Since this country was founded, Native Americans have been forced to balance their sovereignty with that of the United States. The U.S. Constitution itself recognizes Native American tribes as separate entities, and tribes have been able to use their sovereignty to enter into treaties with the U.S. government, negotiate as independent entities, and engage in trade with the U.S. government and its citizens. The political relationship between tribes and the U.S. government dates back to the treaty commitments made by the United States between 1778 and 1868 in exchange for millions of acres of land.

The U.S. government, however, has a long history of violating treaties and the sovereign assertions of tribes across the country. Native Americans have been subjected to forced displacement and removal, stripped of rights to land granted to them from treaties, and subjected to racist and assimilationist policies that looked to destroy Native culture.

One particularly devastating tool of forced assimilation was the involuntary removal of Native American children from their homes. This practice dispossessed generations of Native Americans of their language, culture, and communities. Beginning in the late 19th Century, thousands of native children were separated from their families and forced to attend federally run, predominantly Christian boarding schools whose explicit mission was to destroy Native cultures, languages, and spirituality, and prepare the children for assimilation into American society. These institutions existed in various forms until the middle of the 20th century. The legacy of these federal Indian boarding schools is still being revealed today. Native Americans who were raised in these places have discussed the abuse, trauma, and even death at the hands of these institutions.

(Left) Three Sioux boys – Wounded Yellow Robe, Timber Yellow Robe, and Henry Standing Bear – upon arrival at the Carlisle Indian School in 1883. (Right) The same boys after three years at Carlisle.

But even as the use of boarding schools fell out of fashion, the methods of forced assimilation continued. In 1958, the Bureau of Indian Affairs funded the Indian Adoption Project, which purported to find homes for “forgotten” children who were “left unloved and uncared for on the reservation, without a home or parents he can call his own.” This program’s underlying principle was eerily similar to that of the boarding schools: removing children from their native families would provide a “better” life.  The program lasted until 1967. By the 1970s, state welfare agencies – in tandem with private adoption agencies – became the primary entities responsible for unjustifiably removing Native American children from their homes. In that time, 25-35% of all Native children were removed from their homes by state welfare and private adoption agencies. Of those removed, 85% were placed outside of their families and communities.

Tribal Advocacy Leads to the Passage of ICWA in 1978

Tribes consistently appealed to Congress about the damage being done to their communities by outside actors removing children from their homes. In a series of Senate hearings in 1974, families recounted stories of children who were taken by the state without notice or court hearings, welfare agents repeatedly asking that mothers give up their newborns, and kids making plans to hide if child services showed up to take them away. Upon the completion of a Congressional investigation into these practices, Congress released a report acknowledging that “[t]he wholesale separation of Indian children from their families is perhaps the most tragic and destructive aspect of American Indian life today.”

An excerpt from the Congressional report on “Establishing Standards for the Placement of Indian children in Foster or Adoptive Homes, to Prevent the Breakup of Indian Families, and for other Purposes.” 2 H.R. Rep. No. 95-1386 at 9 (1978)

In response to Native American advocacy and testimony during Congressional hearings, Congress passed ICWA in 1978 with bipartisan support. The text of the law makes clear that protecting Native American children is “vital to the continued existence and integrity of Indian Tribes,” and acknowledged that “an alarmingly high percentage of Indian families are broken up by the removal, often unwarranted, of their children from them by nontribal public and private agencies and that an alarmingly high percentage of such children are placed in non-Indian foster and adoptive homes and institutions.”

“Families recounted stories of children who were taken by the state without notice or court hearings, welfare agents repeatedly asking that mothers give up their newborns, and kids making plans to hide if child services showed up to take them away.”

ICWA counters these practices by enshrining into law policies that prioritize kinship placement to keep Native families and communities together. First, ICWA requires states to make “active efforts” to keep Native children with their parents. If this is not possible, the state must first try to place the child with a member of their extended family; second, with another tribal member; and finally, with an unrelated Native American family. Only after these avenues have been exhausted may the child in question be placed into the state’s general adoption or foster care system. ICWA subverts the historical practice of removing Native children from their homes, sometimes without their extended family or tribe even being made aware the child was taken into the state’s custody. The process helps ensure that tribes, as sovereign nations, have jurisdiction over their own children.

