The United States has a long history of removing Native American children from their families and communities, stripping their cultural identities. Now that a 44-year-old protection is at risk, the threat of regression is ever present.
The Indian Child Welfare Act (ICWA) of 1978 is a federal law that was passed to give tribal governments some say in where Native children would be placed in adoption cases. It’s meant to keep Native children connected to their familial and cultural roots.
ICWA applies only to state family court in cases in which Native children meet the definition of an “Indian child” — meaning they are members of, or eligible for membership in, a federally recognized tribe, according to the National Indian Child Welfare Association (NICWA). In these cases, the child’s tribe has a right to intervene.
Now, ICWA is being challenged at the Supreme Court of the United States level, which could lead to the law being overturned. SCOTUS agreed on Feb. 28 to hear a case challenging the constitutionality of ICWA, Brackeen v. Haaland, and arguments are set for Nov. 9.
“To find after all of these years that it’s unconstitutional would require a pretty major explanation. But it’s an alarming case,” said Sarah Deer, Citizen of Muscogee (Creek) Nation.
“We try to be optimistic in this work, but it’s very concerning that the court decided to hear this case.”
Deer, who is a legal scholar, tribal law expert and University of Kansas distinguished professor, has co-authored an amicus brief in the case in which she will help represent two Native adoptees. An amicus brief, meaning “friend of the court,” is an opportunity to present to the court additional sides to consider.
“One of the real catalysts for even getting ICWA passed in 1978 were the testimonies of people who had been ripped from their community and from their culture. They testified in front of Congress and told their stories, and parents who’ve lost children through those social welfare practices of the state also did.
“Those testimonies have always been very, very important.”
Three local Native adults who were adopted into white families as children shared their stories about the effects that cultural erasure through adoption has had on their self identities and senses of community.
‘A tremendous sense of loss’
Jason Swartley, 53, was always told he was Native American but had nothing tangible to prove it to himself and others.
Because he was born in 1969 and then adopted before ICWA was passed, he did not reap the benefits of those protections. It was not until seven years ago that he was finally able to connect with his biological family.
“A lot of things that would happen today did not happen with me. Normally a Native child would have been enrolled in their tribe automatically and then given a lot of information. That was not the case for me,” Swartley said.
“I was not enrolled, I had no documentation of that [and] I had no idea what tribe. So it was ‘allegedly’ a part of who I was, but I had no validation of that. It’s this feeling — a tremendous sense of loss.”
Swartley said his mother relinquished him at birth and he was adopted into a white family at around 3 months old. Because he was just a baby, ICWA had not yet been passed and some open record laws were not yet passed in Colorado, he was never connected with his biological family.
When he was able to find his biological family in early 2015, he said he was “hungry to keep learning more.”
Though he was never able to meet his birth mother and biological grandmother before they died, he connected with his two biological brothers and aunt.
“It’s been an incredible journey, I mean, so many powerful emotions linked to that over the past few years,” he said. “At the same time, it’s given me a sense of peace and belonging that I don’t know I’ve had before. All my life I’ve struggled with not being sure who I am, I think, so to speak, and I think a lot of that at high tide is from quite literally not knowing who I am.”
Swartley, who’s an enrolled member of the Santee Sioux Tribe of Nebraska, now volunteers as the pantry director of the Kansas City Indian Center in Kansas City, Missouri as well as individually helps to nurture Indigenous culture in his community. Giving his three grown children, four grandchildren and community the connection he was not given the opportunity to have is important, he said.
In order to move forward, he said, America must reconcile with its history — both good and egregious. ICWA was passed in response to the alarming rate of Native children being removed from their homes en masse, first through residential schools and then individually through adoption or foster care systems. Swartley said efforts to overturn ICWA disregard the initial reason the law was created.
A study during the year ICWA was being passed found that 25-35% of all Native children were being removed by state child welfare and private adoption agencies, and of those, 85% were placed outside of their families and communities.
“We need to teach even those difficult parts of history. We see a movement today to get away from that — people want to not teach all these things because they might make someone feel bad. I see parallels with what’s going on with ICWA. There are so many people who don’t know the history, or if they do know the history, they want to bury it,” he said.
“From everything we’ve gone through and everything we’ve suffered, just having our children removed from us, removed from our culture [and] removed from their way of life and their traditional values, ICWA is something that’s needed,” Swartley said.
‘We belonged to the wrong culture, almost’
Given the chance, Jerome Staab would have liked to connect on a deeper level with his biological mother before she recently became ill.
His mother has struggled with alcoholism her whole life, and he and his siblings never knew who their father was, he said. Staab said he’s been able to piece more moments and information together from his oldest biological brother, who remembers the most out of all of them.
Growing up, Staab recalls his biological mother always being referred to in a negative way, but that’s not necessarily how he felt about her.
“She’s an alcoholic, and everyone has their issues, but we were never given the chance to be connected with her. It wasn’t that she didn’t want anything to do with us; it was just that my adoptive parents never built that bridge,” Staab said.
Staab, 37, was adopted into a white family when he was 5 or 6 years old, along with four half siblings, all with the same mother, and one cousin. The only memory he has from being adopted was all of them hiding in the basement or in a closet and the state workers having to physically remove them from the home.
Staab and the rest of the kids then grew up in Iowa with their adoptive father, who was a second-generation German farmer, and mother, who was a school teacher. Their parents had two biological children, who became the oldest of eight total children.
Though he had a happy childhood filled with sports and playing outside, Staab said his parents made “zero attempt” to expose him to Native identity as he was raised going to a Roman Catholic church every Sunday and Wednesday and attended predominantly white private schools.
