Hurray for the Supreme Court

Last week the Supreme Court upheld the Indian Child Welfare Act. “The bottom line is that we reject all of petitioners’ challenges to the statute, some on the merits and others for lack of standing,” Justice Amy Coney Barrett, the conservative Trump appointee, wrote in her majority opinion. Justices Alito and Thomas were the only dissenters.

In brief snippets on National Public Radio, we were reminded that prior to the 1978 Act, “hundreds of thousands” of Native children were removed from their families and tribes. One account said that fully one-third of Native children were being removed from their families over decades in the twentieth century.

White America’s attempts to make Indians a “vanishing race” were always based on the idea of racial and cultural superiority of Euro-Americans. Indians were “pushed away” with Indian Removal of the 1830s, and with treaties from earliest days up to 1871; and wars, from the beginning up to the Indian Wars of the 1870s, killed Indians and moved tribes to smaller and smaller reservations.

Gaining Native lands was of course always a primary goal, but the racial-cultural superiority belief was a strong second reason for “subduing” Indians. They might have looked stunning in war paint and feathers, and thanks for providing us with beaver furs and buffalo hides, but by the late 1800s buffalo and beaver were about gone, and Indians were still here. The answer—led by many people in and out of government who believed that they had Indians’ “best interests” at heart—was to make Indians white, to absorb them into mainstream America, to “assimilate” them.

The tools were often crude: the Allotment Act tried to make Natives yeomen farmers who owned individual plots of ground—and paid taxes. Dances and regalia were outlawed on reservations in the late 1800s, and in that same period boarding schools, the meanest effort at assimilation, broke up families and subjected children, often taken by guile and force from their parents, to relentless and cruel tactics of assimilation. Students were stripped of clothing, hair, language and culture, and expected to learn white ways. Especially white ways of service: they were trained as seamstresses and cobblers, farm workers and, at the highest rung, nurses.

But that wasn’t the end. According to “The Upstander Project”:

“Once the success of the boarding schools was called into question, the dominant belief was that Native children were better off raised in white homes. To that end, in 1958, the Bureau of Indian Affairs created the Indian Adoption Project, administered by the Child Welfare League of America, to promote adoption of Native children from sixteen western states by white adoptive families in the East.

“In 1966 the BIA announced… that adoptions of Indian children through the Indian Adoption Project, with help from the Child Welfare League of America, were increasing and boasted that “little Indians” were brightening the homes and lives many American families, mostly non-Indians. The children ranged in age from newborn to 11 years.”

For a dramatic portrayal of the abuses of Indian children in foster care, read Minnesota Ojibwe writer Marcie Rendon’s mysteries, Girl Gone Missing, and Murder on the Red River, in which she shows Midwest farmers exploiting Native foster children in farm and domestic work. Hundreds of thousands of Native children were fostered and adopted by white parents, many believing that it was their duty to make these children white. A few parents, as is always the case with adoptions, tried to help their adopted children find biological roots. Some children, like the highly regarded film director Chris Eyre (“Smoke Signals”), explored and found tribal roots. And the children of Indians adopted out—i.e. the next generation, like our own Joe Whittle in Wallowa County—are reaching back to find tribal roots.

In addition to the Adoption Project, the 1950s also saw “termination,” the attempt to extinguish tribes and tribal sovereignty, and “relocation,” the small cash attempts at sending reservation youth to cities for training programs and work. Both of those Eisenhower administration programs were dismal failures.

In the early 1970s, violent and non-violent attempts at gaining, or in the case of tribal people “regaining,” personal and cultural freedoms, black and brown people in the US began asserting themselves legally and extralegally. There were protests and takeovers that made headlines, but it was legislation that set a new tone. In 1978, Congress passed the Indian Freedom of Religion Act, giving protections to sacred sites and practices that had eluded the nation’s vaunted freedom for and of “all” religions since the founding documents.

Also in 1978, Congress passed the Indian Child Welfare Act. And last week, with two of its conservative Trump era appointees weighing in on the Indian side, that act was upheld against the threats of a few adoptive parents and three southern states who had gone to the Supreme Court to upend the law. Judge Barrett wrote the majority opinion, but Judge Neil Gorsuch wrote a blistering concurring view that tied this act—and by easy implication the entire issue of tribal sovereignty—to the Constitution.

“In adopting the Indian Child Welfare Act, Congress exercised that lawful authority to secure the right of Indian parents to raise their families as they please; the right of Indian children to grow in their culture; and the right of Indian communities to resist fading into the twilight of history. All of that is in keeping with the Constitution’s original design.”

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Photo is of Justice Neil Gorsuch

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