Graphic from the National Indian Child Welfare Association (NICWA) at nicwa.org.

ICWA has now been in place for more than 40 years and is supported by hundreds of federally recognized tribes and the nation’s top child welfare organizations. The Children’s Defense Fund and the Casey Family Foundation have called ICWA the “gold standard” in child welfare policy, due to its prioritization of kinship placements. The Casey Foundation describes ICWA as “ahead of its time,” and highlighted the law’s recognition of the “core values and principles of child welfare best practice by requiring active efforts to keep children safely in their homes and connected to their families, communities, and culture.”

Unfortunately, many states have worked to get around ICWA’s protections, or have simply failed to follow the required steps. These actions have continued to create situations where Native children are disproportionately removed from their homes. According to the National Indian Child Welfare Association, more than half of adopted Native children in the United States today are placed outside their families, communities, and tribes. In 2011, NPR investigated and found that, despite the availability of licensed Native foster parents, 90% of Native kids in foster care in South Dakota were still placed in homes with non-Native families. Between 2010 and 2017, more than 1,000 Native children from one South Dakota county were taken from their families in placed in non-Indian homes. After intervening, the ACLU discovered that the child-custody and removal hearings often lasted fewer than five minutes with the state prevailing “100 percent of the time.” In 2020, the Minnesota Department of Human Services found that Native kids were found to be nearly 17 times more likely than non-Native kids to be removed from their parents.

Source: Mother Jones – In Minnesota, Native children account for more than 25% of the children in foster care, while only accounting for less than 5% of the state’s child population.

In response to these realities, tribes and child welfare organizations have advocated for ICWA’s protections to be strengthened and for more federal and state enforcement of ICWA’s processes. Advocates have advocated these reforms to state governments and to Congress in an effort to bolster the law’s protections. But since ICWA’s beginning, a growing consortium of powerful organizations and interests have been working to do away with the law entirely. Their financial motivations have been masterfully disguised behind their purported concern for the wellbeing and welfare of Native American children. Their efforts are beginning to pay off. The fate of ICWA now hangs in the balance, potentially resulting in the undoing of half a century of celebrated child welfare policy and reopening the door to harmful policies that could “return Indian children to the arbitrary and discriminatory whims of state courts and state agencies, unfettered by the centuries-old trust obligations this nation owes to Indian tribes and Indian peoples.”

Chad and Jennifer Brackeen are a white, Evangelical Christian foster couple who agreed to temporarily foster a Navajo infant. They explicitly agreed that the placement was not a “foster to adopt” situation, and that the infant’s placement was not permanent. While the infant was in their care, the Navajo Nation had found a Navajo family to adopt the child, but the adoption fell through. The Brackeens then looked to adopt the child themselves, but the tribe intervened under ICWA to have the child placed with a different Navajo family they had found. In state court, the Brackeens responded by arguing that ICWA enshrines into law the disparate treatment of Native children and non-Native children. They claimed that this violated the Equal Protection Clause under the 5th Amendment, which prohibits disparate treatment on the basis of race. The court ruled in favor of the Brackeens, and they were allowed to adopt the infant.

But the Brackeens didn’t stop there.

Later, the now adopted Navajo infant’s biological mother had another baby that she looked to put up for adoption. This time, the baby girl’s great aunt stepped forward to adopt the baby so that she could raise the girl with her Navajo family and culture. This is exactly the sort of outcome ICWA prioritizes. But the Brackeens intervened and sued to block the adoption from going through. They argued that they were better suited to raise the girl, pointing to the size of their home and their private pool. Chad Brackeen told the court that he was worried about the infant growing up in a smaller home, saying, “I don’t know what that looks like if she needs space, if she needs privacy. I’m a little bit concerned with the limited financial resources possibly to care for this child, should an emergency come up.” The Texas court agreed, relying on the rationale of the earlier Brackeen case suggesting that ICWA itself was unconstitutional and could not be enforced.

