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Summit in Australia urges science to do more to embrace First Nations climate knowledge

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Indigenous Australians consider the land to be the mother of creation

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Who Should Get to Adopt Native American Children?

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Who Should Get to Adopt Native American Children?

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Story by Lia Kvatum

Photos by Courtney Perry

April 3, 2019

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Does a law meant to keep Native American children with their tribes help or harm them?

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Decades ago, Congress passed a law to try to end the mass removal of Native American children from their families and tribes. Now, its future is in doubt.

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Supreme Court to review Indian Child Welfare Act, which prioritizes adoptions by Native American parents or tribes

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Supreme Court to review Indian Child Welfare Act, which prioritizes adoptions by Native American parents or tribes

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February 28, 2022 at 4:16 p.m. EST

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Visitors walk outside the Supreme Court building on Capitol Hill in Washington on Feb. 21. (Patrick Semansky/AP)

The Supreme Court will consider the constitutionality of a federal law intended to rectify past abuses of Native American children being removed from their homes and tribes, the justices announced Monday.

The court consolidated four cases about the 1978 Indian Child Welfare Act (ICWA), which prioritizes placement of Indian children with relatives, other Native Americans or a tribe. The act was intended to stop past practices in which hundreds of thousands of Native American children were removed from their homes by adoption agencies and placed with White families or in group settings.

Native Americans say the law is essential to them, and have pledged to defend it.

"We know the importance of keeping our children connected with their families, communities, and heritage. ICWA has proven itself as the gold standard of child welfare law, which is why both Republican and Democratic administrations, tribes and tribal organizations, and child welfare experts continue to defend it," Cherokee Nation Principal Chief Chuck Hoskin Jr. and three other tribal leaders said in a statement.

"We will never accept a return to a time when our children were forcibly removed from our communities, and look forward to fighting for ICWA before the Court."

Does a law meant to keep Native American children within their tribe pass legal muster?

The law is being challenged by seven individuals and three states, led by Texas. The plaintiffs contend the law requires state officials to put aside the traditional standard of doing what is best for the child, and they say it violates the Constitution's promise of equal protection.

"ICWA operates as a unified scheme that places 'Indian children' in a disfavored position, depriving them of a placement decision based on their best interests, and instead requiring placements" based on the child's biology, the individual plaintiffs told the court in their filing.

Non-Indian adoptive parents end up "last in line to adopt an Indian child," the filing said, behind a member of the child's extended family, other members of the child's tribe and other families "from any one of the other 573 Indian tribes, regardless of whether the tribe has any connection to the child."

Louisiana and Indiana are also among the challengers. The law is being defended by the Biden administration and tribal leaders.

All sides asked the Supreme Court to get involved after the entire U.S. Court of Appeals for the 5th Circuit delivered a 325-page ruling on the law that split evenly on some issues and included opinions from six judges.

In a high-profile 2013 case, the Supreme Court ruled 5 to 4 that the ICWA did not command that a child who became known as "Baby Veronica" must remain with her birth father, a member of a tribe, after the child was given up before birth. But the case did not call for the court to decide the constitutionality of the law.

How President Biden came to nominate Ketanji Brown Jackson for the high court

Native American law has played a larger role in the Supreme Court's decisions of late.

The court announced in January that it will consider limiting a controversial 2020 decision that greatly expanded the amount of Indian land in Oklahoma and disrupted criminal prosecutions in the area.

But the justices declined the state's request to overturn its decision in McGirt v. Oklahoma, which sided with tribal leaders in finding that a large portion of land in the eastern part of the state qualifies as an Indian reservation.

The four cases in the fight over the ICWA are consolidated under Haaland v. Brackeen.

BIDEN'S SUPREME COURT PICK

HAND CURATED

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Republicans weigh how big a part of midterm message to make Biden's Supreme Court pick

Biden introduces historic nominee Jackson, tapped to be first Black female justice

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Supreme Court to review Indian Child Welfare Act, which prioritizes adoptions by Native American parents or tribes

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The Supreme Court will consider the constitutionality of a federal law intended to rectify past abuses of Native American children being removed from their homes and tribes, the justices announced Monday. The court consolidated four cases about the 1978 Indian Child Welfare Act (ICWA), which prioritizes placement of Indian children with relatives, other Native Americans or a tribe.

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A quiet genocide: The legacy of stolen indigenous children

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A quiet genocide: The legacy of stolen indigenous children

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A quiet genocide: The legacy of stolen indigenous children

Indigenous peoples throughout English-speaking countries have had their children taken away by the state for generations. Most countries have faced up to this legacy. Will New Zealand now acknowledge its own Stolen Generations?

Words by Aaron Smale

The social worker pretended to be kind to Tyrone Marks. But her act of deception propelled him into an odyssey of abuse.

His family was large and poor. But whatever struggles he had growing up paled in comparison to what happened when the social welfare worker turned up in 1967 when Marks was six years old.

"One day they just came, told me they were going to take me out to buy some clothes for me."

"I even remember the name of the social worker. She made me feel like I could trust her and all she was doing was making sure I had brand new clothes and shoes and stuff."

"Where everybody else got lunches when they went to school, I didn't. With shoes, I was the last on the list. I never really got any, I had to go to school in bare feet."

"So this lady was telling me she was buying me some new clothes, so I jumped in the car. I was none the wiser [about] what was going to happen from that point onwards."

"They said they were buying me some clothes and bringing me back home. But that's not what they were doing at all."

Instead of taking him to get new shoes the social worker drove him to the airport. He was then put on a plane to another part of the country.

"These nuns came to pick me up. So I had no idea why I was there. I'd never had anything to do with nuns. I was quite freaked out actually as a kid. It was quite sad. I knew I was a very long way from home; I couldn't just open the door and walk home again. I tried, but I didn't know where I was. That's where it all started from."

For Marks, it was the beginning of an eight-year journey through a number of state welfare institutions. It's an experience more than 100,000 other children endured in New Zealand from the 1940s through to the late 1980s. Most of the children were indigenous Maori.

"These nuns came to pick me up .... I had no idea why I was there .... I was quite freaked out actually as a kid. It was quite sad. I knew I was a very long way from home ...."
Tyrone Marks, welfare home survivor

Childhood incarceration: The culmination of colonisation

This childhood incarceration happened at a time when Maori were moving to the cities in increasing numbers in the post-war period. It was the first time European New Zealanders had encountered the country's indigenous people in large numbers. But this urban shift was the culmination of a long process of colonisation that had started much earlier.

