SCOTUS Considers Genocide
Image from Joe Ravi via Wikimedia Commons; used under creative commons license.
The phrase “children are the future” is undoubtedly cliche. It is, however, highly appropriate for Native communities. After centuries of repression, Native communities now struggle to maintain their distinct cultural and political identities. Languages and traditional practices have become endangered for many tribes, with knowledge-holders often being older. With fewer children being brought up in Native homes, many in Indian Country fear their tribe will lose important aspects of their culture. While some tribes have successfully revived traditions, it is much easier to pass down traditions than it is to recreate them. Thus, Native communities are deeply concerned about their childrens’ ability to both grow up around their culture and maintain their distinct identity as part of the tribe.
For decades, the United States had a policy of removing children from their families specifically so Indigeous culture and identity would not slowly fade away. Some children were forced to attend boarding schools, often funded by missionaries, where they were forced to relinquish their Indian ways. “Kill the Indian, save the man” was the motto of the Carlisle Institute. Some children were taken and placed with white families to be adopted. Some estimates indicate that there were times at which the government removed one in three Native children from their families, with 85 percent of those children being placed with non-Indian families. It became so rampant and destructive, Congress passed the Indian Child Welfare Act, or ICWA, in 1978.
The law is rather simple: if an Indian child should be adopted or removed from their home and placed in a foster home, the tribe should have a say in the removal along with a specific order of preference based largely on tribal citizenship as to where the child is placed. The law was intended to protect Native communities and prevent children from being removed unnecessarily. It has been relatively successful at reducing Native child out-adoptions despite legal challenges, though the law remains underenforced and contentious for some child welfare advocates outside Indian country. The Goldwater Institute takes particular interest in the issue, mounting several high-profile challenges to the law. Most recently, they played a major role in the current challenge, Brackeen v. Haaland. The challenge comes from a white evangelical family with the backing of several high profile groups, including the Goldwater Institute and the State of Texas.
My purpose in writing this article is not to detail all the specifics of the case, nor to exhaust the legal justifications for preserving ICWA. Rather, I want to argue one particular facet of the law, which has not yet been discussed greatly. That is, I am arguing that eliminating ICWA amounts to an endorsement of genocide. I’m a believer that extraordinary claims require extraordinary evidence, and there is an immense amount of evidence to support this claim. I specifically rely on the United Nations Convention on the Prevention and Punishment of Genocide, the first human rights treaty passed by the UN General Assembly. This international convention is a treaty which requires countries to take necessary measures to prevent certain acts which it defines as genocide. One such provision bans “forcibly transferring children of the group to another group.” The United States ratified the convention in 1988.
The convention was created in 1948 in response to the Holocaust. The word “genocide” had been put forward to describe both prior genocides and the Holocaust specifically, but much of what shape international definitions were derived directly from how the Nazis carried out their genocides. One policy Nazis used against Polish people was the kidnapping of children to “Germanize” them, a mirror of US policies of forced assimilation. While some might assume genocide refers only to the killing of a particular people group, the legal definition is broader to include all attempts to diminish or eliminate a people as a distinct group, including forced assimilation, especially of children. The similarities between Nazi and US child assimilation policies are striking and clearly reflect the kinds of policies the Convention on Genocide seeks to prevent.
The core argument against the Indian Child Welfare Act is that it violates the Equal Protection Clause of the Fourteenth Amendment. The Brackeens’ lawyers argue that giving preference to Indians in the adoption of Indian children is race-based discrimination against non-Native people. While I could attack the notion of “reverse racism,” I’ll stick to the law. The ICWA does not in any way constitute a race-based classification. To the uninitiated, that might seem peculiar, but to those who study Native policy, we know that being designated as an “Indian” is a political classification based on citizenship, not race. The extent to which race is a factor has been imposed by the United States in an effort to diminish the number of people who can claim rights as Indigenous people.
Tribal citizenship is determined by tribal governments. It is a fundamental expression of tribal sovereignty. The plain language of the ICWA means it applies to all tribal citizens and their eligible children (regardless of race) and does not apply to any non-tribal citizens, regardless of whether they racially identify as Indian. Tribes, like the United States itself, are sovereign nations with their own governments and their own citizenship requirements. The Supreme Court has repeatedly determined that being “Indian” is a political classification, not racial, but the Brackeens are attempting to change that. If successful, it could upend practically all Indian law.
If the ICWA is determined to be based on racial classification in violation of the Equal Protection Clause, it will have to survive “strict scrutiny,”—the law must further a compelling governmental interest and be narrowly tailored to serve that interest, using the least restrictive means necessary. Passing strict scrutiny tends to be very difficult, but I believe the ICWA should easily pass. The fact that the United States is bound by the Convention on Genocide, and has acknowledged that obligation by ratifying it, means the state has an obligation to prevent the forceful transfer of Native children to non-Native families. The ICWA is essential to the protection of Indigenous communities and the perpetuation of Indigenous cultures and identity. If the ICWA is overturned, more Native children will be removed from their families and most will be placed in non-Native families, disconnecting those children from their communities and likely resulting in further reduction in tribally identified Natives. It will amount to an official governmental approval of genocide, as defined by the UN. While the ICWA should easily pass any level of scrutiny, as it is based on political status and tribal sovereignty, it is also necessary for the prevention of genocide under international law. The ICWA must be strengthened and enforced, not overturned.