Private interest groups have propelled the Brackeens forward in their efforts to destroy ICWA by claiming it legalizes racial discrimination against non-Native people.

Even after adopting the children, the Brackeens have used their original case, Brackeen v. Zinke, to continue appealing their legal claim that ICWA itself is unconstitutional. And they aren’t doing it alone. In 2019, the Brackeens took their argument up to the 5th Circuit, which has a history of ruling in favor of conservative causes. The judges issued a split ruling that left open the question of ICWA’s constitutionality, which allowed the Brackeens to appeal it one final time. The Supreme Court, which rejects thousands of appeals each term, has agreed to hear this argument and decide the fate of ICWA this summer.

The Brackeens’ case has been bankrolled by an “unlikely alliance of right-wing political, legal, economic and religious groups that outwardly appear to have little connection to Indian Country or its children.” These groups include “right-wing think tanks, representatives of the private adoption industry, the evangelical adoption movement, anti-treaty rights organizations and conservative fossil fuel industrialists.” The Goldwater Institute, one of the think tanks financially supporting ICWA litigation, has ties to the fossil fuel industry which has been trying for decades to access the natural resources on tribal lands. Goldwater has contributed extraordinary resources to ICWA cases, even though they have no other programming or initiatives touching on child welfare policies.

The private adoption industry is the other key player in these efforts. Adoption is an incredibly lucrative business, with average adoption fees ranging from $15,000 – $40,000 per child. Increased access to reproductive healthcare and declining birthrates has contributed to decreased numbers of children being put up for adoption, and countries around the world have clamped down on the foreign adoption pipeline perpetuated by the American adoption industry. This has affected the industry’s bottom line and has made access to Native children incredibly valuable.

The Brackeens’ case has been bankrolled by an “unlikely alliance of right-wing political, legal, economic and religious groups that outwardly appear to have little connection to Indian Country or its children.”

Each of these entities purports to be challenging issue for the benefit of Native American children, often discussing the importance of freedom, choice, and equal treatment under the law. Their advocacy also tends to rely on tropes about Native communities and culture, often depicting Native communities in terms in poverty, abuse, and neglect, while the (overwhelmingly white) adoptive couples are uplifted due to their wealth, education, and Christian values. In a report about the coordinated attacks on ICWA, on think tank states plainly: “Although the final goals of these seemingly disparate groups may differ, their shared strategy of commodifying Native American children reveals a colonial mindset that not only depicts Native American people as incapable of managing their own affairs, but also frames their children and resources as free for the taking.”

Litigating a Pathway to Extract Natural Resources from Tribal Lands at the Expense of Native Children

The Goldwater Institute is a libertarian, conservative think tank based in Arizona whose mission is to “[advance] the principles of limited government, economic freedom, and individual liberty, with a focus on education, free speech, healthcare, equal protection, property rights, occupational licensing, and constitutional limits.” While deeply enmeshed in ICWA litigation for the past seven years, Goldwater has no other child welfare focused programs, and has no other project discussing Native American policies or issues. And yet, they have been involved in 13 cases challenging ICWA over the past since 2015, and they launched a media campaign designed to villainize the law while relying on tropes about Native American communities. They are also a key backer of the Brackeen case heading to the Supreme Court this summer.

Excerpt from equalprotection.org, a website run by the Goldwater Institute to advocate for overturning ICWA.

Goldwater’s end game is clear: to strike down ICWA as unconstitutional, which would open the door to challenging all of tribal sovereignty law in this country. “Cloaking its efforts in the language of civil rights, Goldwater has launched a coordinated attack against ICWA alongside evangelical and anti-Indian-sovereignty groups, adoption advocates, and conservative organizations like the Cato Institute,” reported The Nation. And Goldwater’s motivation likely has less to do with the wellbeing of Native American children, and more to do with the wealth of natural resources that exist on Native lands that are inaccessible to outsiders due tribal sovereignty. If Goldwater were to successfully challenge the foundation of Native American sovereignty, the network of federal laws offering rights and protections to tribes and their citizens could crumble.

