Indian Child Welfare Act
From left, Shalyn, Shyanne and Shelbi — Kim Duncan’s three adopted daughters — sit smiling with watermelon slices in the summer heat. (Provided)

Cetan Sa Winyan, director of the American Indian Movement’s Indian Territory Oklahoma chapter, said all tribes — not just the four already petitioning the U.S. Supreme Court — should stand together against potential changes to the Indian Child Welfare Act in a case the court has been asked to review.

Texas is challenging the constitutionality of ICWA, claiming it’s a race-based system that makes it more difficult for native kids to be adopted or fostered into non-native homes. Plaintiff attorneys also argue that the law commandeers states too much, giving federal law an imbalanced influence in state affairs.

Gaylord NewsThis story was reported by Gaylord News, a Washington reporting project of the Gaylord College of Journalism and Mass Communication at the University of Oklahoma.

“They closed the boarding schools and opened up [Child Protective Services], but it’s the same thing— they’re still coming in and taking our children,” Winyan said.

The ICWA was enacted in 1978 to help keep Indigenous children in Indigenous homes. In ICWA cases, the first preference for placement is that the child goes to an extended family member, even if the relative is non-native. The second preference is someone within the child’s tribe; the third is another tribe.

The law aimed to quell the disproportionately high rate of Indigenous children’s removal from their traditional homes, culture, language and dress. Before ICWA passed, 25 percent to 35 percent of all Indigenous children were being forcibly “assimilated” from intact Indigenous family structures to predominantly non-Indigenous homes.

The Cherokee Nation of Oklahoma, the Oneida Nation of Wisconsin, the Morongo Band of Mission Indians of California and the Quinault Indian Nation of Washington are petitioning the Supreme Court to request that the bill remain intact.

A Supreme Court response to the tribes’ petition and the petition filed by the plaintiffs is due Oct. 8.

‘Absolutely an attack on tribal sovereignty’

Tribes and advocates argue ICWA is culturally and politically based, not race-based because tribal nations have political status as sovereign governments under federal law. 

Cherokee Nation Deputy Attorney General Chrissi Nimmo said the tribe will put all the resources it has into making sure ICWA is protected.

“ICWA attempts to keep children connected to their tribe (…) and an attack on that is absolutely an attack on tribal sovereignty,” Nimmo said.

Te’Ata Loper, who works as a partnership grant coordinator for the Oklahoma Indian Child Welfare Association, said ICWA is “vital to the continuation of our tribal nations and tribal families” and is optimistic the court will maintain tribal sovereignty given the legal precedent found “in countless Supreme Court case decisions.”

The Oklahoma Indian Child Welfare Association is nonprofit supporting Indigenous families and children by providing advocacy, education, training and collaboration with Oklahoma tribes and partner agencies.

AIM Indian Territory also provides a support system for tribal families trying to navigate the child welfare system. Winyan said the organization has been working to educate Oklahoma tribes about what’s been happening with ICWA in the courts. 

She knows some don’t understand the politics of it — or the severity — but Winyan said many can understand ICWA’s impact when it’s compared to the boarding schools era. 

“It’s just another form of saying, ‘Kill the Indian, Save the Man,’” she said. “It hasn’t changed.”

‘That’s how traumatic it was’

One mother from the Cherokee Nation has seen the challenges Indigenous children face when raised in non-Indigenous homes. 

Kim Duncan adopts and fosters children through the tribe. She and her husband, also an enrolled Cherokee citizen, became certified to foster and adopt in December 2017 and shortly thereafter took in two girls who were also Cherokee.

The girls, then ages 9 and 10, had gone through six different non-Indigenous homes between Dec. 13 and Dec. 28 of that year, by the time Duncan and her husband became their seventh and final home. 

“The other six homes before us completely shut down and said, ‘we don’t want any more kids,’” Duncan said. “That’s how traumatic it was (…). ​​They were probably the hardest two we’ve ever taken in and we ended up adopting them, and they are totally different kids now.”

Duncan said leaving the ICWA as it is would mean that Indigenous children like hers would still get to grow up in homes where they are surrounded by people that not only sometimes look like them but speak their language and understand their culture. 

A non-Indigenous home, she said, just can’t provide those needs to Indigenous children.

Duncan said when they made a home for their two girls, they were immediately drawn to Duncan’s husband because he was perhaps a familiar — darker — face.

“They just related to him more,” Duncan said. “My children are darker-skinned, most of them, and they related to them.”

Duncan has fostered 14 children since 2017 and adopted three of them. 

“People that are non-Indian are not as passionate about keeping the language strong, the culture strong,” Duncan said. “If we allow our Indian children to be adopted by non-Indian homes, we’re going to lose it.”

ICWA applied for the adoption of Jennifer Bailey’s now 7-year-old daughter. Bailey is a member of the Cheyenne and Arapaho Tribes. 

The birth mother, Bailey said, walked away from the adoption agency and chose her and her husband to raise her child because the child and Bailey were of the same tribe.

Bailey said she’s concerned that changing ICWA would lead potentially to long-term impacts on culture and language preservation because it will keep Indigenous children from staying connected to their history and ancestry.

Nimmo said if ICWA is ruled as unconstitutional, as “race-based,” it would open the door to dismantling other Indigenous laws using that argument.

“Nothing else that we deal with as tribal people — land doesn’t matter, money doesn’t matter, language doesn’t matter, artifacts don’t matter if we don’t have future generations,” Nimmo said.