During the late 19th and early 20th century, Maori lost most of their land through confiscation or an individualised land tenure system that undercut their social structures and hastened alienation rather than development.

The economic hardship this brought about, combined with epidemics of disease they had little immunity to, contributed to a collapse in the population.

Native schools that were set up by the government had eroded Maori language and culture.

The population only started to recover in the 1930s. But in the post-war period, this expanding population had few economic options but to move to the cities where there was a demand for cheap labour.

They were vulnerable to the new and, at times, hostile environment.

New Zealand during this period was a punitive society that did not readily tolerate difference. And Maori were perceived as different. They were particularly targeted by police and social agencies, being picked up for minor infractions like truanting from school. Economic struggle also attracted the glare of state welfare institutions.

By the 1970s, upwards of 80 percent of the children in state welfare institutions were Maori.

The details of what those children endured during this period of institutionalisation have gradually seeped out.

But New Zealand has yet to face up to an uncomfortable reality: that the institutionalisation of Maori children has uncanny parallels with the institutionalisation of indigenous children in other English-speaking countries built on colonisation. And the results are the same.

Whipped, sexually abused and electrocuted

For Marks one of the results of the abuse he suffered in state institutions was a burning anger. Even 50 years later he believes this response was completely logical.

"They'd dragged me out of my house, lied to me and dropped me in the middle of nowhere. So that's why I was angry. I just didn't think that that was right. They were lying to me and then whacking me because I wouldn't listen to them."

Eventually, the nuns sent him back to the state welfare.

"I think the final straw was they used to make everybody line up, and you had to show your underwear. You had to show them to the nuns before you went to bed. If you had gold in them, and I always had gold in mine because I didn't wipe my arse properly, they made you scrub them."

"As a kid, we never had undies anyway at home. So this was a new thing. This scrubbing sh*t, you know, I just wasn't into that."

"It was my turn to show my undies, and I threw it in the nun's face." He roars with laughter at his childhood audacity.

"Boy, did I get a hell of a hiding for that. I got held down by the senior boys while I got whipped by the nuns. After that, that's when they threw me out. I'd just had enough of that sort of behaviour; I just didn't think it was right."

The nuns dropped him off at the airport and told welfare to pick him up.

From there Marks would spend another eight years in various welfare and adult psychiatric institutions. At every turn, there were various forms of abuse that he would react to, which increased the severity of the next institution he was sent to.

At Holdsworth welfare home he encountered a staff member who had sexually abused him at a previous institution, Campbell Park. He ran away with other boys.

"We'd just had enough of the way they had been treating us. We were running away from it. That abuse was by this guy and a lot of the housemasters. They were just horrible to us. Even the teachers, the so-called teachers. Using fists."

"We just wanted to go somewhere where there wasn't anyone doing these sorts of things to you. I dunno where. We stole bikes and started riding. Wherever we ended up was wherever we were going to end up. That's it. But it wasn't going to be there."

"Unfortunately for me, I crossed the wrong side of the road at the wrong time. I just didn't make it to the other side of the road in time. I still have the memory of the car running me over. Until I hit the road and I was knocked out. Because I was stuck to the bike, I was dragged underneath the car for quite a distance."

If that should have been the end of his nightmare, it wasn't. After being treated in hospital for several months, he was moved to an institution that is now notorious - Lake Alice, an adult psychiatric hospital that was the subject of media investigations in the early 2000s that exposed the abuse of both adults and children there.

"They used that [the accident] as an excuse that I'd suffered some sort of brain damage so they could put me in Lake Alice. They were always dying to put me in some sort of institution like that."

"When I got out of hospital, the caretaker from Holdsworth, the general maintenance guy, chucked me in the back of the van to take me there. I didn't know what it was. I thought it was a hospital."

"Straight away I was put in this adult ward with the mentally disturbed type patients. The first night I was there I was sexually abused. I'm a little kid in with all these mental patients. Just left there. No explanation as to why I was there or anything."

"I smashed his [the sexual abuser's] head in with a chair. The next day I was electrocuted."

During the 1970s, Lake Alice used electroconvulsive therapy on a regular basis. And in many cases, it wasn't used as therapy but as punishment. Children in other institutions who were seen as troublesome were sent to Lake Alice. After the first electrocution, Marks' behaviour deteriorated and he was given the punishment three to four times a week without any anaesthetic.

"They wouldn't tell you you were getting it; they would just grab you and take you upstairs. You knew you were getting it. They rounded us up like sheep into a day room, like sheep ready to be slaughtered."

"Then they hold you down, it was like you were being murdered. The f*cken pain is so severe, you're convulsing your whole body. They'd turn it down, you'd sort of come right and then they'd flick it back up again."

"If you were getting electrocuted by the electric chair, this is no different. The thing is, that's a higher voltage. It will kill you. This is to make you suffer. It can kill you, it has killed people. It can fracture your skull, break your bones in your legs. Remember, I'm not fully repaired from my accident. I'd smashed my pelvis, legs, my arms, my whole skull was fractured. And then they were electrocuting me. The same hospital board that saved my life were running this place as

well. They were trying to take it away again."

For the next four years, he was moved around different welfare institutions. He doesn't have good memories of any of them.

"I was put in this adult ward with the mentally disturbed type patients. The first night I was there I was sexually abused. I'm a little kid in with all these mental patients. Just left there."
Tyrone Marks, welfare home survivor

'They never told me why'

Today Marks is the lead claimant in a case taken to New Zealand's Waitangi Tribunal, a body that addresses breaches of its treaty between the Crown and indigenous Maori. The Tribunal is yet to return a finding.

The claim alleges that Maori were disproportionately represented in the welfare institutions and that there needs to be an independent inquiry to understand what happened and why.

It states that the government isn't acknowledging that most of the children were Maori, and that "it will not admit publicly that what happened was wrong".

Marks has never had any real answers to a number of questions that he's been asking since he was a child.

"There was never any explanation. I knew why they took me away from home. But they didn't explain the things they did to me. They never told me why. And they still haven't. There's no explanation for it."

