Raise A Glass to Freedom?

As “Hamilton,” the famous Broadway play, popularized, the United States of America fought for independence from the British. Settlers in the U.S. on July 4, 1776 celebrated the freedom from domineering systems of power. It was with this same sentiment for equality and just treatment that these same settlers displaced, murdered and terrorized countless native indigenous peoples. All in the name of expansion and liberty, early Americans committed genocide against Native tribes in an attempt to erase their existence. This genocide was not only physical but metaphorical. The definition of genocide is, “the deliberate and systematic destruction of a racial, political, or cultural group.” The metaphorical erasure of these groups is seen in the American educational system. For example, renaming the Trail of Tears—the path that indigenous peoples were forced to take as they were displaced from their homes—to Manifest Destiny, the “divinely led” mission American settlers had to expand the U.S.A. More recently, another example of this is the potential reversal of the Indian Child Welfare Act (ICWA).

Okay—so what is the ICWA, you may ask? Well, it is a federal law that was enacted in 1973, which allows for Native tribes to have jurisdiction over cases where their own Indigenous children are being adopted. You see, before 1978, Native American children who were up for adoption were usually adopted by non-Native, white families, even though there were loving families within their communities who could take care of them. A press release from 1966 by the Bureau of Indian Affairs reported, “One little, two little, three little Indians—and 206 more—are brightening the homes and lives of 172 American families, mostly non-Indians, who have taken the Indian waifs as their own.” This seemingly positive statement does not show the reality of what was actually happening during that time.

As previously mentioned, the U.S. government does not have the best history when it comes to the treatment of Native Americans. This fact can be clearly traced through the laws regarding the treatment of Indigenous peoples. On March 3, 1819, the U.S. Congress authorized the Civilization Fund Act, which allowed the president “in every case where he shall judge improvement in the habits and condition of such Indians practicable” to “employ capable persons of good moral character” to introduce to any tribe adjoining a frontier settlement the “arts of civilization.” This act was an attempt to solve the “Indian question.” The “Indian question,” similar to the “southern question” in Italian history, and the “Jewish question” during the WWII era, prescribes blame and moral illness to the Other, Native Americans, while championing any endeavor to “fix” these humans. The Civilization Fund Act brought forth the Indian Boarding School era, in which Native children were taken from their homes and put in predominantly Christian boarding schools to help them assimilate to the “American way of life.” These institutions forced these children to give up their native language, religion, and traditions, inevitably erasing their memory of home. Essentially, the U.S. government in the years pre- ICWA used adoption and education to “to destroy tribes by destroying families.”

In 1978, the U.S. government moved in the right direction by enacting the ICWA, which protects Native children from being disconnected from their families. However, some believe  it to be one step forward and three steps back. There have been many complaints about the ICWA over the years particularly, in the Haaland v. Brackeen, Cherokee Nation v. Brackeen, Texas v. Haaland and Brackeen v. Haaland. In these court cases, American citizens have argued that the ICWA is unconstitutional because it does not adhere to the Fifth and Tenth amendments. In basic terms, “The Fifth Amendment says to the federal government that no one shall be ‘deprived of life, liberty or property without due process of law.’" The fifth amendment is one of the amendments that gives us the equal protection clause, preventing the federal government from enacting laws that discriminate against people. We also get the substantive due process clause from the fifth amendment, which protects U.S. citizens from the government creating laws that infringe upon fundamental human rights like life, liberty and property rights.

Additionally, the tenth amendment has an anti-commandeering clause, which prohibits the federal government from issuing commands directly to the states. All in all, this means that Chad and Jennifer Brackeen, the Texans who filed the adoption petition, believe that the ICWA is unconstitutional because it prevents the adoption of Native American children by prospective parents which is a violation of the Equal Protection Clause and Substantive Due Process Clause. Also, Texas holds that the federal government should not be able to commandeer states into upholding ICWA. The Supreme Court will make a decision by the end of the 2022 term on July 1, 2023.

Since the inception of the United States of America, Indigenous peoples have been displaced and set in the margins of society. Their culture and traditions are continuously trampled upon by the descendants of those who forcibly took their home. One of the only laws in place that protect their families and generations to come is in jeopardy. In a way, if the ICWA is revoked, the U.S. would be responsible for bringing a second period of lamentation like The Trail of Tears for Native Americans. America loves to say that the children are the future without acting in the best interest of them. Just like other American citizens, Native groups should have access to their own children, the very ones that can carry on the legacy of their forefathers.  I encourage you to research this issue and to follow this case as it unfolds. Here are some resources you can use.

To learn more about Andrews University’s land acknowledgement click here.