When Kimora Toledo was a little girl, she and her mother Malisha would make the hour-long drive from Albuquerque, New Mexico, to Jemez Pueblo at least once a month. Malisha, who is from Jemez and Tesuque Pueblos, had moved her family to Albuquerque for a better job, but her father was a Jemez medicine man and it was important to her that Kimora be immersed in that heritage. On one of those visits to Jemez, Malisha remembers dancing alongside Kimora – who’s Jemez, Tesuque, Diné and Black – during the feast day celebrations. She hoped it would be the first of many times they’d dance together.
But Malisha battled a criminal record and her ex, Kimora’s father, managed to gain custody over Kimora and her younger brother. The two children would spend several years living at their dad’s house in Albuquerque, without those monthly visits to the pueblo.
When Kimora was 11, the New Mexico children, youth and families department removed her from her father’s home over abuse she was experiencing. Kimora would spend the next three years in and out of group homes and rehabilitation centers, eventually landing in foster care when she asked not to be returned to her father’s.
Kimora had never felt more disconnected from her culture and traditional ways of healing. Her foster mother, a Mexican woman, suggested Kimora take Spanish as an elective in school. But Kimora desperately missed her mother and grandfather, and the language they’d spoken during her childhood. “I missed a lot of my childhood and our traditions,” she said, just weeks before her seventeenth birthday.
Kimora and her mother didn’t know it then, but, as a Native American child, Kimora should have never ended up in foster care the way that she did.
This month, the US supreme court will consider the future of families like Kimora and Malisha’s. On 9 November, the court will hear oral arguments in Haaland v Brackeen, a case challenging the constitutionality of the Indian Child Welfare Act. Designed to keep Native American children in their communities during custody, foster care and adoption proceedings, ICWA was passed in 1978 in response to the mass separations of families that had been customary since the 19th century. Many Native American activists are worried for the future of ICWA, given the rightwing composition of the supreme court. Some – like Kimora and Malisha – are also working to enshrine it in local law.
Remedying a policy of destruction
In 1860, the Bureau of Indian Affairs opened the first of what would become more than 350 American Indian boarding schools, with the intention of “civilizing” Native American children – an assimilationist policy regarded by many as “cultural genocide” today. By the 1920s, nearly 83% of school-age Native American children were enrolled in boarding schools, where a government report found they were malnourished, overworked, harshly punished and poorly educated. As boarding school attendance increased into the 1960s and 70s – peaking at 60,000 in 1973 – the US government rolled out another program, called the Indian Adoption Project. It ended up placing 395 Native American children from western states with white families in the midwest and east coast.
By the 1970s, data showed that 25% to 35% of Native children had been removed from their families during the boarding school era, leading to the passage of the Indian Child Welfare Act in 1978. According to the law, states are required to follow protocols when handling certain custody cases involving a Native child, including involving the tribe in the proceedings. Perhaps most notably, ICWA also establishes a placement preference system, requiring child welfare agencies to try to keep Native children within their communities – by placing them, for example, with extended family or with a foster family in their own tribe – to ensure that they do not lose ties to their heritage.
“I call it a remedial statute because it has been the US government’s policy for hundreds of years to destroy the Native American family,” said Angelique EagleWoman (Sisseton Wahpeton Oyate), director of the Native American Law and Sovereignty Institute at the Mitchell Hamline School of Law and one of 30 professors of American Indian law who filed an amicus brief with the supreme court in support of ICWA.
Despite ICWA’s existence, the law has often gone unenforced. That’s in part because there is no federal oversight agency monitoring compliance. Although the Bureau of Indian Affairs released guidelines designed to improve enforcement in 2016, tribal officials say that state welfare agencies regarded them as suggestions that were not legally binding.
As a result of these gaps, in 2016, a 10-month-old Navajo and Cherokee boy was fostered by a white Texas couple, Chad and Jennifer Brackeen, who ultimately adopted him. When the Navajo Nation was alerted to the case and stepped in to place the child with a Navajo family, the Brackeens sued.
The questions the court will consider as it hears Brackeen v Haaland are twofold: whether ICWA discriminates on the basis of race and whether the law supersedes states’ rights to control child custody placements. The Brackeens and their supporters argue that ICWA violates the constitution’s equal protection clause, discriminating against them as a white family, and imposes unlawful requirements on states. The federal government and Native advocates say that Congress may enact laws that apply to states in order to uphold its treaty obligations, and that Native Americans belong to a political class based on their sovereign status, not a racial group.
With this supreme court showing willingness to upend long-held precedent, many advocates are worried for the future of the ICWA. In 2013, three justices currently on the court – John Roberts, Samuel Alito and Clarence Thomas – sided with the majority to rule against a Native American father who had given up custody rights before changing his mind. Since then, the court’s conservative majority has grown to six justices, including Amy Coney Barrett who is herself an adoptive parent. But that majority has also been joined by Neil Gorsuch, who has consistently supported tribal sovereignty – even when that’s meant going against the conservative majority – and many legal scholars are hoping that the court will not overturn ICWA because of how doing so would reshape the legal relationship between the federal government and Indian tribes.
“It is very difficult to conceive of the US supreme court reframing the entire relationship with tribal governments and tribal children,” says EagleWoman. “We are starting to heal our communities, and it would be a major setback to genocidal policies for the US supreme court to strike down any of the provisions in the Indian Child Welfare Act.”
A state-based alternative
Many states, including New Mexico, aren’t waiting to see how the court rules. Instead, they’re enshrining ICWA in state law. To date, ten states have codified ICWA – and eight have added provisions to augment it. Native-led coalitions in other states, like Wyoming, have begun working to do the same.
When organizers in New Mexico began working to pass the state’s Indian Family Protection Act, the majority of the 500 Native children in foster care were in non-Native homes, says Jacqueline Yalch (Isleta Pueblo), director of Isleta Pueblo social services and president of the New Mexico Tribal Indian Child Welfare Consortium. Since New Mexico passed its own law in March, she says, that number has fallen.
After Kimora was placed in foster care at age 14, a social worker reached out to her grandfather and helped him secure custody a year later. After five years of feeling separated from her heritage, Kimora moved back to the Jemez Pueblo and began relearning the Jemez language. Through her grandfather, Kimora was also reunited with her mom, who realized exactly how much Kimora had missed out on – like participating in coming of age ceremonies, learning traditional recipes and dancing at celebrations. “There were so many times we could have danced together,” Malisha said. She’s hoping as the risk of the Covid-19 pandemic lessens, they might be able to dance together again next year.
Malisha and Kimora said that advocating for New Mexico’s Indian Family Protection Act was a healing experience. “Our children are our future,” says Malisha. “We have to do whatever we can to protect them.”
