A few days ago, on October 31, President Biden proclaimed and affirmed November as Native American Heritage Month and November 25 as Native American Heritage Day. All fine and good, however, we do well to recognize political proclamations makes about as much change in national structure as spitting chaw into the Columbia River—it has an impact, but not one of significance. Conversely, on November 9, the US Supreme Court is scheduled to hear Haaland v. Brackeen. The question several plaintiffs bring before the court claims the Indian Chile Welfare Act of 1978 (ICWA) is unconstitutional because it is race-based. Should the Justices find ICWA unconstitutional, the court will: Affirm Indigeneity as race rather than natural identity. Kick tribal-national sovereignty in the pants. And affirm, support and reenergize Indigenous American genocide. Proclamations matter, but Law and Legislation is a pipeline rupture pouring petroleum into the Colombia river.
Enacted in 1978, the Indian Child Welfare Act was to protect Indigenous children, their families, and their community. Throughout US history (and Canadian) the government has systemically worked to eliminate Tribal nations from within US political and geographical borders. In 1869, the government used the thought construct of the Doctrine of Discovery paired with Christianity to enhance Tribal eradication under the framework of the “Grant Peace Policy.” A good chunk of this policy focused on the genocidal erasure of identity of Indigenous children through education, Christianity, and child removal from parents. The Indian Child Welfare Act was an attempt to reverse these actions and in turn protect Indigenous children, their families, and their community.
Essential to Grant’s Peace Policy was the development of Christian Boarding Schools. In developing a policy of erasure, the administration turned to those already in the business of changing identity: Christian institutions. The Grant administrations plan was simple: Require Indigenous children to attend a boarding school. Once laced in a school away from their tribal homelands, they were taught the skills of civilization—plowing, homemaking, animal husbandry, gardening, sewing, carpentry, raising a family in a framed structure—and Christianity—obedience to State and a Christian God—while condemning traditional ways and culture—hunting, fishing, gathering, freedom, and the God of landscape. By separating Indigenous children from their parents and raising them in boarding schools, the Grant administration believed it only a matter of time before they would begin identifying as something other than Indigenous. (The Canadian government used the Residential school to do the same.) A subtle but clear change began thirty-some years later.
By the turn-of-the-century a US public-school system is being crafted. At its core is a particular form of White supremacy. Legitimizing racial segregation with its 1869 Plessy v. Ferguson decision, the Supreme Court endorses an educational system of “separate but equal.” White children and children-of-color are to be educated in wholly separate institutions. However, this was not to be the case with Indigenous children. Rather than thinking of Indigenous children as children-of-color, the US government makes a concerted effort to enroll them into White public schools. The expectation being that an “overwhelming number of [white] non-Indian ‘peers’ might serve to propel such unfortunates away from their own traditions.” Thus, assimilating them into Anglo-Saxon norms.. Two awareness’s arise with this move. One, the US government clarifies Indian/Native/Indigenous is not race. (Race identified children—black and brown, under Plessy, are separated from white children and placed in in their own schools.) Second, a white/Indigenous public-school system indicates the government is moving away from publicly funded boarding schools and the boarding school model of assimilation. The question, though, is if Indigenous children are to stay in the homes of their parents, how does the government maintain a civilizing practice of farming, homemaking and Christianity in the Indigenous populace? After all, if children are to attend public-school and live with their parents, would not those children live “in a spirit world alone and revert to the older ways [of their parents]?”
The answer lay in placing indigenous children in white homes. If the government stopped spending money on federally funded boarding schools, money could then be spent on developing an adoption/foster care system that would structurally place Indigenous children into non-Indigenous (mostly white) homes. This new system would eliminate government boarding school expense and heighten the possibility of Indigenous children growing up to believe themselves something other than native. The move is subtle and hideous. The government uses the same boarding school lies that allowed children to be taken from their parents in the 1800’s: inadequate healthcare, poor food, pitiful housing, and pagan/heathen/animistic religions. Finding Indigenous inadequate to raise their children, government agencies placed Indigenous children into white homes. Child removal became so normalized that by the time of the 1978 Indian Child Welfare Act, twenty-five (25) percent of all Indigenous children were in the child welfare system. And of those children, 99% were living in non-Indigenous homes. This led to significant fragmentation of Indigenous family and community structure.
The history of boarding schools, foster care, and adoption is the why to ICWA being considered the gold-standard of child welfare. A dozen States have used ICWA to establish standards for foster and adoptive home placement. A reversal of ICWA could implement an era not unlike the Canadian Sixties Scoop—A name given to an era between the 1960’s-1980’s of apprehending Indigenous children and placing them under government care. By the 1970’s nearly one-third of Canadian children under care were Indigenous and of those approximately 70% were placed in non-Indigenous families. Raven Sinclair reminds us in Identity lost and found: Lessons from the sixties scoop little has changed in modern Canada. The modernity of erasure Indigenous identity is summed up by Lauri Gilchrist of Lakehead University “the ‘Sixties Scoop’ has merely evolved into the ‘Millenium Scoop’.”
Whether it is Johnson vs. McIntosh’s (1823) legitimizing the subjugation of Indigenous people, Plessy v. Ferguson (1869)validating the separation of siblings, or Haaland v. Brackeen (2023), the Supreme Court reflects our society’s worldview on Indigeneity. We can only wait at the moment to learn how we, as a people of the United States, think. We can be sure the Haaland v. Brackeen reflects who we are as “left and right,” “conservative and liberal,” “democrat and republican,” or “Christian and non-Christian” people. We are either a people who have talked well to one another, who have had meaningful conversations with those who think differently than ourselves, who have expressed our ideas with care, convection, and thoughtfulness, or we are not. This Court is our court whether or not we like the outcome of the Haaland decision. Which leaves us with a simple legacy: As our parents are known by Johnson and Plessy, so will our children know us by Haaland.
Chewing the Cud 