"Maybe it was right for the social welfare to intervene. But they should have intervened and made things right instead of treating me the way they did. They should have just left me where I was. I wasn't sexually abused at home. I might have been mistreated but, sh*t, I wouldn't have had to suffer all the other things that I went through. All I've done while I was in there was survive. What I've done in my life after that is survive. That's all."

"They left me uneducated. They took away what I didn't have anyway. And then treated me like sh*t. Let me be abused at their hands and other people's hands."

"But why? Why?"

"All I've done while I was in there was survive. What I've done in my life after that is survive. That's all."
Tyrone Marks, welfare home survivor

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A quiet genocide: The legacy of stolen indigenous children

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Indigenous peoples throughout English-speaking countries have had their children taken away by the state for generations. Most countries have faced up to this legacy. Will New Zealand now acknowledge its own Stolen Generations?

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‘Cultural genocide’: the shameful history of Canada’s residential schools – mapped

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‘Cultural genocide’: the shameful history of Canada’s residential schools – mapped

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In May, Canadians were shocked at the discovery of the remains of 215 children at the site of a former school in British Columbia. The bodies belonged to Indigenous children, some believed to be as young as three years old, who went through Canada's state-sponsored "residential school" system. The schools, scattered across the country, were aimed at eradicating the culture and languages of the country's Indigenous populations.

The findings have brought the world's renewed attention to this shameful chapter of Canadian history, left deep wounds in hundreds of communities and sparked fresh demands for justice aimed at the Canadian government and the churches that ran the schools for decades.

In 2015, the truth and reconciliation commission, which collected thousands of hours of testimony from survivors, determined that the residential school systems had amounted to a "cultural genocide" of Indigenous people. The federal government formally apologised for the schools in 2008, but the recent discoveries of graves have prompted calls for an independent investigation, including the possibility of criminal charges against the government and the Catholic church.

The prime minister, Justin Trudeau, has pledged to take "concrete action" to help Indigenous communities in their searches, but the costs are expected to far exceed money offered by the government. A previous request of $1.5m in funding to search for the graves was denied by the federal government in 2009. Meanwhile, as the searches continue, the number of unmarked graves - and those who died attending the schools - is only expected to rise.
Sources and methodology
Indian residential schools dataset: National Centre for Truth and Reconciliation at the University of Manitoba
Native land claims dataset: native-land.ca
Historical Treaties dataset: canada.ca
St Eugene mission pictures: Indian Residential School History & Dialogue Centre
Journey animations are based on survivors' testimonies; the Guardian reconstructed the journeys using Google Maps. Distances provided are approximate
This article was amended on 8 September 2021. The earlier version erroneously included the Peace and Friendship Treaties and the Douglas Treaties among the Numbered Treaties.

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'Cultural genocide': the shameful history of Canada's residential schools - mapped

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Recent discoveries of unmarked graves have shed new light on the country's troubled colonial legacy

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Canada pays indigenous people taken from their homes

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Canada pays indigenous people taken from their homes

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Canada pays indigenous people taken from their homes

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Canada pays indigenous people taken from their homes

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TORONTO (AP) — The Canadian government has agreed to pay compensation to indigenous people who were taken from their homes and adopted into non-indigenous families. Indigenous Relations Minister Carolyn Bennett announced the settlement Friday in what’s known as the “Sixties…

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Who Can Adopt a Native American Child? A Texas Couple vs. 573 Tribes

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Who Can Adopt a Native American Child? A Texas Couple vs. 573 Tribes

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A custody battle over this Navajo girl is playing out in a Texas court. Credit... Allison V. Smith for The New York Times

A bitter custody battle threatens affirmative action laws, tribal rights, and the future of one little girl.

A custody battle over this Navajo girl is playing out in a Texas court. Credit... Allison V. Smith for The New York Times

FORT WORTH - The 3-year-old boy who could upend a 40-year-old law aimed at protecting Native American children barreled into the suburban living room, merrily defying his parents' prediction that he might be shy. He had a thatch of night-black hair and dark eyes that glowed with mischievous curiosity. As he pumped a stranger's hand and scampered off to bounce on an indoor trampoline, his Superman cape floated behind him, as if trying to catch up.

Zachary, or A.L.M. as he is called in legal papers, has a Navajo birth mother, a Cherokee birth father and adoptive parents, Jennifer and Chad Brackeen, neither of whom is Native American. The Brackeens are challenging a federal law governing Native American children in state foster care: It requires that priority to adopt them be given to Native families, to reinforce the children's tribal identity.

Last fall, a federal judge ruled in the Brackeens' favor, declaring that the law, the Indian Child Welfare Act, was unconstitutional - in part, he said, because it was based on race.

The case is now before a federal appeals court. Whoever loses is almost certain to ask the Supreme Court to hear it.

The lower-court ruling has shaken the 573 federally recognized tribes, who fear a reopening of the wound that the 1978 act was created to heal: the removal of Indian children by social workers, who would relocate them in missionary schools and with white adoptive families.

Legal scholars say that if the rationale for striking down the law survives, it could also threaten laws that guard tribal casinos and water and land rights.

And the potential ramifications reach far beyond the tribes: If the law falls for race-based, equal-protection reasons, legal experts say, many affirmative action practices might become vulnerable as well.

Ultimately, the dispute is something of a modern Solomonic parable, with two mothers - the tribe and the state - fighting over who has claim to Native American children.

"Culture is important but attachment is, too," said Jennifer Brackeen, whose efforts to adopt Zachary (his middle name, which the Brackeens asked to be used for this article to protect his privacy) after he was placed in her foster care were nearly thwarted a year later when the Navajo tried to move him to an adoptive tribal family.

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Kandis Martine, an assistant attorney general of the Navajo Nation, said that while it might seem painful to remove children from foster homes where they had lived for months, the tribes were thinking about the long trajectory of the children's lives.

"We wonder what will happen to these children down the road and how this will all be explained to them," she said. "How will they be told that their tribe and their family fought for them, but this non-Native, nonrelative family won?"

The Brackeens originally filed the lawsuit because language in the act suggests that Zachary's adoption might be revocable for two years. Now they have fresh cause: When Zachary's 11-month-old half sister was born, both she and her biological mother tested positive for methamphetamine, and the baby was immediately placed in state foster care with another Texas family. The Brackeens want to adopt her, too.

