Defending the Rights of Native American Children

Thursday, November 15th, 2018 @ 11:12AM

Decisions made early in life often have profound consequences for the future. For too many children, decisions affecting their lives are made by policymakers and politicians who may or may not have their best interests in mind. The decision by U.S. District Judge Reed O’Connor—a George W. Bush appointee—that struck down the Indian Child Welfare Act could be detrimental to hundreds if not thousands of Native American and Alaskan Native children. The law—P.L. 95-608—was passed in 1978 and signed by President Jimmy Carter. Known as ICWA, the long title of the legislation attests to its need: An Act to establish standards for the placement of Indian children in foster or adoptive homes, to prevent the break-up of Indian families, and for other purposes.

As we celebrate November as Native American Heritage Month, we must remember that one reason ICWA was enacted was to prevent indigenous children being taken from their families and placed in homes not of their culture. Prior to the passage of ICWA, it was estimated that as many as 25 to 35 percent of all Indian children were being forcibly removed from their homes. Of these, approximately 85 percent were placed in homes of other cultures and religions, a rate much higher than other children. Adults who had been through this process testified that being separated from one’s culture and religion left them emotionally damaged.

Forty years after its passage, O’Connor ruled that ICWA violated the Constitution’s Fifth Amendment by giving Native American families preferential treatment based on race. He also found the law violated the 10th Amendment’s federalism guarantees by commandeering states to modify their laws. This is not the first time O’Connor has ruled in favor of states’ rights. In 2015, he ruled that Texas was not obligated to provide Family Medical Leave Act (FMLA) protections to same-sex couples. And now, the state of Maryland has filed a suit anticipating an O’Connor ruling in favor of states that want the Affordable Care Act (ACA) declared unconstitutional. O’Connor’s statements during the trial have many fearful that the ACA could be struck down.

What worries me is the probability we will be going down this road more often as the Trump Administration and the complicit United States Senate rush to pack courts with imminently unqualified and inexperienced judges whose primary qualification is they share conservatives’ ideological leanings. The idea is to pack courts with youthful judges who will be there for decades, thus profoundly reshaping the judiciary in ways that will favor business over labor by limiting collective bargaining, and by reducing citizens’ rights to pursue class action suits. They will favor private education over public schools and weaken efforts to force the government to address global warming, as well as a host of other issues.

With the confirmation of Brett Kavanaugh to the Supreme Court, that once prestigious judicial branch can no longer be counted on to balance the scales of justice between progressive and conservative ideas about the social role of government.

If you had been thinking that the American society was moving towards being a more egalitarian body, that racism, anti-Semitism, and sexism were on the wane, that nationalism and hate were becoming things of the past, that legislation like the Voting Rights Act and ICWA had lost their relevance, well think again. It has taken Donald Trump to remind us that there is still a significant number of people in this society who gladly acknowledge their privilege and have no intention of relinquishing it without a fight now that they have the consummate bigot in the White House and an obsequious band of Republicans doing all they can to win his favor.

This fight to defend ICWA is just one of many that progressives will have to fight to create a more just and equitable society. As Nancy MacLean asserts, preserving and strengthening democracy is not just about winning in 2018 and 2020, it’s a long and tedious struggle to get all Americans to engage in politics and government. We the people means all of us. If we do not want government of the few, by the few, and for the few, we must convince more citizens to vote and become civically engaged. More 18 to 29-year-olds voted in 2018, according to a preliminary estimate by The Center for Information and Research on Civic Learning and Engagement at Tufts University, a rise of 10 percent from the previous midterm elections in 2014. That resulted in 31 percent voting, still far below what they will need to have their voices fully heard. We have more work to do.

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