Brackeen v. Haaland: Challenging the Indian Child Welfare Act

The case of Brackeen v. Haaland is currently facing the U.S. Supreme Court. The case calls into question the constitutionality of the Indian Child Welfare Act (ICWA) of 1978. The two major questions in the case are: (1) Is the ICWA unconstitutional on the basis of racial discrimination because of its favoring of Native families in the adoption of Native children? (2) Is the ICWA an overreach of Congress’ powers because it impedes the right of states to set the standards for placement of children in their child welfare systems?1

To understand this case, it is imperative to first understand what the ICWA is and how it came to be enacted. That is what we will focus on in this first of a series of blog posts.

What Is the ICWA? Why Does It Exist?

The practice of removing Native children from their tribes started as far back as the birth of the United States (and some would argue before that). The first incidence of Indian child removal occurred during the Revolutionary War as a way to conquer Native nations.2 It was generally believed that Native people needed to be “civilized” and assimilated (or conformed and adapted) to the “American” way of life. To achieve this, the U.S. government set up more than 350 boarding schools across the country, which were designed to systematically strip tribal culture from the Native children who were forced to attend them.3 The schools pushed Christianity, required the use of English, and restricted Native children from speaking their language, wearing cultural dress, using cultural practices, or even using their Indian birth names.4 The first of these boarding schools, the Carlisle School, was founded in 1872 by U.S. Army Captain Richard Henry Pratt. Pratt’s motto for assimilation was the now well-known phrase: “Kill the Indian in him, and save the man.”5 All Native boarding schools to follow would adopt Pratt’s model.6

When the Great Depression hit, there were fewer resources to go around, so the government began to close the boarding schools and created the Indian Adoption Project in their place. In this new program, which ran until the 1950s, Native children were forcibly removed from their families and placed up for adoption to white families who would assimilate them into “American” culture. The removal of children was justified by a loose definition of neglect, which was often based on the interpretation of social workers who were untrained in Native culture and who used an Anglo-Saxon lens for assessing family structure. In Native communities, for example, it was not uncommon for multiple extended families to live in the same house; it was very common to have a nontraditional family structure. The Indian Adoption Project used this difference in family structure to force families into giving their children up for adoption.7 By 1974, research found that between 25 percent and 35 percent of all Native children in the United States were in foster, adoptive, or institutional homes away from their tribes.8 These family separations had a devastating impact on Native culture and communities as a whole.

In the 1960s and 1970s, social movements began to bring light to the issue of Native separation. Eventually, Congress decided to address the issue. After an investigation, Congress reported that “an alarmingly high percentage of families are broken up by the removal (often unwarranted) of their children by nontribal public and private agencies and an alarmingly high percentage of such children are placed in non-Indian institutions.”9 The report also found that state governments “often failed to recognize the essential tribal relations of Indian people.”10

In response, Congress passed the ICWA in 1978, declaring “that it is the policy of this Nation to protect the best interests of Indian children and to promote the stability and security of Indian tribes and families by the establishment of minimum Federal standards for the removal of Indian children from their families.”11

The ICWA establishes guidelines for how states should handle issues regarding Native children in the child welfare system, including cases of child abuse and neglect, foster and adoption cases, removal, and out-of-home placement.12 The law gives Native communities a seat at the decision-making table when placing Native children in homes. And not unlike the traditional child welfare system, it prioritizes keeping Native children with members of their tribe whenever possible. The goal of the law is to keep families together, to protect the rights of Native people to govern themselves, and to support their cultural independence following decades of forced separation and assimilation attempts by the U.S. government.

Although the attempts to assimilate and erase Native culture in the United States ultimately failed (proven by the fact that there are more than 500 sovereign Native nations recognized in the country today), it does not mean the generations of forced removal have not had a lasting impact on these communities.13 The next part of this series will discuss the complex issue of the ICWA in modern times and the court case that questions its constitutionality.

Discussion Questions

  • What, if anything, did you learn from this post that you had not known about Native history previously?
  • What, if anything, surprised you in what you read? What about it moved you?
  • How do you believe Congress should have handled the issue of Native separation?
  • Do you think the creation of the ICWA was the right decision? Was it enough? Was it the best way address to the problem? Why or why not?
  • Should the status of a child as Native American impact who can adopt or not adopt him/her? Why or why not?
  • How does this controversy connect to other issues you have heard in the news? In history?
  • Do you think the ICWA should remain in place? Why or why not?

Other Resources

See the full detailed report from Congress on the ICWA.