The Navajo Nation, invoking the child welfare act, opposes the couple. Last month, during a tense 10-hour hearing in a Texas family court, the Brackeens fought the tribe as well as the baby's Navajo relatives, who had driven to Fort Worth from the reservation in Arizona, intending to return home with her.

The Brackeens, both 39, are self-conscious about their material success: a large brick home on an acre, with pool, greenhouse, zip line and a kitchen big enough for Zachary and their two biological sons, 10 and 7, to zoom around it on Rollerblades.

Dr. Jennifer Brackeen, an anesthesiologist, works 7 a.m. to 2 p.m. at a day-surgery center. Her husband is a civil engineer turned stay-at-home father and portrait photographer. Their schedule is jammed with sports, music lessons, family hikes and walking their two dogs.

They attend the evangelical Church of Christ twice a week and fill their home with plaques of prayers and inspirational sayings.

When their younger son was 3, they began asking God how they could serve a higher purpose. One way to "rectify our blessings," they thought, was to foster children and, eventually, to adopt one.

Zachary was the seventh child to be removed by authorities from Jackie, his birth mother, now 33, who, according to court testimony, grew up on the Navajo reservation and later moved to Texas. She has long struggled with drugs.

In June 2016, Zachary was placed with the Brackeens as foster parents. He was 10 months old.

The Indian Child Welfare Act covers Indian children who live outside reservations, which puts them under state jurisdiction. Its goal is to unite them with an Indian family.

State workers must show a judge that they are making "active efforts" to reunify a family - providing resources like drug treatment and therapy. The tribe must have a voice in the proceedings. If a birth family is deemed unfit, the tribe can look for an extended family, then an unrelated tribal family and, finally, for another tribe.

A judge can reject the tribe's candidate but only for "clear and convincing" reasons, a high bar.

When Zachary arrived in their home, the Brackeens were told they could not adopt him. For the first six months he had visits with his paternal Cherokee grandparents. His parents showed up for the supervised visitations sporadically, and then not at all. Jackie spent time in jail.

Both parents' rights were eventually terminated, and in May 2017, the Brackeens decided they wanted to adopt Zachary.

"We had tried not to get attached," Dr. Brackeen said. "But if you've had a charming little baby living with you for more than a year, that's hard not to do."

Jackie said she wanted the Brackeens to adopt her son, and his appointed court advocates testified that he should remain with the couple.

But Navajo social workers said they had found an unrelated tribal couple in New Mexico to adopt the boy. A Texas judge ruled for the tribe, citing the child welfare law. The Brackeens had three days to pack up Zachary and say goodbye.

"How do we explain that to him?" Mr. Brackeen said, his eyes welling with tears. "He had already been taken from his first home, and now it would happen again? And the only explanation is that we don't have the right color of skin? How do we explain that to our own children? We'd done nothing but sign up to do good. We were devastated."

They obtained an emergency stay of the judge's order. The tribe ultimately backed out, and in January, the Brackeens finalized the adoption.

As if on cue, Zachary danced around Mr. Brackeen, who swung him up in the air as the boy shouted gleefully, "He's my Da-da!"

Through a Facebook group, other families described hitting roadblocks while trying to adopt Native American babies.

"We realized that what happened to us wasn't random," Dr. Brackeen said. "We wanted to make a change for the future."

The Brackeens agreed to be plaintiffs in a case brought by Texas, Louisiana and Indiana. The Trump administration and five tribes are defending the law.

While the case advanced in court, Jackie gave birth last June to Zachary's half sister. State social workers informed the Navajo but not the Brackeens. They placed the baby with another Texas foster family and began "active efforts" at reunification with Jackie.

"The tribe doesn't owe us anything," Mr. Brackeen said, as Zachary tucked into his lap, getting some shoelace assistance. "But our son? That's his sister. That's not right."

They petitioned the district court that she be placed with them.

"How can it not be in his best interest," Mr. Brackeen said, "to grow up with a sibling who looks more like him than we do, who knows what he's gone through and who shares his story more than anyone else?"

Some scholars cite the opening of the Carlisle Indian Industrial School in Pennsylvania in 1879 as the beginning of the Indian children's diaspora. Students were pulled from reservations across the country to fill the boarding school. Its founder was Brigadier Gen. Richard H. Pratt, who became infamous for proclaiming, "Kill the Indian and save the man."

Forced removal and conversion of Native children continued for decades. Often, Native families were not told where the children had gone. From 1958 to 1967, the federally funded Indian Adoption Project placed nearly 400 Indian children from Western states with white families nationwide.
[See what our readers had to say about their experiences with adoption.]
In 1978, Congress passed the Indian Child Welfare Act to protect "the best interests of Indian children" and to promote the stability of tribes and Indian families.

At the time, studies showed that 25 percent to 35 percent of American Indian children were being placed in foster homes, with 85 percent of those outside their tribal communities.

Some studies have shown that social workers removed many Indian children not for neglect or abuse, but because of the household's perceived poverty. Researchers noted that while Native Americans are disproportionately poor, the ways they often survive - a cash economy, seasonal work, child care with relatives - are norms that elude state workers.

The 1978 act reinforced guardrails to prevent social workers from reflexively removing Indian children and judges from terminating parental rights.

No national databank tracks the law's cases. Indian children still enter foster care at disproportionately high rates. But in districts like Minneapolis and Los Angeles, which have judges, lawyers and social workers trained in Indian cultural sensitivities, the law has significantly helped reunite families.

Indeed, the pillars of the law - giving services to shattered families to avoid prolonged foster care; placing children with relatives rather than strangers; acknowledging cultural identity - have been called a "gold standard" by leading child welfare agencies.

A class at the Carlisle Indian Industrial School in Pennsylvania, around 1901. Some cite the school's founding as the beginning of the Indian children's diaspora. Credit... Frances Benjamin Johnston, via Library of Congress

Students at the Carlisle school around 1890. Credit... via Library of Congress

In 2015, the Goldwater Institute, a conservative think tank in Arizona with donors who have ties to the Koch brothers, put the law on its roster of targets. Goldwater argued in about a dozen cases that the act violated the equal protection rights of Indian children because it was more difficult to permanently remove them from abusive homes.

The Texas attorney general and the Brackeens adapted that theory, and in October it was successful: Reed O'Connor, a federal judge for the Northern District of Texas, ruled the act unconstitutional. The act violates equal protection rights, he said, adding that Congress could not order a state to apply federal law in its own domestic relations case.

