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Advocates worry federal law protecting Native adoptees could be overturned by Supreme Court

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Advocates worry federal law protecting Native adoptees could be overturned by Supreme Court

Aug 06, 2022 | 4:43 am ET
By Laina G. Stebbins
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Advocates worry federal law protecting Native adoptees could be overturned by Supreme Court
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Susan Devan Harness | 1965 photo by Jed Devan

As far as Susan Devan Harness knew, she was an only child whose birth parents died in a car crash long ago.

Only in her early 20s did Harness — a Native American adopted by a white couple — realize that not only was her birth mother alive and located just 30 miles away, but she also had eight siblings who had been searching for her for years.

Having grown up in the rural American West amid widespread anti-Native sentiment, Harness was faced with a complex and emotional journey to find her true identity.

Advocates worry federal law protecting Native adoptees could be overturned by Supreme Court
Susan Harness | Photo by Rick Harness

“I wouldn’t take pride in being American Indian until I was in my 40s,” said Harness, who is now an author and member of the Confederated Salish Kootenai Tribes based in Montana.

Harness’s story is one of countless others among Native American transracial adoptees, many of whom have not been as lucky to reconnect with their family and Indigenous identity due to being cut off for so long.

For the last 44 years, a federal law called the Indian Child Welfare Act (ICWA) has sought to prevent these situations by prioritizing that Native children adoptees be placed, when possible, with Native relatives or other members within the child’s tribe.

But after months of consequential rulings by the U.S. Supreme Court’s right-wing majority, four cases teed up for hearings by the court this fall are prompting worries that ICWA, too, could be toppled or drastically altered.

Such a move could also have larger implications for tribal sovereignty, as did the recent SCOTUS ruling in Oklahoma v. Castro Huerta.

“A big concern is that there’s a long intergenerational history in the United States of children being removed from their families,” said Wenona T. Singel, an associate professor of law at Michigan State University, associate director of the Indigenous Law & Policy Center and a citizen of the Little Traverse Bay Bands of Odawa Indians (LTBB).

Singel’s family, like Harness’ and many other Native families, also has a long history of children being removed and “lost to adoption.”

“The purpose of ICWA is to put a stop to that by providing procedural protections when an Indian child is being placed. So I think it would be devastating if the Supreme Court were to undo these protections for Native families,” Singel said.

The cases in question scheduled for the fall include:

Advocates worry federal law protecting Native adoptees could be overturned by Supreme Court
Wenona T. Singel | Michigan State University

The cases will be heard simultaneously. Brackeen v. Haaland, the principal case at hand, is being brought by non-Native foster parents who argue ICWA is unconstitutional and perpetuates racial discrimination. Chad and Jennifer Brackeen had sought to adopt Native children they had been fostering but ran into complications due to ICWA’s protections.

The Navajo Nation has filed an opposition brief and supports placing one of the children with her Navajo great-aunt.

“I think they’re not looking just for a way to undo ICWA — they’re looking for ways to undo a lot of a lot of agreements [with tribes],” Harness said. “They’re looking for a way, I think, to undo a lot of history. … So this is really a small piece of it, but it’s an important piece of it.”

Allie Greenleaf Maldonado is chief judge of the Little Traverse Bay Bands of Odawa Indians Tribal Court, an LTBB citizen, member of the Turtle Clan and an expert on the ICWA.

Speaking on Brackeen v. Haaland, Maldonado referenced a Navajo boy who was adopted by the non-Native plaintiffs in the case.

“That child will never know his Indian name until maybe he’s an adult and goes and finds it. So that means that the Creator won’t hear his prayers,” she said.

As a result of ICWA, “I’m the first generation in my family to not be removed,” Maldonado said. “… Because of the Indian Child Welfare Act, I have a family.”

She told the Advance that when speaking about ICWA, it is important to see the issue of adoption to non-Native families as just one of a series of policies by the U.S. government to “break the fabric of Native American families.”

Before Native children were systematically and forcibly adopted out to non-Native families, the government had used Indian residential schools as a method to separate Indigenous children from their people, language, ceremonies and ways of life.

Advocates worry federal law protecting Native adoptees could be overturned by Supreme Court
LTBB Chief Judge Allie Greenleaf Maldonado and family

Among the last so-called boarding schools to close in the United States was in Harbor Springs, Mich. The Holy Childhood School of Jesus, notorious among survivors for being particularly cruel and abusive, closed in the mid-1980s. The bodies of Native children have been found buried in recent years in the area surrounding the former school.

“Once the boarding schools fell out of favor, the policy did not. And it switched to the removal of kids into non-Indian, non-relative placement,” Maldonado said. “… This, to me, is just the next step of the extermination of Native people. They’re not done.”

Despite Maldonado being spared from separation thanks to the implementation of ICWA in 1978, her mother was not.

Maldonado said her mother was removed from her own family and placed in a Mennonite minister’s home; taught to be ashamed of being Native; told to lie and claim she was Armenian rather than Anishinaabe; forced to cut her hair; prohibited from practicing religion; abused; forced to put Clorox on her skin in an attempt to “lighten” it; and told that her birth family didn’t want her.

Her mother’s trauma and loss of culture from that experience affected Maldonado and her family in unmeasurable ways.

“This is the parent I was left with: A person who turned to substances and was just broken. So for me, these federal government policies broke my family,” Maldonado said. “It took my family, my history, everything from me, my culture. I grew up without my language, I grew up without my culture.”

Maldonado eventually found her way back to her tribe after the LTBB gained federally recognized status in the 1990s. She connected with her great-uncle, who returned her family history to her and allowed her to heal and find new purpose.

Advocates worry federal law protecting Native adoptees could be overturned by Supreme Court
Holy Childhood of Jesus Catholic Church (formerly the Holy Childhood School of Jesus), Harbor Springs, Mich. | Laina G. Stebbins

ICWA eventually allowed her to complete her family when, after marrying and turning to foster care and then adoption, the law put Maldonado “first in line for a Native child who needed [a home].”

The significance of her being able to raise an adopted Indigenous child in the Anishinaabe culture and knowledge is far from lost on Maldonado.

“[My son] would have grown up in a nice family hundreds of miles away and known nothing about who he was,” she said. “Instead, he’s been raised in his community and in his culture. He’s going to be able to continue the traditions and the culture and the government of the tribe.

“… Maybe one day, he might grow up to be a leader in the community. And that wouldn’t have been possible without the Indian Child Welfare Act.”