Native Playwright and Others Fear a New Trail of Tears

With the Indian Child Welfare Act (ICWA) under right-wing attack, Mary Kathryn Nagle sounds the alarm.

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Native children sent to the Carlisle Indian Boarding School in Pennsylvania in 1880. Photo: National Archives and Records Administration.

The news came over the radio as Gary Williams was driving across the Arizona desert in 2015: the Goldwater Institute, a Phoenix-based right-wing think tank, had just launched a lawsuit challenging the Indian Child Welfare Act (ICWA). He was so overcome that he had to pull over. Williams’ mother, a member of the Gila River Indian Community, died when he was an infant. The law being attacked by the Institute was not yet in existence then. Had it been, it would have protected him from a childhood of horror.

Like many other Native children at the time, Williams and his three older siblings were taken from their community. The children were separated and placed in Arizona’s foster-care system and, over the next 15 years, he was sexually and physically abused — once beaten so hard, he is now partially blind in one eye. For most of his childhood, Williams didn’t know he was Native. By the time he learned the truth, most of his biological family was dead. Williams, who now works for the Gila River Gaming Commission, feels he was robbed of his past.

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Enacted by Congress in 1978, the purpose of the ICWA is to keep Native children with Native families and to protect their best interests. It came 99 years too late for 12,000 Native children who, like Williams, were ripped from their parents’ arms and sent off to boarding school. It came 18 years too late for the Native children in the 1960s who were forcibly placed in white, often Mormon homes. It came 10 years too late for Williams.

The ICWA was widely upheld for years by the courts. But now, couching its rhetoric in the language of civil rights, the Goldwater Institute’s attack on the ICWA is a serious one; the organization’s donor roster includes the Mercer family, the DeVos family and Donors Trust, a dark-money funnel for the Koch Brothers. The Institute’s attach is being coordinated with these and other conservative and religious allied organizations.

Indeed, other cases are being filed. One of them pits an affluent Evangelical couple from Fort Worth, TX against 573 tribes. The couple, Chad and Jennifer Brackeen, were fostering a Navajo child, now three, that they decided to adopt. The suit challenges ICWA, which states that priority to adopt a Native child must be given to a Native family. Last fall, a federal judge ruled in the Brackeens’ favor, declaring that the ICWA is unconstitutional — because, in part, it’s based on race. The Brackeens’ adoption of the child became final earlier this year.

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Mary Kathryn Nagle: playwright, attorney and citizen of the Cherokee Nation. Photo: Arena Stage.

Mary Kathryn Nagle, an enrolled citizen of the Cherokee Nation, is a partner in Pipestem Law, a firm that “specializes in representation of tribal governments, tribal enterprises and Native organizations.” This is the same Mary Kathryn Nagle who is the celebrated playwright of Manahatta, Fairly Traceable and Sovereignty — plays that illuminate issues unique to Indian country. Nagle is an ongoing consultant to the National Congress of American Indians and the Tribal Supreme Court Project.

Citing the Fourteenth Amendment, Nagle has been quoted as saying that “Goldwater’s claims that the ICWA constitutes an unconstitutional race-based classification are simply wrong.” She adds, “Goldwater is attempting to use equal protection terms to dismantle a statute that is tied to citizenship in a sovereign tribal nation, not race.” As in international adoptions, which must proceed as government-to-government transactions, the US government is charged, by law, to deal with tribal governments in exactly the same way.

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According to my conversation with attorney Shannon Keller O’Loughlin, executive director of the Association on American Indian Affairs, the US Constitution guarantees that Native tribes retain inherent sovereignty, governed by their own tribal laws. If the ICWA is struck down by the Supreme Court, all federal laws, including those protecting health care, education, environmental protection, repatriation, gaming and self-determination could be vulnerable and ready to fall, one by one, like dominos. All 573 tribes would be redefined as a “minority race.” For O’Loughlin, a citizen of the Choctaw Tribe, that could very well mean “termination of our sovereignty and the end of us.”

Might it be that undermining tribal sovereignty by dismantling federal law, starting with the ICWA, would make it easier to control the indigenous population, further encroach on their land, and overcome their fierce commitment to the environment?

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Nobody wants a three-year-old child to be collateral damage in a historic legal crisis; no one should turn a deaf ear to the Brakeens, who seem earnest in their devotion. According to a June 6 article in the New York Times, when the Brackeens’ biological son was three, they asked God how they could serve a higher purpose. One way was to foster children and eventually adopt one. Unfortunately, the child they’ve fallen in love with is at the center of a firestorm because a Texas court did not use ICWA as it was intended. Now the Brackeens are now fighting to adopt the little boy’s baby sister. If ICWA is to survive, it would seem crucial that Native children be placed only with Native foster parents to avoid further humanitarian landmines.

ICWA must be defended and upheld.

But if the Goldwater Institute has its way, any white family would be entitled to adopt Native children without regard to their heritage. It is indeed ironic that the organization’s namesake, Sen. Barry Goldwater, voted for the ICWA back in 1978.

As I was finishing this article, I happened to be driving near my home in Long Island and turned on NPR as Radio Lab began a segment on ICWA. The story highlighted a similarly heartbreaking case of a white family that fostered a Cherokee toddler for a year and a half from birth, and lost a legal battle to the child’s biological father who provided, by all accounts, a warm, loving home for over a year. When the child turned three, the Supreme Court reversed the decision and awarded her back to the foster couple for adoption.

The segment featured a tearful interview with the adoptive couple and a press conference with the sobbing biological dad. Like Williams back in 2015, I had to pull over to the side of the road and just sit there.