If the Supreme Court takes the case, the act's future is uncertain. Justice Clarence Thomas has already indicated he thinks it may be unconstitutional. Justice Brett M. Kavanaugh may view the act with skepticism, too: When he was in private practice, he helped write a brief whose argument became a model for the Supreme Court in a 2000 case that struck down a local Hawaiian election reserved for indigenous people.

Which raises the question: Is the Indian Child Welfare Act based on race?

The act covers a child who is either a tribal member, or is the biological child of a tribal member and is eligible to be one.

Each tribe has its own eligibility criteria, somewhat analogous to a nation's citizenship requirements. The Constitution's commerce clause and centuries of treaties and federal law consider tribes political, not racial, entities.

A lawyer for the Brackeens, Matthew D. McGill, says the act wrongly gives tribes custody of children who should be under state authority.

"That baby was born into the world in Texas and because of her mother's troubles, she was placed in Texas foster care," he said, referring to the little girl the Brackeens want to adopt.

The act, he continued, "was about stopping unjustified breakups of Indian families, but this child has never lived in an Indian family."

When the baby was about 6 months old, the Navajo located a relative who would like to adopt her: Alvetta James, aunt to Jackie the birth mother, great-aunt to Zachary and the baby.

Her two-bedroom house on the Navajo reservation in a remote part of Arizona is at the base of a mountain, where children, aunts, uncles and grandparents hike and forage for plants. A daughter of a medicine woman, Ms. James, 55 and divorced, is a traditional Navajo homemaker: She cares for her ailing brother and mother, as well as her sheep, goats, herding dogs, chickens and horses. Her five adult children - one a weaver and an officiant at Navajo ceremonies - help with her bills. She also receives food stamps.

Four of Jackie's other children live 40 minutes away with Ms. James's sister and visit Ms. James twice a week. Last month, the eldest, Alexandria, 17, accompanied Ms. James on a 16-hour drive to Fort Worth to meet the baby and to face a family court judge who would decide whether she could bring her home.

Ms. James walked into the Texas courtroom wearing a Navajo skirt, moccasins and turquoise jewelry. Although she had taken foster parenting classes to demonstrate her readiness, when she took the stand, she seemed intimidated. Navajo, not English, is her first language. She seemed uneasy looking interrogators directly in the eye, which the Navajo believe is rude.

A lawyer for the Navajo asked, How was the visit with the baby?

"She is adorable, she is happy," whispered Ms. James, tearing up. "Alex interacted with her. The four siblings want little sister to come back now."

Each child had written the baby a welcome letter, she said.

"Why do you want her?" the lawyer asked.

She looked taken aback, as if the answer were obvious. "I love kids," she replied. "And when I saw her picture I started loving her."

The courtroom was unusually full for a foster care custody trial: Chad and Jennifer Brackeen and their lawyers; the Navajo and theirs; the baby's lawyer; a lawyer for state child protective services; and a lawyer for Jackie, who did not show up.

Under the Indian Child Welfare Act, the baby would have gone to the Navajo, absent a glaring problem. But in March, the family court judge in the case, Alex Kim, had echoed the federal judge and said the act violated the state's constitution. He said he would instead apply the Texas family law standard of the best interest of the child.

Celeste Smith, a social worker from the Navajo Nation who supervised Ms. James's home study, took the stand, hair pulled back in a Navajo bun.

"Our Navajo children are sacred to us," Ms. Smith said. "We have our traditions, our ceremonies and our language handed down to our children. We don't want to lose that."

She listed the first laugh ceremony, the blessing way ceremony and the kinaalda, the Navajo puberty ceremony for girls - a four-day ritual with food and extended family to celebrate a girl's entry into womanhood. The girl runs three times daily. "Every day a little further - that tells you to keep going, keep going, that you don't give up," she explained.

Mr. Brackeen, in a suit, took the stand. He spoke about Zachary's attachment to the baby, whom the family had visited.

Zachary asked daily about her, he said. "We feel strongly that these two children should grow up together and support and love each other," he told the court.

The lawyer for the Navajo asked Mr. Brackeen whether he had learned anything in court about Ms. James that gave him pause.

Yes, he said. He had a few concerns.

He was thinking of the baby "not as an infant living in a room with a great-aunt but maybe as an adolescent in smaller, confined homes," he said. "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."

By early evening, testimony concluded.

The state's lawyer stood. Even without direction from the child welfare law, she said, state regulations give first placement preference to a relative. That would be Ms. James.

After a brief recess, Judge Kim emerged with his ruling. Mr. Brackeen clasped his hands and bowed his head. Ms. Smith, the social worker, gripped Ms. James and Alexandria.

The tribe and the Brackeens would share custody, Judge Kim declared, but the Brackeens would have primary possession.

This summer, the judge continued, the Brackeens must take the baby to spend a week with Ms. James. Next summer, two weeks. The following, three. She would eventually spend 42 days each summer on the reservation. They must also share holidays like Thanksgiving and Christmas.

Judge Kim said his Korean-born grandfather and father had understood that by coming to the United States, their offspring would lose parts of their heritage: "But that's part of the decision we make to immigrate to other cultures and countries."

Ms. Smith fixed him with a stony gaze.

He hesitated. "Ms. Smith, certainly your ancestors did not have the choice necessarily of the lands and territories that they live in," he said. But, he continued, Jackie did. She had moved away from the reservation, making that choice "for herself and her descendants."

Culture played a role in his ruling but not finances, he said. He favored placement with the Brackeens because the baby was closest in age to Zachary.

"I know that there's disappointment in here and certainly surprise," he said, "and so you may not agree with my decision, but hopefully you understand why."

Both sides simply looked stunned.

So much remains suspended.

The decision about the act's fate from the Court of Appeals for the Fifth Circuit is imminent.

The Navajo are appealing Judge Kim's custody order.

The case was a "perfect scenario" for the law, said Ms. Martine, the Navajo Nation lawyer. "We have a Native family willing and able to take a child, and we have to fight against a non-Native, nonrelative family for her - this is what ICWA is meant for," she said, using the acronym for the Indian Child Welfare Act, pronounced ick-wah.

Two days after the hearing, the Brackeens took the baby girl home. Reached by phone in their car just before Mother's Day, they sounded elated but also apprehensive about the way forward with people who, for years, had been adversaries.

