees that the case “really gets to the heart of how we define tribal sovereignty in the United States.”
But it is impossible to ignore religion, she says.
Eveleigh and others draw a line between Brackeen v. Haaland and past US efforts to remove Native American children from their homes — along with their cultures and spiritual practices — that date back to the federal Indian boarding school system begun in the 1800s.
“Religion was at the center of it all because, you know, by getting rid of religious tradition, you get rid of a culture,” she said.
Many of the people who took part in these efforts were also motivated by religion, namely Christianity, she added.
The Brackeens said they attend an evangelical Church of Christ church twice a week and cited their Christian faith as part of their motivation to adopt in an interview in 2019 with the New York Times.
The United States is only now taking into account the history of its residential schools, which separated generations of children from their families and prohibited them from speaking indigenous languages, dressing and combing their hair in traditional ways and to participate in traditional spiritual practices in an effort to assimilate into the mainstream white Christian culture.
Half of the boarding schools were probably supported by Christian institutions, according to a report released earlier this year by the US Department of the Interior. A number of denominations are now researching and repenting of their past involvement
Then, in 1958, the U.S. Bureau of Indian Affairs began working with the nonprofit Child Welfare League of America on the Indian Adoption Project, according to Misty Flowers, executive director of the Nebraska Indian Child Welfare Coalition and member of the Santee Sioux Nation. The project encouraged non-Native families to adopt Native American children.
Canada and Australia had similar policies of adopting Indigenous children away from their families, cultures and spiritual practices in what is known as the “Sixties Scoop” in Canada and the “Lost Generation ” in Australia.
By the time Congress approved ICWA in 1978, as many as 25% to 35% of Native American children had been removed from their families, Flowers said. Most were placed in non-native homes.
The law was meant to put an end to that, Flowers said, with Congress describing the dismissal rate is “alarming” and “often unjustified”. This forced acculturation has caused trauma which then “creates more trauma and more trauma and more trauma,” according to Flowers.
Many Native Americans have argued that the key to healing from acculturation is enculturation, according to Eveleigh – providing access to one’s own culture and giving a child the choice to participate in traditional spiritual practices, she said. . This reinforces pride in their culture and ties to their community.
And that can’t happen if a child is adopted away from that culture and that community.
“Although the Brackeens provide a loving home for ALM,” as their son is named in court documents, Eveleigh said, “they cannot provide that inculturation that Native American communities have claimed and supported as important for healing. of their people in the long run.”