For an in-depth investigation of this case from an indigenous perspective, listen to the second season of the podcast This Land, hosted by Rebecca Nagle.

As always, we encourage you to join the discussion with your comments or questions below!

 

Sources

Featured Image Credit:Vision Maker Media
[1] SCOTUSBlog: https://www.scotusblog.com/case-files/cases/brackeen-v-haaland/
[2] Huffington Post: https://www.huffpost.com/entry/indian-child-welfare-act-adoption_n_5dcb1fe8e4b098093b026b83
[3] George Mason University Social History Project: http://historymatters.gmu.edu/d/4929
[4] Huffington Post: https://www.huffpost.com/entry/indian-child-welfare-act-adoption_n_5dcb1fe8e4b098093b026b83
[5] Dickinson.edu: https://carlisleindian.dickinson.edu/teach/kill-indian-him-and-save-man-r-h-pratt-education-Native-americans
[6] Digital History: https://www.digitalhistory.uh.edu/disp_textbook.cfm?smtid=2&psid=3505
[7] U.S. House of Representatives, 1978 Report on Establishing Standards for the Placement of Indian Children in Foster or Adoptive Homes to Prevent the Breakup of Indian Families and for Other Purposes: https://www.narf.org/nill/documents/icwa/federal/lh/hr1386.pdf
[8] Ibid.
[9] Ibid.
[10] Ibid.
[11] Cornell Law School Legal Information Institute: https://www.law.cornell.edu/uscode/text/25/1902
[12] ChildWelfare.gov: https://www.childwelfare.gov/topics/systemwide/diverse-populations/americanindian/icwa/
[13] Native Times: https://www.Nativetimes.com/archives/46-life/commentary/14059-truth-and-reconciliationkill-the-indian-and-save-the-man

 

Should Facebook Be Regulated?

Facebook RegulationsLast week, whistleblower Frances Haugen, a former project manager for Facebook’s Civic Integrity team, testified before Congress and criticized the social media company as a dangerous, unchecked force that was “buying its profits with our safety.”1 Haugen faulted the senior leadership at Facebook for identifying safety risks yet refusing to make the necessary changes to address them. “I’m here today because I believe Facebook’s products harm children, stoke division, and weaken our democracy,” she told the committee, before providing a detailed account of the inner workings of the company.2

Haugen’s testimony drew on her two years at Facebook, her experience as a data engineer, and thousands of pages of internal documents. She cited Facebook’s algorithm—the programming that chooses which content appears in a user’s news feed—as its biggest offense. Facebook changed its algorithm in 2018 to prioritize content that would be most likely to get reactions and engagements such as views, clicks, likes, and comments.3 This effectively made the news feed promote posts that are hateful, divisive, and polarizing while amplifying their messages and expanding their reach.4 This has created endless cycles where users get sucked into deeper rabbit holes the more they scroll, a process which Haugen says is driven by profit. “Facebook has realized that if they change the algorithm to be safer, people will spend less time on the site, they’ll click on less ads, [and Facebook will] make less money.”5

One key revelation relates to the effects that Facebook and its family of apps have on the physical and mental health of young people. One internal study found that nearly 14 percent of teen girls on Instagram said their suicidal thoughts became “more frequent,” while 17 percent said their eating disorders became worse because of the Facebook-owned app.6 Thirty-two percent said that Instagram gave them a negative body image.7 Despite knowing the potential for harm, Facebook kept the studies hidden and allowed its algorithms to continue pushing damaging content.

Controversy is not new to Facebook. Recently, the social media giant has been widely criticized for its data collection policies and for allowing misinformation related to COVID-19, vaccines, and elections to proliferate on its site. Facebook was also used to help organize an insurrection at the Capitol, incite genocide in Myanmar, and distribute Russian disinformation during the 2016 election.8

Although Democrats and Republicans are divided on many national issues, they are largely united in their belief that something should be done to rein in Facebook. There is agreement that there needs to be more transparency, accountability, reform, and congressional oversight to bring about change. “If you closed your eyes, you wouldn’t know if it was a Republican or a Democrat,” said Senator Richard Blumenthal, D-Conn., after the hearing. “Every part of the country has the harms that are inflicted by Facebook and Instagram.”