They are weighing legal options. Their lawyer believes that the judge abused his discretion.

They have many questions. Will sharing custody with the tribe allow them to adopt her? What will those summer visits look like, for the little girl and the other Brackeen children?

"As a tiny child, we can't explain this to her. It's too traumatic," Dr. Brackeen said. "After one week she'll feel like we abandoned her, too."

But for the moment? Mr. Brackeen directed his voice to the noisy back seat, where the baby and Zachary were strapped in. "Are you excited?" Mr. Brackeen asked.

"Yes!" Zachary shouted.

"Why?" his father asked.

"With baby sister!"

On the afternoon before Mother's Day, the extended James family gathered in an aunt's living room. They spoke sadly about Zachary and especially the baby, whom they had believed would be with them.

Tatum, a 15-year-old sister, picked up her ukulele. Mayson, 14, held the music - Queen's "Love of My Life." As Tatum's pretty voice lofted the lyrics, many of the aunts, uncles, cousins and siblings began to weep:
"You will remember
When this is blown over
Everything's all by the way -
When I grow older
I will be there at your side to remind you
How I still love you."
Ilana Panich-Linsman contributed reporting from Chinle, Ariz.

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Who Can Adopt a Native American Child? A Texas Couple vs. 573 Tribes (Published 2019)

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A bitter custody battle threatens affirmative action laws, tribal rights, and the future of one little girl. A custody battle over this Navajo girl is playing out in a Texas court. Credit... Allison V.

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The History and Impact of Residential Schools

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The History and Impact of Residential Schools

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Published on December 19, 2023byAshlee Sierra

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Fortunately, where there are stories to be told, there are people to listen. Survivors are coming together to share their experiences, find connections and perhaps even heal by building new communities. That's exactly what you'll see in "Little Bird" and "Little Bird: Wanna Icipus Kupi (Coming Home)," plus an even more personal example of Indigenous storytelling.

"Little Bird"

"Little Bird" is a limited dramatic series led by an Indigenous creative team. It tells the interwoven stories of residential schools, forced adoption and reconnecting with lost family - all created with input from the perspectives of people who were close to the real events.

"Little Bird: Wanna Icipus Kupi (Coming Home)"

This documentary goes behind the camera to show viewers how "Little Bird" came to life. It's an emotional, deeply personal look at making art that matters, particularly because the creative team and crew can all relate to the story in one way or another.

A Personal Story

Mike Mabin, an enrolled member and citizen of the Little Shell Tribe of Chippewa Indians of Montana and the President and CEO of Agency MABU, shares a story from the Crow Creek Indian Reservation in Stephan, South Dakota:

"On a more uplifting note, the spirit of Indigenous people wasn't exterminated. Survivors, along with their children and grandchildren, are reviving their nearly lost culture, history, traditions, language and Native ways.

"For example, my youngest son recently visited the Indian reservation in South Dakota where my mom (his grandma) was sent to boarding school. Today, there is a modern-day school located on the grounds. It is run by the Crow Creek Tribe and is providing culturally focused, contemporary teaching to Native American children today. Despite the government's attempts to eradicate the Indigenous people and cultures in Canada and the U.S., positive change is occurring."

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The History and Impact of Residential Schools

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Fortunately, where there are stories to be told, there are people to listen. Survivors are coming together to share their experiences, find connections and perhaps even heal by building new communities. That's exactly what you'll see in "Little Bird" and "Little Bird: Wanna Icipus Kupi (Coming Home)," plus an even more personal example of Indigenous storytelling.

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Follow the story of Bezhig Little Bird to uncover the hidden truth of her past.

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The Sixties Scoop and the True Stories Behind Award-Winning Drama 'Little Bird' | PBS

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The Sixties Scoop and the True Stories Behind Award-Winning Drama 'Little Bird' | PBS

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The Sixties Scoop and the True Stories Behind Award-Winning Drama 'Little Bird' | PBS

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Rabbit Proof Fence - Eng - 23,976fps - 2002

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Australian prime minister Julia Gillard delivered a historic national apology in parliament on Thursday to the thousands of unwed mothers who were forced by government policies to give up their babies for adoption over several decades.

More than 800 people, many of them in tears, heard the apology and responded with a standing ovation.

"Today this parliament, on behalf of the Australian people, takes responsibility and apologises for the policies and practices that forced the separation of mothers from their babies, which created a lifelong legacy of pain and suffering," Gillard told the audience.

"We acknowledge the profound effects of these policies and practices on fathers and we recognise the hurt these actions caused to brothers and sisters, grandparents, partners and extended family members," she said.

"We deplore the shameful practices that denied you, the mothers, your fundamental rights and responsibilities to love and care for your children," she added.

Gillard committed A$5m to support services for affected families and to help biological families reunite.

A national apology was recommended a year ago by a Senate committee that investigated the impacts of the now-discredited policies.

Unwed mothers were pressured, deceived and threatened into giving up their babies from the second world war until the early 1970s so they could be adopted by married couples, which was perceived to be in the children's best interests, the Senate committee report found.

The seven-member committee began investigating the federal government's role in forced adoption in 2010 after the Western Australian state parliament apologised to mothers and children for the practices in that state from the 1940s until the 1980s.

Western Australia was the first of five state and territory governments to apologise for forced adoption. Australia has eight such governments.

Roman Catholic hospitals in Australia apologised in 2011 for forcing unmarried mothers to give up babies for adoption and urged state governments to accept financial responsibility.

Catholic Health Australia, the largest nongovernment hospital operator in Australia, said the practice of adopting out such children to married couples was "regrettably common" from the 1950s to the 1970s.

Adoption in Australia is mostly controlled by state laws, but the report found that the federal government had contributed to forced adoption by failing to provide unwed mothers with full welfare benefits to which a widow or deserted wife would have been entitled until 1973.

Australian adoptions peaked at almost 10,000 a year in 1972, before rapidly declining. The report found that decline could reflect the availability of welfare, the use of oral contraceptives and the legalisation of abortion.

Among unwed mothers, adoption rates were as high as 60% in the late 1960s, the report said.

The committee could not estimate how many adoptions were forced but said they numbered in the thousands.

