Indian Child Welfare Act Protects the Rights We Always Had

As a child, I was at the heart of two Indian Child Welfare Act (ICWA) cases in two separate states, and I am the why behind the law. Every Indian child of all generations before, and every generation to come, is the why behind ICWA.

I am a seventh generation tribal citizen of the Cherokee Nation. Of all seven generations in my family only one was raised by their parent: my grandfather. Every other generation ended up in what today we call foster or kinship placement.

I am the first generation of my family born after the adoption of the federal Indian Child Welfare Act. Literally, every day of my life has been under the era and impacted by this federal law. I was born in 1978, the year it was enacted. I am also an early ICWA Indian child out of a case that went up on an appeal to the Supreme Court of Oklahoma in an unpublished opinion.

My first case, in Oklahoma, closed on paper when I was approximately 8 years old. I lived in foster care in a non-relative third-party placement with a wonderful family, and was ultimately placed back with a birth parent in what became an unsuccessful placement. Six years later, a second ICWA case in Nebraska placed me in a kinship foster care placement with my grandparents.

I understood what it meant to be an “Indian child” at the age of 5 when I stood in the Tulsa juvenile court with the attorney appointed to represent me. I knew at a very young age I would be an attorney for Indian children. I am an adult who has lived more ICWA life – personally and professionally – than most people in the United States.

I know what it is like to love a family who is non-Indian, the only family I knew and remembered from a tender age, but to have to leave them as a child. I understand what it means to be returned to my parent, family and tribe. I know what it is like when placement with a birth parent fails. I understand childhood trauma and abuse, and what it means to carry the impact to this day. I understand what it means, even when a birth parent failed, to grow up part of my Cherokee family and Cherokee tribe.

I understand the why of ICWA in a way that no large group or private agencies or private professionals may fully understand. I understand the why of ICWA in a way a federal district court judge in Texas clearly does not understand. I understand ICWA in a way every citizen of the United States of America should understand it. ICWA was never enacted to “give” something to Indian children, families or tribes. It was adopted in recognition and protection of what we already had: our tribal sovereignty, and our rights as citizen members.

Our children, in all the generations before mine, even within my own family, faced removal. Our tribal children of prior generations were taken. Perhaps not always with ill intent, but plain and simple, Indian children were taken and our rights within our Nations were taken from us.

Our rights as Indian children, as minor citizen members of our tribes, were violated. Our right to ourselves, our identity. Our right to our family. Our right to our community, to our lands. Our right to our cultural and social beliefs. Our right to our language, our means of learning. Those are the rights of Indian children.

ICWA did not give us these rights, but protects these rights. ICWA does not give our tribes the right to say and speak for our care and placement, but recognizes that is a collective right our tribes have always held for us as tribal children. ICWA was adopted because of the government-to-government relationship between the United State of America and Indian tribes, and ICWA establishes a framework to secure what has always existed between tribal citizen members and our tribe. It preserves the mutual link of our right to be and exist within ourselves as tribal people.

Today, I am a wife and mother of Native biological and adopted foster children, some who were ICWA Indian children. I am an attorney who has focused on the rights of Indian children. I’ve worked for and with numerous tribes as an attorney and judge. I took a lead in drafting the 2018 Oklahoma ICWA Bench Guide.

I am beyond disappointed with the decision in Brackeen v. Zinke in the U.S. District Court for the Northern District of Texas seeking to strike down the Indian Child Welfare Act.

Personally, I have nothing but appreciation for any foster or adoptive family who cares for and loves our Indian children. I will never say a negative word against genuine intent. I also will say, without a doubt, that there are private groups, agencies and individuals utilizing a strategic approach around the United States to target the end of ICWA.

In targeting ICWA, challengers are aiming for the very heart of tribal sovereignty and the future existence of our tribes. I professionally and personally disagree with the Brackeen v. Zinke ruling, and find the judicial opinion reflective of the systematic attempts throughout history to remove our children and destroy the sovereignty of our tribes.

It was Chief John Ross (Cherokee) who once wrote:

“We are overwhelmed! Our hearts are sickened, our utterance is paralyzed, when we reflect on the condition in which we are placed, by the audacious practices of unprincipled men, who have managed their stratagems with so much dexterity as to impose on the Government of the United States, in the face of our earnest, solemn and reiterated protestations.”

So too are many hearts sickened after the Brackeen v. Zinke ruling, and like those before us we must never be paralyzed in a place of inaction for long. This is my way of action, my way of defending today what those before me spent lifetimes defending – ourselves as children of tribes.

I personally call on our tribal families, communities and tribes, on any individual or government who understands the purpose of ICWA, to step forward in disagreement with the ruling in this case. Help give voice in support of our Indian children, families and tribes. Please join us in calling on the branches of the United States government to continue to recognize the importance of ICWA in protecting the rights we as Indian children have always held as minor citizen members of our tribes.

Angel R. Smith
(Cherokee) is an attorney based in Oklahoma.

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