he Trump administration’s continued practice of separating immigrant families at the border has rightfully sparked widespread outrage. But the policy is part of a pattern of family separation that spans American history, from the enslaved children sold away from their parents, to the Mexican-American families separated by mass deportations during the Great Depression. Native American kids also have suffered generations of removal from their homes, often to be placed in white families or Anglo institutions. And quietly, lost amid the constant noise of a deafening news cycle, a law designed to protect Native kids from being ripped from their communities has come under threat, as a Texas judge ruled the Indian Child Welfare Act unconstitutional.
Before the ICWA was adopted 40 years ago, researchers found that between 25 and 35 percent of Native American children were being removed from their homes, and 85 percent of these kids were being placed with white families or institutions. The law bolsters the rights of Native families—case workers must make an “active effort” to keep families in tact. It prioritizes placing Native children in the foster care or adoption systems first with family members, then with others in their tribe, then with Native families across the country. Non-Native people aren’t banned from adopting Native children, but must demonstrate “good cause” as to why the child cannot be cared for by Native Americans.
Earlier this month, conservative federal judge Reed O’Connor found the ICWA unconstitutional on the grounds that it discriminates by race. The ruling only applies to his district, which covers 100 counties in northern Texas, but the Cherokee Nation has promised to appeal, pushing the case to the Fifth U.S. Circuit Court of Appeals and potentially the Supreme Court, where the conservative majority would have the opportunity to overturn ICWA entirely.
Family separation has historically been a policy technique used in America’s genocide of Native tribes. From the late 19th century through the middle of the 20th, Native youths were enrolled—forcibly or by desperate parents prevented from sending their kids to local Anglo schools—in state-funded boarding schools. This was no well-intentioned but misguided attempt at education; tribes that did not cooperate with the U.S. government were specifically targeted, and children of their leaders taken as hostages. Students had their hair cut, and were banned from speaking their languages or practicing their faiths. When they returned home, they sometimes met families they barely recognized and a culture they’d been taught was shameful. The goal of these schools, as the founder of one such institution famously put it, was to “kill the Indian, and save the man.”
As a six year old in 1945, Patwin Indian Bill Wright was sent to a boarding school for Native Americans. He told NPR about his experience:
“I remember coming home and my grandma asked me to talk Indian to her and I said, ‘Grandma, I don’t understand you,'” Wright says. “She said, ‘Then who are you?'” Wright says he told her his name was Billy. “‘Your name’s not Billy. Your name’s ‘TAH-rruhm,'” she told him. “And I went, ‘That’s not what they told me.'”
The educations offered were substandard, and abuse was rampant as children were sometimes starved, beaten, or forced to perform hard labor. And while the boarding school system declined throughout the 20th century, Native kids are still removed from their homes in astonishing numbers. In contemporary South Dakota, for example, Native children are 11 times as likely as white kids to be placed in foster care.
While any family separation can be deeply traumatic for kids and their caregivers, mass removals of Native children can have devastating effects on their tribes. Scores of Native American languages are critically endangered. Only 20 Native tongues are expected to survive to the year 2050, as the last, elderly speakers of 130 languages die. It’s vital that Native American communities be protected, as many traditions are in danger of actual extinction. And while there are cases in which no suitable Native family can take in a child, the ICWA aims to ensure there’s at least a vigorous attempt to keep children in their tribes.
Racism in the child welfare system contributes to children of color being separated from their families at rates far higher than that of their white peers. One study by the Department of Health and Human Services found that “minority children…are more likely to be in foster care placement than receive in-home services, even when they have the same problems and characteristics as white children.”
Native families are also disproportionately likely to live in poverty, to face constrained educational opportunities, and to be affected by substance abuse. The treatment Native peoples have sustained at the hands of the U.S. government has also burdened their communities with intergenerational trauma that can pass from parent to child. As Wright, who once had to take his classmate to the hospital after a boarding school teacher beat him bloody, told NPR:
Balancing the rights of children to live in safe homes with the broader rights of a community that has survived a genocide and continues to be one of the America’s most marginalized is certainly difficult. The case that sparked Judge O’Connor’s ruling, Brackeen (Texas) v. Zinke, was initially brought by the Brackeens, a Texas couple fostering a Native American baby. With the support of the boy’s biological family, they pursued adopting him. A court blocked the adoption on the grounds of the ICWA and attempted to place the child with a Native family in New Mexico. The Brackeens sued and eventually succeeded in adopting the boy. However, the states of Texas, Indiana, and Louisiana continued the lawsuit, leading to the ruling from Judge O’Conners.
The Cherokee Nation and other advocates for the ICWA argue that this ruling is a threat to tribal sovereignty. The ICWA isn’t about the child’s race; it exists so that Native children are given the same treatment as those in international adoptions. After all, Native Americans are members of nations within a nation.
There’s also evidence suggesting that Native children tend to do better when reared in Native homes. As psychologist Dr. Antony Stately told a reporter:
There’s an immense destructive power in separating children from their families that extends far beyond the personal traumas afflicted to parents and kids. When done on a wide scale, it shatters bonds of tradition, faith and culture, breaking the ties crucial to any nation or ethnic group’s communal might. In striking down the ICWA in his district, Judge O’Connor ignored the fact that non-white families are still under threat, and that Native families in America still deserve unique protections in keeping with their singular history.