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Julia Gillard apologises to Australian mothers for forced adoptions

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Thousands of unwed women were made to give up their children so that they could be adopted by married couples

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Indigenous Maori mothers in New Zealand were more likely to fall into depression and take their own lives, according to studies

By Preeti Kannan

WELLINGTON, April 24 (Thomson Reuters Foundation) - After a three-year battle with the New Zealand state to get her children back, Maori former nurse Ellen Hiini was recently diagnosed with post-traumatic stress disorder.

She is not alone in her struggle - thousands of indigenous children have been moved into state care under a decades-long practice known as uplifting that many Maori people see as a racially skewed legacy of colonisation.

"I am always anxious," said Hiini, 53, who herself grew up in state care after she was removed from her parents aged 13.

"I didn't realise I had been living with that shame and guilt for many years," she told the Thomson Reuters Foundation by phone.

Hiini's teenage daughters were taken away by the children's ministry in 2017 after her partner was alleged to have sexually abused them, something she denies.

Indigenous rights campaigners and health experts say uplifting disproportionately affects Maori mothers, with studies showing they are more likely to fall into depression and take their own lives.

About 60% of the more than 6,000 children taken into state care in New Zealand are Maori, a group that accounts for about 17% of the population, official figures show.

STOLEN GENERATION

The children's ministry, known officially as the Oranga Tamariki, said family violence was the main reason for removing children, with drug and alcohol consumption also playing a part.

It acknowledged the number of Maori children in its care was disproportionately high, but said it had fallen by about a third compared to a decade ago.

"We have some challenges ahead and we have always said we can't do this alone," a ministry spokeswoman said in emailed comments.

The uplifting of children is among a raft of social issues to have sparked protests and led to rising discontent among the Maori, who say the government has done little to break a cycle of poverty and violence in their community.

Protesters call the children New Zealand's "stolen generation", echoing a term used to refer to indigenous Australians forcibly taken from their families as youngsters under an official policy of assimilation.

Maori women between the age of 15 and 44 were twice as likely as non-Maori women to die by suicide, according to Te Rau Ora, a non-governmental group that runs suicide prevention programmes for the Maori.

"Young Maori women are more likely to report depression and self-harm than men," said its chief executive Maria Baker, who said they were also more vulnerable to domestic violence, sexual assault and institutional racism.

Between July 2018 and June 2019, 61 Maori women killed themselves, three times as many as in the same period a decade ago, data from the chief coroner's office shows.

Resentment and tensions between the Maori people and the government boiled over last year when thousands took to the streets to demand better land rights and an end to uplifting of their children.

The country's biggest indigenous rights protests in more than a decade, they were triggered in part by an attempt to take a newborn baby from her teenage mother in hospital that prompted outrage.

A Maori-led independent inquiry highlighted accounts of discrimination, including of Maori mothers being unfairly targeted by the children's ministry who perceived them as unable to provide a safe environment for their children.

The panel urged the government to introduce legal reforms to end the practice and set up a national help desk manned by the Maori families who need help with caring for children, according to the report, published in February.

The children's ministry said it would "learn and improve" following the inquiry.

The inquiry has forced New Zealand society to take a "cold hard look" at its treatment of the Maori, said David Stone, a lawyer at the Te Mata Law firm, which provides legal advice to Maori families.

'I HAVEN'T SLEPT PROPERLY'

Some Maori campaigners say this may be too little too late, after generations of trauma that have left many women reluctant to get seek help when they need it.

"If Maori women seek help because of domestic violence or because of issues relating to their mental health, more often than not the reaction is to take away the children," said Prue Kapua, president of the Maori Women's Welfare League.

"The effects on the mothers' mental health is enormous and results in depression, anxiety and suicide," added Kapua, whose group works with Maori women and their families.

Maori mother Stacey Maree Mills' three sons were removed in 2017 due to family violence.

She is traumatised, but she resists using medication prescribed for anxiety, fearing it could jeopardise her chances of getting her children back.

"If a mother has had a child uplifted and gone to a doctor for medication, it is used against her in court," said the 34-year-old.

"Since the day my children were removed, I haven't slept properly. When you take away someone's children, you take everything away from them."
Related stories New Zealand's indigenous Maori protest over 'stolen children' Young Maori women lead the battle for indigenous rights New Zealand public hearings highlight dark history of child abuse
(Reporting by Preeti Kannan; Editing by Beh Lih Yi and Claire Cozens. Please credit the Thomson Reuters Foundation, the charitable arm of Thomson Reuters, that covers the lives of people around the world who struggle to live freely or fairly. Visit http://news.trust.org)

Our Standards: The Thomson Reuters Trust Principles.

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New Zealand's indigenous women face trauma over 'stolen children'

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Indigenous Maori mothers in New Zealand were more likely to fall into depression and take their own lives, according to studies

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1h 38m • Drama • 2021

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Back to content top anchor

Connected by blood but separated by circumstances, three cousins spend a lifetime in search of each other. Based on the 1992 novel by Patricia Grace.

2021: Māoriland Film Festival - Opening Night Film, Hawaii International Film Festival Showcase Series: Indigenous Lens, Wairoa Māori Film Festival, Giffoni Film Festival Generator +18 Competition, IN->NZ Indigenous Connections Film Week, Nuuk International Film Festival, imagineNATIVE Film + Media Arts Festival

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3 Māori cousins. Mata, introverted, watchful, a seer of spirits, the child of a Māori mother and an abusive Pākehā (white) father. Makareta, raised to be the princess of her tribe, spoilt and educated in both worlds. Missy, cheeky, insecure and often overlooked, the heartbeat of her family.

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NZ film tells the story of the country’s stolen generation

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Co-directors Briar Grace-Smith and Ainsley Gardiner said their film is a story of colonisation and what’s lost in the process.

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www.maoriparty.org.nz needs to review the security of your connection before proceeding.

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Thousands of children were forcibly removed by governments, churches and welfare bodies to be raised in institutions, fostered out or adopted by non-Indigenous families, nationally and internationally. They are known as the Stolen Generations.

The exact number of children who were removed may never be known but there are very few families who have been left unaffected - in some families children from three or more generations were taken. The removal of children broke important cultural, spiritual and family ties and has left a lasting and intergenerational impact on the lives and wellbeing of Aboriginal and Torres Strait Islander peoples.

Affecting anywhere from 1 in 10 to 1 in 3 children, there is not a single Aboriginal and/or Torres Strait Islander community who has not been forever changed.