Discussion Questions

  1. What are your experiences with Facebook, WhatsApp, Instagram, and other social media apps? Have they been mostly positive? Mostly negative? How frequently do you use them and for what purposes?
  2. The day before Haugen’s testimony, Facebook and its apps, including Messenger, Instagram, and WhatsApp, were offline for nearly five hours. How did this blackout affect you?
  3. Have you seen content that could be considered hateful, misleading, or polarizing on your social media feed?
  4. Why might someone want the federal government to regulate Facebook’s use of algorithms?
  5. Why might someone not want the federal government to regulate Facebook’s use of algorithms?
  6. What do you think should be done regarding this issue?

As always, we encourage you to join the discussion with your comments or questions below!

 

Sources

Featured Image Credit: Elizabeth Renstrom for TIME
[1] Time: https://time.com/6104157/facebook-testimony-teens-algorithm/
[2] New York Times: https://www.nytimes.com/2021/10/05/technology/facebook-whistle-blower-hearing.html
[3] 60 Minutes: https://www.youtube.com/watch?v=_Lx5VmAdZSI
[4] Ibid.
[5] Ibid.
[6] NPR: https://www.npr.org/2021/10/05/1043377310/facebook-whistleblower-frances-haugen-congress
[7] Ibid.
[8] New York Times: https://www.nytimes.com/2018/10/15/technology/myanmar-facebook-genocide.html

 

Supreme Court Preview: The 2021-2022 Term

The Supreme Court begins its new term on the first Monday in October, a tradition that dates back to 1917.1 This year, that meant yesterday, Monday, October 4. In the term ahead, the Court is set to take up many key constitutional and legal issues. To explore those issues, Close Up is offering a free webinar for students and teachers with University of Illinois Chicago law professor Steven Schwinn on October 13.

LEARN MORE AND REGISTER: Close Up Conversation with Steven Schwinn

Three of the biggest issues that the Supreme Court will take up this year are abortion and reproductive rights, gun control and Second Amendment rights, and separation of church and state.

Dobbs v. Jackson Women’s Health Organization stems from a challenge to a 2018 Mississippi law that bans all abortions after 15 weeks of pregnancy. If the Mississippi law is upheld, it will allow other states to pass similar laws. While this would not completely overturn the landmark Roe v. Wade (1973) decision, it would reduce the window in which women could seek to terminate a pregnancy from 24 weeks to 15 weeks.2 Oral arguments for this case take place on December 1.

New York State Rifle & Pistol Association Inc. v. Bruen stems from a challenge to restrictions on who can obtain a permit to carry concealed weapons. The handgun permit in question requires that applicants show “proper cause” for needing a concealed handgun and that applicants be “of good moral character.” Gun rights activists and other critics argue that the restrictions are too vague and a violation of constitutional rights.3 This case will be heard on November 3.

In Carson v. Makin, the Supreme Court is again evaluating the relationship between church and state. Maine passed a law barring the use of public funds, such as student financial aid, to pay tuition at religious schools. If the Maine law is overturned, families would be able to use government financial aid money at “sectarian” religious schools.4 This case is set to be heard on December 8.

In addition to these issues, the Supreme Court is taking up cases about:

  • Free speech on college campuses5
  • The Patient Protection and Affordable Care Act (often called Obamacare) and disability protections6
  • State secrets and the authority of law enforcement to withhold information from the public and defendants7
  • The death penalty8

All of these cases come at a time when Gallup polling shows that approval of the job the Supreme Court is doing is at its lowest since 2000.9 Given these cases and the nature of political polarization, this could be one of the most impactful—and controversial—Court terms of the past several decades.

As always, we encourage you to join the discussion with your comments or questions below!

 

Sources

Featured Image Credit: Jonathan Ernst/Reuters
[1] National Constitution Center: https://constitutioncenter.org/blog/why-the-supreme-court-starts-on-the-first-monday-in-october
[2] NPR: https://www.npr.org/2021/10/03/1042883035/a-preview-of-the-supreme-courts-new-highly-anticipated-term
[3] Fox News: https://www.foxnews.com/opinion/supreme-court-term-abortion-guns-free-speech-jonathan-turley
[4] CNBC: https://www.cnbc.com/2021/10/01/supreme-court-new-term-major-cases.html
[5] Fox News: https://www.foxnews.com/opinion/supreme-court-term-abortion-guns-free-speech-jonathan-turley 6
[6] CNBC: https://www.cnbc.com/2021/10/01/supreme-court-new-term-major-cases.html
[7] Time: https://time.com/6102509/supreme-court-cases-to-watch-2021/
[8] Ibid.
[9] Gallup: https://news.gallup.com/poll/354908/approval-supreme-court-down-new-low.aspx