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Supreme Court to hear challenge to Indian Child Welfare Act — and a lot is at stake

Savannah Maher Nov 7, 2022
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Clarisse Harris, a foster parent to Native children, was raised before the passage of the Indian Child Welfare Act. Now, the ICWA — which helped facilitate those placements — is in legal peril.  Photo illustration: Dylan Miettinen/Marketplace. Photos: Getty Images, Clarisse Harris

Supreme Court to hear challenge to Indian Child Welfare Act — and a lot is at stake

Savannah Maher Nov 7, 2022
Heard on:
Clarisse Harris, a foster parent to Native children, was raised before the passage of the Indian Child Welfare Act. Now, the ICWA — which helped facilitate those placements — is in legal peril.  Photo illustration: Dylan Miettinen/Marketplace. Photos: Getty Images, Clarisse Harris
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Clarisse and Pat Harris are in their mid-70s. They live in a white house on a hill in Ethete, Wyoming, with the seven children they’re raising. In the yard, there’s a chicken coop, a sweat lodge and a view of two snow-capped mountain ranges: the Wind River to the west and the Owl Creek to the north. 

Inside, on a school night before Halloween, Clarisse is frying up hamburger meat and potatoes for dinner while the kids carve jack-o’-lanterns at a long table in the family room. 

“OK, did everybody get their pumpkins done? Get those seeds picked up and put in the pan?” she shouts from the kitchen. 

Not quite. The 5-year-old has drawn triangle eyes and a toothy smile on hers, but she’s waiting on carving help from the teenagers, who are huddled around a smartphone watching YouTube videos. Some of the younger boys are outside shooting hoops and riding bikes around the dusty driveway.

Clarisse’s 14-year-old, who has autism, comes into the kitchen with a request. 

“Ghostbuster costume,” he says, but Clarisse has her hands full making dinner. “Mhm,” she says. “Talk to Ty.” 

Ty, who’s 18 and home from a day of community college classes, helps track down the costume online. He’s worried about the other 14-year-old who fell and hurt himself at school.

“How is his arm?” Ty asks Clarisse, who shakes her head. “They think it’s broke. We’ll have to go to Lander tomorrow.” 

Before the night is over, Clarisse will mediate an argument over which pumpkin belongs to which boy, talk all seven kids into having salad with their dinner and give one of her sons a haircut.

This chaos is comfortable and familiar, she said. She’s been a foster parent for 40 years and was brought up in foster care herself. 

“What kind of Indian are you?”

Clarisse is Northern Paiute from the Big Pine Reservation in California. Growing up, she and her five siblings didn’t know that. 

“We knew we were Indians,” she said, because that was how people in town and at church talked about them. “We didn’t know we were members of a tribe.” 

The siblings never lived more than about 60 miles from Big Pine, but their identity never came up in the white homes where they were raised. Clarisse remembers a time when their foster parents took them to visit Bakersfield, California.  

“They had a little corner grocery store, and my brothers were in there. The butcher asked my older brother, ‘Well, what kind of Indian are you?’ And he didn’t know. He said he didn’t know. And my younger brother said, ‘Johnny! You know we’re Apaches!’” 

Clarisse laughs as she told this story — she thinks her brother must have been watching too much “Bonanza.” But what she and her siblings experienced was part of what Congress once called “the most tragic and destructive aspect of American Indian life today”: the systematic removal of Indigenous children to assimilationist boarding schools and non-Native foster and adoptive homes. 

In 1978, the Indian Child Welfare Act sought to address that history of cultural dispossession. The federal law gives tribal nations a voice in custody proceedings involving Native children and prioritizes those children’s families and communities for foster and adoptive placements. 

Clarisse Harris, pictured here as a young child.
Clarisse Harris as a child. (Courtesy Harris)

By the time ICWA passed, Clarisse had long since aged out of foster care and into a government relocation program for Native people, which took her to San Jose, California. City life didn’t suit her, so Clarisse found her way back to Big Pine and reconnected with her biological family. She stopped going to church and started going to ceremony. 

“It was like I just accepted it. It was part of me,” Clarisse said. “It was different, but it wasn’t strange. It made me feel safe and good. And to this day, that’s the way I am.”

And the way she and her husband, Pat — who’s Northern Arapaho — have since raised their three biological daughters and dozens of Native foster children on the Wind River Indian Reservation in Wyoming. But ICWA — the law that helped facilitate those placements — is in peril. 