Bringing them home

From 1995 to 1997 the Human Rights and Equal Opportunity Commission undertook a National Inquiry into the Separation of Aboriginal and Torres Strait Islander Children from their families. They interviewed over 500 people affected, as well as speaking to organisations and institutions across the country. In April 1997, the Commission's findings were published in the Bringing Them Home report. It detailed the laws, policies and practices that allowed children to be taken from their families, and included many case studies that contest the claim made by many non-Indigenous Australians that the removal of children was in their own interests.

The report contained 54 recommendations to redress the wrongs done to Aboriginal and Torres Strait Islander peoples. A key recommendation of the Bringing them home report was the need for an official acknowledgement of, and apology for, the forcible removal of Aboriginal and Torres Strait Islander children.

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Since colonisation, numerous government laws, policies and practices resulted in the forced removal of generations of Aboriginal and Torres Strait Islander children from their families and communities across Australia.

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The Healing Foundation supports people to better understand their trauma and we work with communities to lead their own healing solutions. We have provided healing for over 7000 Stolen Generations survivors and their families through a range of different projects that address their unique needs. The Healing Foundation has brought a national focus on trauma and healing in Australia.

Our projects are designed to encourage collective healing, where people are supported and empowered to heal through group activities such as gatherings and family reunions. This is particularly important for Stolen Generations survivors who were institutionalised and had connections with land and culture damaged. More than 70% of Stolen Generations survivors that have participated in our projects have reported an improved ability to care for their loss and grief and nearly 80% said they now have an increased sense of belonging and connection to culture. Our Stolen Generations work is supported by an expert reference Group made up of Stolen Generations' survivors.

QLD

Cherbourg Historical Precinct

The project Looking, listening, yarning brings together Stolen Generations survivors, Elders and the general Cherbourg community to engage and interact with filmed, photographic and audio testimonies of former Cherbourg Dormitory and other Stolen Generations children (e.g. interviews made for the Domo Boys and Domo Girls films). Cherbourg Historical Precinct hosts weekly gatherings in the Elders' Room located in the Boys' Dormitory Building. Ration Shed Museum facilitators use the visual and audio stories for discussions, reflection and healing.

QLD

Link-Up Qld Aboriginal Corporation

Link-Up (Qld) will hold a Mapoon healing camp near the site of Old Mapoon. The healing camp is for Stolen Generations members and other Aboriginal and Torres Strait Islander community members who were removed from Old Mapoon by the Queensland Government. The camp will reconnect Stolen Generations with each other and the Mapoon Community. It will include therapeutic activates, singalongs and yarning circles.

NSW

Coota Girls Corporation

The Coota Girls Corporation will host a five-day meeting in Cootamundra to film a tour of the Cootamundra Girls Home to preserve their collective memories of the Home, so these can be shared with descendants and community members.

The Coota Girls Corporation is concerned that incorrect or incomplete accounts are being provided about their collective experiences in the Home and the human rights abuses they experienced under the Aborigines Protection Act 1909-1969. This is important, since full knowledge of human rights abuses is a form of reparations and helps to prevent future violations.

Directors of the Coota Girls Corporation will oversee the planning, filming and editing of the film to ensure it reflects the collective views of survivors.

NSW

Link-Up NSW Aboriginal Corporation

Link-Up NSW Aboriginal Corporation will facilitate a healing camp for up to 50 members of the Stolen Generations, including cultural activities and counselling. This will allow participants to share their stories and reach out to others who have had similar experiences. Participants will also receive free medical checks.

Video recording will also be available during the weekend for those participants who are ready to share their story with the world in the hope that their story could help others in similar situations.

NSW

Kinchela Boys Home Aboriginal Corporation

This project will include two types of activities:

KBHAC Healing Gathering: A two or three day healing gathering to be held in October 2017 in Kempsey, NSW. This will be open to all KBHAC members and KBH Survivors' descendants and family members who may not be members at the time of the gathering but who want to participate in the gathering. The purpose of this gathering is to link the KBHAC community to the sites where a KBHAC Healing Centre and KBH Museum will be located and to continue to build relationships with the local Kempsey Aboriginal and non-Indigenous communities.

KBHAC Descendants, Families and Community Healing Workshops: Four two-day healing workshops to be held in four regional areas of NSW. These will be held in communities where there are clusters of KBH Survivors' descendants and extended family members who have expressed an interest in connecting with KBHAC but who have not had the ability to come to our recent healing gatherings and actively participate in our most recent projects.

WA

The Bringing Them Home Committee WA Inc (BTHCWA)

The project is a continuation of the BTHWA collective healing program staged in 2015-16. The original program stimulated leadership through collective healing in survivors from a range of SW WA missions, Wandering, Marribank, (Carrolup) and Roelands.

This program aims to reclaim the missions as places of healing for Aboriginal people, extend healing through self-leadership, knowledge of culture, history, language and the understanding of the impact of removal and transgenerational trauma to their families.

WA

Kimberly Stolen Generations Aboriginal Corporation

This program will support Stolen Generations members to come together for healing trips on country, one day excursions and participate in yarning circles. Participants will also have the option to either sell their products, keep them, or make donations to worthy causes. Members will also be encouraged to enter art exhibitions and competitions to promote their personal self-worth.

SA

Nunkuwarrin Yunti of South Australia Inc.

This project engages Stolen Generations community members and their families in the development of a volunteer network.

Stolen Generations members will come together to form strong peer relationships, undertake training, and identify activities in which they would like to influence including in important commemoration events (eg. Sorry Day, NAIDOC), healing camps, men's and women's groups, visits to schools and tertiary institutions, and other community events and activities. This will increase self-determination for our Stolen Generations community and ensure their knowledge is shared more broadly.

Need more information?

Resource Centre

Check out the Healing Foundation's collective healing resources or contact us for more information.

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Message: Aboriginal and Torres Strait Islander people should be aware that this website may contain images, voices and names of people who have passed away.

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The Healing Foundation is currently updating this website with new data from the Make Healing Happen report. Please see the
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The Healing Foundation supports people to better understand their trauma and we work with communities to lead their own healing solutions. We have

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Download subtitles for “Rabbit-Proof Fence” (Three mixed-race girls are removed from their mother by the government in 1930s Australia.)