In 1974, the year Congress began a series of hearings on Indian child welfare, at least one in four Native children nationwide had been removed from their families and were living in adoptive homes, boarding schools, or foster care.
“It was a very deliberate process of essentially cutting the umbilical cord between those young people and their cultures and their tribes,” said Professor N. Bruce Duthu during a conversation moderated by the Rudman Center’s Laura Knoy at the UNH Franklin Pierce School of Law. “It was part of a multi-fold strategy of de-Indianizing the U.S," Duthu said. "One way to do that was to essentially make it impossible for another generation to propagate, to continue exercising their culture.”
(Visit here for the full video of the Duthu event; quotes in this article have been edited slightly for clarity.
After more than four years of hearings, deliberation, and debate, Congress passed the Indian Child Welfare Act (ICWA) of 1978. The federal statute gives preference to Native American families in foster care and adoption proceedings involving Native children. In recent years, according to the National Indian Child Welfare Association, American Indian children are still overrepresented in state foster care -- at a rate 2.66 times greater than their proportion in the general population.
ICWA has faced several legal challenges, most recently in the Haaland v. Brackeen case. But in a 7 - 2 ruling in June 2023, the U.S. Supreme Court rejected a number of constitutional challenges to the Indian Child Welfare Act.
“I was surprised at the vote,” Duthu said. “I was surprised at the strong endorsement and clarification by those seven justices to say, ‘this is what the Indian Commerce Clause means.’” The justices confirmed that Congress has the power to regulate Indian child placement preferences under the Indian Commerce Clause.
Haaland v. Brackeen involved a tangle of legal issues, including issues of federal power and the constitutional equal protection guarantee. A group that included the Brackeen family, which had been prevented from adopting a Native child, argued that the ICWA classification of “Indian child” is race-based and violates the Fifth Amendment. Deb Haaland, Secretary of the United States Department of the Interior, argued that the ICWA’s classification of “Indian child” is constitutional in part because it is tied to Congress’s “unique obligation” to Indian tribes.
Leaders of several tribal nations in a joint statement called the Haaland v. Brackeen decision “a broad affirmation of the rule of law, and of the basic constitutional principles surrounding relationships between Congress and tribal nations.”
The decision did leave some possible openings for future lawsuits, Duthu said. The issue of race was unresolved because the Court found the plaintiffs did not have standing to challenge ICWA on equal protection grounds, he said.
At issue could be the definition of an Indian child, for instance, which for most tribes involves having a certain blood quantum or being a lineal descendent of an unquestioned progenitor, he said. “Well, that sounds to the average viewer or reader like a racialized category,” he said.
Another vulnerability could be the issue of placement, which prioritizes keeping a child who is up for adoption within the Native community, even if means placing the child within a different tribe. “Well, why? Why would you take that Lakota family over a White family who may be living adjacent to the (Navajo) reservation where this kid is from? There are reasons why Congress wrote the law that way, but that’s a vulnerability. I suspect that if it is challenged the whole law won’t fall, but there could be some tinkering that Congress would need to do.”
Duthu, who is himself enrolled as a tribal member of the United Houma Nation of Louisiana, also addressed the various terms used to describe Native community members. Native American, he said, is not popular among Native communities and is used mostly in academia.
“Despite its historical error, Indian and Indian American continue to be by far the terms preferred in native communities,” he said. “So, if you go to a tribal community – if you go to my tribal community – you will find no one referring to themselves as a Native American,” he said. “You’ll still find Indian, American Indian or Native Peoples. Or they are typically identified by their tribes.”
A new approach to teaching law and other subjects
Basic federal Indian law is taught at many law schools but not all, Duthu said.
“I would love to see every law school teach at least some introductory course in federal Indian law,” Duthu said. “Better to infuse it within the curriculum so that it’s not marginalized. There are sovereign nations within our constitutional democracy. We ought to be talking about that.”
[This spring, Judge Arthur Gajarsa, jurist in residence at the UNH Franklin Pierce School of Law, will teach a course in Federal Indian Law.]
Duthu experienced this gap in legal knowledge on a personal level when adopting his niece, who is originally from the Chippewa Indians of Michigan and had become a ward of the state. After clearing the adoption with the Michigan tribe under ICWA, he presented the case in a court in Louisiana, where he was living at the time. The judge was completely unfamiliar with ICWA. “I was just stunned. I didn’t know what to say,” he said. “That was my first experience that the ICWA and the issues of concern to Native peoples may not be issues of concern to the broader society -- even for those charged with administering the law. It was a wakeup call.”
The experiences of Native peoples should be integrated into more areas of learning, Duthu said. “You cannot teach American history without including Native peoples in it,” he said. “If you’re teaching environmentalism and you’re not teaching about traditional environmental knowledge from the indigenous viewpoint, then you’re missing out on a big chunk of knowledge.”
Native Roots of Restorative Justice
The concept of restorative justice, with its emphasis on rehabilitation, traces some of its origins to the work of indigenous communities in the U.S., New Zealand, and other parts of the world, Duthu said. “As an alternative form of dispute resolution or even adjudicating criminal justice as an alternative to incarceration, it’s a way to repair relationships, bring someone back to the good path. It may not work for all instances.”
The indigenous approach to dealing with those who break community norms has a deep history, he said. “We tap into a rich body of knowledge that goes back a long way towards understanding that there are philosophical traditions that can be built upon that then lead to structures and processes that are alternatives to incarceration. Some of these approaches might actually work better, because all of these people are fathers, brothers, sisters, mothers. Before they were labeled as criminals, they were relatives, and we should treat them as relatives.”