The legal dominoes are well placed for them to succeed.

ICWA’s legitimacy stems from hundreds of years of legal understanding that the Native American identity is a political classification, not a racial one. As political entities, Native American tribes have been able to keep their sovereignty, make their own laws, and control their own individual citizenship rules. Like other sovereign entities, tribes are free to base citizenship on ancestry, familial relations, or other methods. (Just last year, the Cherokee Nation Supreme Court ruled that descendants of Black people enslaved by the tribe have a right to tribal citizenship.) The political classification of Native American identity also allows Congress to legislate specific laws that only apply to Native Americans without violating the Constitution’s prohibitions against racial or ethnic discrimination. In this way, tribes exist with different tax laws, court systems, and Constitutional obligations than non-Native citizens. If their legal classification were to be switched from a political one to a racial one, all modern Native American rights and protections may be challenged as being preferential to one specific race.

If their legal classification were to be switched from a political one to a racial one, all modern Native American rights and protections may be challenged as being preferential to one specific race.

The ripple effects could extend beyond child welfare and put into question all of Native American self-determination and sovereignty. Tribal lands sit on some of the largest supplies of metals, oil, and natural gas in the country. Even though tribes have jurisdiction over 2% of the land in the country, “that land holds about a third of all fossil fuel resources in the country, like coal, natural gas and oil, worth around $1.5 trillion.” Their status as sovereign entities protect the land from major industries looking to profit off of the wealth of natural resources contained on tribal lands. Tribal activists and legal experts worry that overturning ICWA “could undermine the authority of tribal courts, shutter tribal casinos, and open up reservations to privatization, something that could benefit oil and gas developers like the Koch brothers.” But Goldwater has downplayed these concerns while continuing to involve itself with anti-sovereignty organizations, many of whom are connected to the oil and gas industry. Should ICWA be overturned, the network of federal environmental protection policies that tribes rely on to enforce the fossil fuel industry’s compliance with environmental regulations could also be overturned.

Source: Kevin Lamarque/Reuters (https://www.theguardian.com/us-news/2021/jan/21/dakota-access-pipeline-joe-biden-indigenous-environment) – Native American activists protest in opposition to the construction of the Dakota Access and Keystone XL pipelines in 2017.

Goldwater’s efforts have been successful by many measures. They have effectively brought forth litigation that was designed to chip away at ICWA’s protections under the guise of caring for children, all while promoting legal theories that call into question the validity of tribal sovereignty. But Goldwater is not working alone to undo this law. The highly lucrative private adoption industry has been working in tandem with entities like Goldwater to remove ICWA’s protections and make Native American children easier to place for adoption with overwhelmingly white, wealthy families who live outside of Native American communities.

The Billion-Dollar Industry Seeking to Profit off of Native American Children

Adoption is a lucrative business to be in. In 2020, the U.S. adoption industry had an approximate revenue of $20.7 billion, and is expected to increase as adoption fees continue to grow. While families may look to adopt through state run foster care systems and “foster to adopt” children in the state’s care, those with financial means may opt for private adoption. Private adoption is incredibly expensive, with attorney’s fees alone ranging from $15,000 to $40,000 per child. Adoptive families are overwhelmingly white, older, better educated, and more financially secure than biological parents raising their own children. And while adoption is often portrayed as a win-win for all parties involved, the realities of adoption are far more complex, particularly when the added factors of race, culture, and nationality are present.  As ICWA faces attacks and Native communities are misrepresented or ignored, these complexities are only worsened.

The number of available children to adopt has been declining. Researchers have identified a few factors contributing to this decline. Domestically, expanded access to reproductive health care, including birth control and abortion, have contributed to decreased numbers of unplanned for pregnancies. This has coincided with a dramatic reduction in pregnancy and birth rates among teenagers. In addition, more single mothers are opting to raise children on their own, with the help of their families, rather than opting for adoption. Internationally, countries that used to have permissive laws for children to be sent for adoption abroad have clamped down on the practice. These policy changes abroad account for the 93% decrease in international adoption from 2004-2021.

