Native American tribes have for years worked to overcome the damage done by the federal government in the early part of the 20th Century and beyond. And last week, the Fifth Circuit Court of Appeals handed the tribes another victory in the ongoing struggle to maintain their sovereignty.
At stake here was the very future of children, in the form of the Indian Child Welfare Act of 1978. On its face, the law is straightforward: Native children who are up for adoption will be routed to homes of relatives or other tribal members whenever possible. Logic suggests that after over 40 years, special interest groups and would-be adoptive parents of other races would have accepted the fact the ICWA is critical for keeping Native children connected to their ages-old culture and traditions. Yet here we are, once again, wrestling with the notion that Native tribes have the right to self-determination.
In October 2018, a federal judge in Texas ruled the ICWA "unconstitutional," claiming it is a "raced-based statute that goes against the grain of the Equal Protection Clause in the U.S. Constitution." But when repeated studies have proved that children of whatever race fare better when brought up in their communities than in welfare systems or foster homes, it's hard to understand the Texas opinion. It's not about race; it's about extended family. Shouldn't the future of a child come before the desires of adoptive parents, no matter how well-meaning?
That wrench in the works was a setback, but not a defeat. After hearing arguments back in March, the Fifth Circuit ultimately concluded the spirit of the ICWA was aimed at the future not just of the tribes, but specifically the children born into them. Tribes have made great strides in recapturing much of their heritage - like their languages - that the federal government worked hard to erase. At the time, the conventional wisdom insisted having children meld with the predominant norms was for the best. Now, everyone knows better - or at least, everyone should.
The Fifth Circuit's decision should put to rest any further battles to wrest Native children from their birthrights. The angst of adoptive parents outside the Native periphery is understandable, but the ICWA was in place long before this particular case came to bear. It's incumbent upon all Americans to respect the melting pot this country has become - but that also means we must respect the dynamics that existed here earlier.
Those who are able to maintain close family ties - even when the kinship seems somewhat distant - know this is the nexus of human existence. The ICWA makes that happen for Natives, as well it should.