U.S. court case would reverse rights of Indigenous kids

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This week, while the eyes of the world have been on the United States mid-term elections, the U.S. Supreme Court has been hearing arguments in the remarkable Haaland v. Brackeen.

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Opinion

This week, while the eyes of the world have been on the United States mid-term elections, the U.S. Supreme Court has been hearing arguments in the remarkable Haaland v. Brackeen.

The case is fairly straightforward, led by a handful of non-Indigenous foster parents of Indigenous children (Brackeen) and the states of Texas, Louisiana and Indiana, who are asking the court to rule the Indian Child Welfare Act is unconstitutional because it is discriminatory.

The act, which became law in 1978, states if a child is removed from their parents and is “a member of an Indian tribe,” that child must be placed with a family member from that tribe, a family in their community or an Indigenous family.

The plaintiffs are arguing the law is discriminatory and violates the rights of non-Indigenous foster parents because it places them in “fourth-tier status.” (Mariam Zuhaib / The Associated Press files)

The law makes sense, and has several thousand reports to back it up. Indigenous children who grow up knowing their culture, language, and nation are better off.

The Brackeen plaintiffs argue the law is discriminatory and violates the rights of non-Indigenous foster parents because it places them in “fourth-tier status.”

The law was introduced by the U.S. Congress to stop the mass adoption of Indigenous children by non-Indigenous families, which by the 1970s, had become an epidemic — with one-third of all Native American children in the U.S. living in non-native homes.

Some of these non-Indigenous homes were loving, supportive and supported children to connect with Indigenous family and communities.

Many more of them though did none of this. Some abused children in their care.

Some families adopted Indigenous children simply to put them to work as free labour. Others adopted Indigenous children to make money, because the more you took in, the more parents would receive for room, board and “care.”

By the end of the 1960s, entire generations of Indigenous children had grown up disconnected, distanced and divorced from their cultural and political homes and identities. The law was created and passed to stop this, prioritizing Indigenous homes for Indigenous children.

At the Supreme Court, though, the Brackeen plaintiffs don’t just want the privileging of potential Indigenous parents thrown out but something much bigger: the entire category of “Native children.”

In an argument that has received support in the lower courts, the Brackeen plaintiffs argue Indigenous children should not be treated differently than non-Indigenous children under the law.

In essence, children are all the same, so it doesn’t really matter who parents them.

Unsurprisingly, this case is blanketed in religion.

The initial conflict began after a non-Indigenous Texas couple — Jennifer and Chad Brackeen — sought to adopt a four-year-old Navajo girl, alongside her brother.

The children’s aunt, a Navajo woman who lives on the Navajo Nation in Arizona, also filed an application for adoption — and the case was born.

Filing their initial claim (which they won) the Brackeens told the New York Times they attend the evangelical Church of Christ and are motivated to adopt the children so they can raise them in their faith.

The parallels of this story to U.S. boarding schools, where Indigenous children were removed from their communities and placed in church-run assimilatory institutions, is uncanny. The continued belief among sects of evangelical Christian churches that Indigenous peoples must be converted is less surprising.

A decision from the majority Republican-appointed Supreme Court won’t come until June, but, if approved, it would be the second table-flipping decision that affects tribal sovereignty in a year.

In July, in Oklahoma v. Castro Huerta, the court ruled states could prosecute crimes on tribal lands — effectively cancelling tribal jurisdiction and reversing nearly three centuries of federal recognition of tribal sovereignty.

On this side of the border, meanwhile, Canada is doing somewhat the opposite.

Canada is in the second year of the implementation of Bill C-92, which transfers control of Indigenous children in the country’s child welfare system to First Nations, Inuit and Métis governments and agencies.

The law is based on a principle of care called the “best interests of the child,” which recognizes the importance of ensuring cultural, familial and territorial connections.

(Quebec challenged C-92, calling it unconstitutional because it infringed on the jurisdiction of provinces. In February, the Quebec Court of Appeal disagreed.)

It’s not a good practice in this country to wag one’s finger at the United States, however, it’s worth noting how fast its courts are working to rescind, reverse and reject laws that recognize Indigenous rights and sovereignty.

Canada may be headed in another direction today, but with the efforts of just a few politicians and judges a hundred steps of reconciliation can be erased in moments.

niigaan.sinclair@freepress.mb.ca

Niigaan Sinclair

Niigaan Sinclair
Columnist

Niigaan Sinclair is Anishinaabe and is a columnist at the Winnipeg Free Press.

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