However, Native American children have continued to be overrepresented in the adoption and foster pools, and bias from state child welfare workers and the court systems enforces a cycle of disproportionate removal of Native children from their families. Native children are four times more likely to be removed from their families and placed into foster care than white children, even when both families are facing similar problems. In South Dakota, Native children are 11 times more likely to be placed in foster care compared to white children, and a shocking 52% of children in South Dakota’s foster care system are Native.

Source: NICWA, http://www.ncjj.org/AFCARS/Disproportionality_Dashboard.aspx – Native American children are disproportionately represented in foster care across the country

Prior to ICWA, around 80% of Native American families living on reservations lost at least one child to the foster care system. In total more than a quarter of all Native children were removed from their families, with 85% being placed outside of their tribes or relatives. For many Native Americans, the removal of so many children amounted to a cultural genocide. Wenona Singel, a law professor and citizen of the Little Traverse Bay Bands of Odawa Indians, pointed to the generational trauma that comes with losing connection to families and traditions. Singel’s grandparents and great-grandparents were sent to boarding schools, and her mother, aunt, and sister were adopted into white families. “[Native communities] were not just dispossessed of their land,” Singel told The Nation, “They were dispossessed of their children.”

While ICWA is meant to counter these tactics and require states to prioritize kinship placement with the child’s family, advocates have raised the alarm for decades that states have been resistant to following ICWA’s protocols at every step of the process. This has meant that Native children fall through the cracks and are adopted out to non-Native families before the tribe is even aware the child needed kinship placement. Litigation to rectify these potentially unlawful adoptions can take years, during which time the infant grows up with the one family they’ve ever known. Native families are put in the terrible position of having to decide whether to fight for custody of their infant relative or let them go.

Native families are put in the terrible position of having to decide whether to fight for custody of their infant relative or let them go.

The private adoption industry itself has relied on coercive and bad-faith tactics to stall ICWA litigation. Private adoption agencies and attorneys “are creating delays in the system, and actively working the system to get around ICWA statute.” Private adoption attorneys have been known to encourage Native birth mothers not to mark their child as Native American, so that ICWA won’t be triggered during adoption proceedings. In the even litigation does occur, attorneys for these companies will stall out litigation until the statute of limitations expires or use other bad-faith tactics to misrepresent facts of the child’s parents.

In Adoptive Couple vs. Baby Girl, famously known as the “Baby Veronica” case, lawyers for the adoptive couple engaged in egregious behavior that completely skewed the court system against the baby’s biological father, a member of the Cherokee Nation, who fought for years to have custody of his child. The attorneys involved consistently delayed the case, misspelled the father’s name when “checking” his Cherokee Nation citizenship (which turned up no results – they provided the wrong spelling of his name and provided an incorrect birth year), and waited to tell him his daughter was being placed for adoption until the day before he was deployed to serve in Iraq. Through the years of litigation, the father worked tirelessly to establish his paternity and gain custody of his child, even sending child support payments to the adoptive couple and “purchas[ing] stuffed animals and other toys for his daughter during this period – all of which were returned, along with the 20 pairs of socks hand-knitted by the child’s grandmother.” The case made it to the Supreme Court, where he was lambasted as an absent father and denied any custody rights. The legal misrepresentations and delay tactics used by the private adoption attorneys were completely ignored by the U.S. Supreme Court.

Opponents of ICWA point to these cases as evidence that ICWA traumatizes children by tearing them away from their adoptive families whom they’ve bonded with over years of their lives. “The disruption of an attachment or bond with a foster or adoptive parent can cause great damage to the children,” stated American Adoptions, an organization that supports overturning ICWA. They argue that these disruptions can result in “significant trauma to the child, including physical, emotional, and cognitive delays, which can be permanent and irreparable.”