The broad impact of overturning ICWA

ICWA’s challengers are non-Native couples who say that the law puts them “last in line” to adopt Native children and discriminates unfairly on the basis of race. Elizabeth Hidalgo Reese, a professor at Stanford Law School and a citizen of Nambé Pueblo, called this argument “unmoored” from the history of tribal nations in this country. 

“It puts tribal governments in the position of doing some basic education,” Reese said. “When folks are enrolled in an Indian tribe, we’re not talking about the descendants of a racial group. We’re talking about the people who make up the citizenry of a domestic dependent nation.” 

That distinction has been upheld by more than a century of Supreme Court precedent and serves as the basis for a body of federal law and policy that protects tribes’ authority to govern themselves. 

“It matters a tremendous amount that tribes are seen as nations and not races,” Reese said. 

According to her, it’s unlikely ICWA will come out of this challenge unscathed, and there are a number of ways the court could weaken the law or strike it down. A narrow finding that ICWA unconstitutionally requires state governments to enforce federal law would be less devastating to tribal nations than a full striking down on equal protection grounds. 

“If the ruling is all about how tribes aren’t sovereign anymore, then that’s everything,” said Matthew Fletcher, a professor at the University of Michigan Law School and a citizen of the Grand Traverse Band of Ottawa and Chippewa Indians. 

That kind of broad ruling would cast a shadow on every corner of federal Indian law, Fletcher said — including policies that help tribal nations generate revenue and promote healthy economies. 

“Half of Indian Affairs is rooted in the proposition that tribes don’t have a tax base, so they have to make money through businesses in order to fund their governments and services,” Fletcher said. “All of that is at risk.” 

Take the Indian Gaming Regulatory Act as an example. Since 1988, it has regulated and protected tribes’ right to run certain gaming operations on their land and enter into gaming compacts with the states that surround them. If ICWA is struck down on equal protection grounds, legal challenges to that law could gain traction

“Federal government financing, federal contracting set-asides for Alaska Native corporations and other tribal corporate entities — all of that could go away,” Fletcher said. “It really would put a crimp in a lot of the things that tribes do and depend on in order to develop their economies.”

Brackeen v. Haaland, as the Supreme Court case is titled, poses a threat to tribal sovereignty itself. With the stakes so high and far-reaching, the law itself and the grim history it was designed to rectify could be overshadowed as the court considers this case, Reese said. 

“Part of what’s so brutal is that [ICWA] has done powerful work to make sure that Native people have ties to their identities and that they aren’t deprived of the right to grow up as who they are,” she said. “That will feel, unfortunately, I think, very far away during oral arguments.” 

“That’s who we are” 

Clarisse Harris hasn’t lost sight of ICWA’s original intent. Without it, she said, Native children could find themselves far from home without meaningful connections to their Indigenous families, communities and cultures. 

Clarisse introduces Ty to his new baby brother.
Clarisse Harris introduces her son Ty to his new baby brother in a photo taken more than a decade ago. (Courtesy Harris)

In some ways, Clarisse’s home in Ethete reminds her of those she grew up in: always chock full of people and noisy with kids’ laughter or bickering or play. One difference is that her children don’t wonder about their Northern Arapaho identity.

At home, they’re surrounded by Native family. They go to school on the reservation. Free time is spent visiting the tribe’s buffalo herd or making popcorn balls to sell at the Wind River farmers market or preparing for ceremony. 

“You should see when everybody’s here, like when we have sweat,” Clarisse says. 

She asks her 12-year-old son, who’s hanging around waiting for cookies to come out of the oven, “What do we do when we go into sweat?” 

“We pray,” he responds. “Yes we do,” Clarisse says. “And who do we pray for?” 

He names siblings, aunts, uncles and cousins who welcomed him into this family when he was an infant. Clarisse reminds him to include a few of his siblings’ biological parents who are in treatment or incarcerated. Another of her sons is learning from Pat to sing Arapaho prayer songs in sweat. 

“My little boy, he says, ‘Mom, I’m gonna go to sweat tonight and I’m gonna sing.’ And I say, ‘OK.’ And he does. There’s his little drum right there,” she says, pointing to the hand drum hanging on the wall next to paper plate crafts and Little League team photos. “Because that’s who we are.” 

Clarisse had to fight for that sense of belonging. For the kids she’s raising, it’s been there all along.

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