“It was a difficult journey because in a private school it was all white people, so you kind of see yourself that way. You don’t see color, but not in the way that people use the term now,” Staab explained. “It’s like, you’re just so deeply integrated with all the kids who are around who look the same that you just kind of assume that you look the same way, and it’s not until somebody says ‘Hey, you look different’ that you stop and think ‘Oh, I guess I do look different.’
“We always felt like we belonged, but again, we belonged to the wrong culture, almost.”
Staab, who’s of the Santee Sioux Tribe of Sioux City, Iowa, said it wasn’t until he attended Haskell Indian Nations University in Lawrence in 2007 that he learned “what it meant to be Indigenous.”
He now lives in Overland Park with his girlfriend and their 6-year-old daughter. Though he remains close with his adopted family, specifically his father, Staab said he feels at times he has two separated identities.
“The only issue is it’s night and day. I have essentially my white family, and they’re totally, completely disconnected from my Native side,” Staab said. “They don’t know anything about it. They don’t understand the culture. A lot of my Native side … it’s poverty-driven, all the issues that go with that, and frankly a bunch of kids without fathers. There’s a lot of aunties and grandmas raising kids.”
Nonetheless, Staab said he holds mostly positive regards toward his life’s course.
“Everybody’s story is unique, and I’m grateful for my different perspective. I’ve been afforded opportunities to be successful. But also, I was disconnected from my family, so I lost a lot of my Native culture, which I had to go back and relearn myself,” Staab said.
“I think ultimately ICWA is a good thing. It’s of course good to keep Natives with Native families, but it doesn’t always turn out bad [if they are not].”
‘It was just a lot of displacement’
For the entirety of her life up until about 12 years ago, Lupe Krehbiel was told she was “Mexican.” That wasn’t true, but she wouldn’t truly know that until she was well into adulthood.
“It was just a lot of displacement,” Krehbiel said. “Sometimes I didn’t know where I fit. I’ve never lived on a reservation, I’ve always lived in a white family. But you can’t prove it because it’s like ‘Well, where is your card? What tribe?’ You don’t really know your identity.”
Krehbiel, 54, was born in Texas and adopted into a white family when she was 3 1/2 years old. Her adoptive mother and father were white, and she lived with seven adopted siblings. She said her adoptive parents were able to move her to Kansas and officially adopt her there in the early ’70s. She moved to California in fourth or fifth grade, where she grew up, and then moved back to Kansas in her 20s.
Her biological father died when she was a baby; her mother would leave the older children in charge of caring for the younger kids for long periods of time; and her grandparents were deemed unfit to care for them because their grandfather was sick with tuberculosis, she was told.
Krehbiel’s two biological, older sisters, who were adopted into a different white family in South Dakota, shared with her about their lives.
When she was in fourth or fifth grade, Krehbiel said, she would write letters to one of them before losing contact for a while. She recalls one sister telling her stories of traveling with their parents, who were missionaries or preachers, indicating her other biological siblings were said to be Mexican, too.
“They would go to the reservation and people would ask them why they had Native kids and they would say ‘They’re not Native, they’re Mexican.’ They said they would be stared at and questioned when they were little.”
She remembers around 12 years ago on New Year’s Eve when her biological sister, Mary, called her house phone looking for “Lupita” — Krehbiel’s full name. By the end of the night, she’d spoken to all of her biological brothers and sisters.
After reconnecting with them, Krehbiel learned her biological father and grandfather were Apache. She then dug further into her heritage on Ancestry.com and found most of her family roots are in Texas, she said.
Krehbiel is now involved with supporting Native American communities and educating folks about issues such as cultural appropriation through the Kansas City Indian Center, where she serves as the office manager.
Though she’s found joy in years of submerging herself in community activism, Krehbiel said she still feels she has to explain herself because many family members and close friends don’t understand her Native identity. When sharing about the violence perpetrated against Native people, she has faced opposition from family members because much of that history isn’t included in school textbooks, which has been another reminder of whitewashed history.
She emphasized the importance of continuously expanding one’s mind, saying, “I’m always learning. If I don’t know, I try to find out.”
What’s to come?
As part of her co-authored amicus brief in Brackeen v. Haaland, Deer is working alongside two other Native attorneys and the National Indigenous Women’s Resource Center to tie together the “crisis of chid welfare in Indian Country to violence against women,” she said. Deer explained her hope that the Supreme Court will grasp concepts beyond what is simply in front of them.
“The pessimist potential is pretty bleak, but that would be that the court declares that Indian citizens are really a race of people and not political. That could have huge ramifications for tribal sovereignty because special treatment of Native people, if we’re a race, would violate race discrimination laws,” she said.
“So we really need the court to understand that tribal citizens come in all different races and colors — that it’s a political identity, it’s not a racial category and that is something I don’t know that all the members of the court will be able to get their heads wrapped around.”
Staab said the attempt to overturn ICWA contributes to the U.S. government’s destruction of Indigenous culture, which is why Native people “have an innate distrust with the government.”
Through repeated violence against Indigenous populations, Swartley said he must rely on inter-community healing.
“That’s just kind of the Native mentality about our songs, our stories, our dances, our culture — it’s all healing,” Swartley said.
National resources, such as National Boarding School Healing Coalition and First Nations Repatriation Institute, are aimed at reconnecting and healing Native adoptees, especially those adopted prior to ICWA’s passing.
Read more about local leaders and activists who have discussed Indigenous erasure through residential schools at this link; forced sterilization at this link; land/people acknowledgements at this link; Missing and Murdered Indigenous People at this link; and abortion bans at this link and this link. More information about ICWA can be found at this link.
Note: This post has been corrected from a previous version.