Advocates point out that these adoptions should never have occurred in the first place, and that these cases are traumatizing on the family and community the child was taken from. Rebecca Nagle, a Cherokee writer and host of the podcast This Land, spoke of the heartbreaking interviews she had with families who lost custody battles to non-Native families. “This is most demoralizing thing I’ve ever looked into – what happened to these children,” Nagle said. “But I think also really what got me was talking to the family members who didn’t win custody, and the loss those families are living with.” Adoption Choices of Texas, a nonprofit adoption agency, called out the way these narratives center the white adoptive couples at the expense of the child’s biological family members: “While Jennifer and Chad’s intentions can be construed as helpful, this is exactly the problem. These children already have people fighting for them – their own families and tribes.”

But rather than heed the warnings of child welfare organizations and Native communities, the private adoption industry has forged ahead with its campaign to end ICWA, relying on the simple calculus that an increase in Native children available to adopt will, in turn, increase the industries revenues and profit streams.

The private adoption industry purports to be engaging in this campaign for the benefit of Native children, but the data suggests otherwise. Kinship placement, of the kind ICWA demands, is proven to produce better outcomes for children in the long term. Angel Smith, a seventh-generation Cherokee tribal citizen credits ICWA for allowing her tribe to block her foster family from adopting her so that she could be returned to biological family members. Raised by her maternal grandparents, Smith said told ThinkProgress that “the connection with my Cherokee family absolutely was critical and is for me . . . . It’s informed pretty much every part of my life, being Cherokee.” But rather than heed the warnings of child welfare organizations and Native communities, the private adoption industry has forged ahead with its campaign to end ICWA, relying on the simple calculus that an increase in Native children available to adopt will, in turn, increase the industries revenues and profit streams.

Private interests, led by the Goldwater Institute and the private adoption industry, are close to realizing their decades-long campaign to destroy ICWA for their own private benefits. In the process, they are putting Native American children, communities, and lands at risk of substantial exploitation and devastation. Were these groups were actually concerned about child welfare, they would be listening to the desires of Native communities, working to improve resources and programs for Native families, prioritizing family cohesion, and working with state and federal officials to improve ICWA. Instead, they are joined in the single-minded effort to get rid of this law, which would put a disproportionate number of Native children back in the private adoption pool and would serve as a key step to destroy the central principle of tribal sovereignty that keeps private industrialists at bay. When the dust has settled, the only stakeholder that should matter – Native American children – will be subject to a system that does not believe their culture or community is capable of raising their own children. When Congress passed ICWA, they noted in the text of law itself that “[t]he wholesale separation of Indian children from their families is perhaps the most tragic and destructive aspect of American Indian life today.” Should the Supreme Court overturn ICWA this summer, they will be reinstating the very cycle of abuse that Congress identified when it passed ICWA 44 years ago.

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If you are interested in learning more about ICWA, Native American laws and protections, or the history of Native American children being separated from their families, please look to the following resources:

• For activists, concerned citizens, and those just looking to help, you can connect with the following organizations who are on the front lines of ICWA advocacy:
  • NARF
  • NICWA
  • National Congress of American Indians
  • Association on American Indian Affairs
• For lawyers and policy-minded individuals, check out the following publications:
  • Turtle Talk, a legal blog about all things Indian Law
  • ABA’s History of ICWA Litigation
  • A list of briefs submitted in Brackeen v. Haaland may be found at the Tribal Supreme Court Project’s website.
  • Berger, Bethany, In the Name of the Child: Race, Gender, and Economics in Adoptive Couple v. Baby Girl, 67 Fla. L. Rev. 295 (2016)
  • Leanne Gale & Kelly McClure, Note, Commandeering Confrontation: A Novel Threat to the Indian Child Welfare Act and Tribal Sovereignty, 39 Yale L. & Pol’y Rev. 292 (2020)
• To learn more about ICWA and the parties involved, refer to the following media:
  • Podcast: This Land, by Rebecca Nagle
  • Podcast: Strict Scrutiny: “Go Down Clutching the Constitution”