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The Young Falcons perform at the 21st Century Community Learning Center on the Wind River Reservation in Arapahoe, Wyoming on February 28, 2017. Joe Amon/Denver Post via Getty Images

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In June 2016, a 10-month-old Navajo and Cherokee boy was placed in the home of a white evangelical couple in Fort Worth, Texas.

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The baby was taken from her Navajo mother, who left the reservation and lived in Texas, because of her drug use. The couple – Jennifer and Chad Brackeen, an anesthesiologist and former civil engineer – were “concerned about their physical well-being”, The New York Times reported, and told the newspaper that raising a child is a way to “correct their blessings “. “

The following year, the Brackeens temporarily put their plan to adopt the boy on hold when, under the provisions of Indian Child Welfare Act, the tribe discovered that Navajo, an indigenous family unrelated to the child, welcomed him. So the Brackeens filed. a federal trial. “He was already removed from his first home, and now it will happen again? And the only clue is that we don’t have the right skin color? How do we explain this to our own children? We haven’t done anything but sign up to do good things,” Jennifer Brackeen told The Times.

Since the complaint was filed, plans to send the boy to another tribe have failed and the Brackeens have been allowed to officially adopt him. Last year, the Brackeens fought for custody of the boy’s sister, whose extended Navajo family wanted to take him in. plot he revealed to The Times. He told the judge he was worried about the little girl, ‘not a baby living in a room with an aunt but maybe a teenager in little locked houses’.

“I don’t know what it’s going to be like,” he continued, “if he needs space, if he needs privacy. I’m a little worried about the financial constraints.” can take care of this child, in case of emergency happens.”

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This cultural difference – the power of a family is determined by its wealth, and these concerns should be more important than the child’s connection to their family and heritage – is why the Indian Child Welfare Act of 1978 deals with the breakdown of families nationwide and mandates, as far as possible, that families nationwide.

Sarah Kastelic, executive director of the National Indian Child Welfare Association, said ICWA stresses the importance of family and tribal ties that have long been overlooked, and that traditional ways – such as extended families living under the same roof – are often used to show. inadequate child protection procedures. “Apart from the fence and the pool and all that, most of the time kids want to be with their families,” he said.

With their lawsuit, in which they participated in the State of Texas, the Brackeens have become the public face of the problem that can break the ICWA. The couple – and the Goldwater Institute, a conservative think tank that backed the lawsuit – won in 2018 when a district court declared ICWA unconstitutional. Last year, the three-judge Fifth Division executive committee made the decision. And, last month, the case was taken up by the 17 judges of the Fifth Circuit in an “en banc” hearing; The national attorney said it appears that whatever the decision, the decision will be appealed to the Supreme Court.

If repealed, the repeal of the ICWA could change a law for more than 40 years. And the legal issue has wider implications than just the welfare of children – it goes to the heart of this country’s constitution. The 573 species recognized by the federal government could be subject to legal challenges in many respects if the ICWA law is found to be unconstitutional.

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“The heart of their argument is that it’s unfair to the people and there should be a blind approach,” said Chuck Hoskin Jr., CEO of the Cherokee Nation. “What is missing is the foundation of the federal laws of India in this country, that the tribes govern, not as a race but as a special political name. It is an important principle that the ‘is ICWA, but most of the laws are related to housing, health, education and employment.For that to be destroyed by a successful attack on ICWA – it will have a general effect on all of those things.

Kastelic said the ICWA has long been the subject of legal action from two groups – those whose main goal is to undermine the constitution and those who are into adopting people who are not interested in the constitution. length of the process that must be done to adopt a child.

“We’ve seen the rise of think tanks – the Goldwater Institute, the Heritage Foundation, Cato – that have a wide range of issues regarding states’ rights and the weakening or dismantling of constitutional authority under of their program,” Kastelic said. “Then there is a religious issue, many Christian organizations who want to have access to the Nation’s children still have the idea of ​​’saving India’ – because of the high level of poverty or drug use or mental health issues, they still have to take it. our kids. They feel entitled to it.”

The forced expulsion of Native Americans from their homelands by the federal government in the 1800s resulted in the deaths of thousands of Americans, especially children and the elderly. In 1879, the federal government launched a special Nation children’s initiative, establishing Indian schools, which encouraged Nation children to lose their language and culture and be educated in the manner of white Americans. Many boarding schools were destroyed – 180 children’s graves lie on the grounds of one of the most famous schools of this period, the Carlisle Indian Industrial School.

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When boarding schools began to die in the 1950s and 1960s, a new effort took over. From 1958 to 1967, the federal government ran a program called the Indian Adoption Project, with the goal of white Americans adopting Native children. A 1966 Bureau of Indian Affairs press release described it as follows: “One little, two little, three little Indians – and 206 others – brighten the homes and lives of 172 American families, many of them non-Indians, who destroyed India, like themselves.

A teacher stands in front of Native American students in class at Carlisle Indian School, circa 1903. Frances Benjamin Johnston/Library of Congress/Corbis/VCG via Getty Images

This is the situation where Bert Hirsch, an attorney for the Association on American Indian Affairs, first came to Devils Lake, North Dakota, in 1967 to help an Indian grandmother who had lost her custody of her 6-year-old grandson. One of Spirit Lake’s current residents, this grandmother has not been charged with abuse or neglect, Hirsch said. “The only accusation is that he is too old – at 62,” he said.

Hirsch and the Spirit Lake Tribe successfully battled this problem, but it made them wonder: how many other families have faced something like this? Hirsch led an effort to collect data, first from North Dakota’s Child Care Branch and then from all 50 states, trying to understand the scope of the problem.

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Before that, every type of battle they fought and lost in the child welfare system was considered unique to each of them. . But Hirsch’s number is a wake-up call, not just in the race, but in national and international news: Data showed that 25-35% of the Nation’s children nationwide were removed from their homes, and 85 to 95 percent are children. these children ended up in homes or institutions of non-citizens.

“As we’ve pointed out in Congress over the years, it’s in a very different way from what happens in any other democracy,” Hirsch said.

Hirsch worked as a lawyer for these types of cases for forty years, and during that time “I’ve seen a lot of things that make my stomach turn, it’s just sick,” he said. In the days before ICWA, a law that Hirsch helped draft and pass, judges “had no qualms about taking children from their families and placing them in foster care, because they didn’t like the Indians and they don’t like their way of life Apparently they got kicked out because of neglect, but the truth is about poverty,” Hirsch said. “If you’re poor and you’re a Indian, you will lose your child.

Although Native Americans are still exposed to child care, ICWA has halted the wave of removals that has severed children’s ties to their ancestry in this regard.

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