Oklahoma organizations, foster families react to developments in Supreme Court’s review of Indian Child Welfare Act

Cherokee Nation citizen Kim Duncan’s three adopted daughters, from left, Shalyn, Shyanne and Shelbi, sit smiling with their watermelon in the summer heat. 

WASHINGTON – 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.

“They closed the boarding schools and opened up CPS (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 go to an extended family member, even if the relative is non-Native. Second preference is someone within the child’s tribe; third preference is another tribe.

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

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. Another argument is that the law commandeers states too much, giving federal law imbalanced influence in state affairs.

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

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

CN 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.

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

“There was this bias that would lead to children being placed in foster care for things that weren’t abuse or neglect but things mainstream social services didn’t understand,” Nimmo said.

Te’Ata Loper, 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 a 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.”

One mother from the CN has seen the impacts Indigenous children face when raised in non-Indigenous homes. 

Kim Duncan adopts and fosters children through the tribe. She and her husband, also a CN citizen, became certified to foster and adopt in December 2017 and shortly thereafter took in two girls who were 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, 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 in the adoption of Jennifer Bailey’s now 7-year-old Cheyenne daughter. Bailey is a citizen of the Cheyenne and Arapaho Tribes. 

The birth mother, Bailey said, walked away from the adoption agency and chose she 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.

Nancy Marie Spears, a Gaylord News reporter based in Washington, is a Cherokee Nation citizen. Gaylord News is a reporting project of the University of Oklahoma Gaylord College of Journalism and Mass Communication.