Timothy Sandefur, the vice president for litigation at the Goldwater Institute in Phoenix, Arizona, has been leading the conservative organization's legal fight against the Indian Child Welfare Act. Photo: Gage Skidmore

High Country News: Indian Child Welfare Act under conservative fire

Who can adopt a Native child?

The Indian Child Welfare Act has helped repair the damage of the boarding-school era – but not everyone wants it in place.
By Allison Herrera
High Country News

On a hot summer day in 2007, Gary Williams sat on a worn loveseat across from his dad, Floyd Williams, in Floyd’s Buckeye, Arizona, home. Gary, his sisters Diane and Letha and his brother Gerald were there to ask his father some serious questions, mainly about what happened after Gary’s mother, Julia, died some four decades earlier, when he was just 1 year old. Williams doesn’t know what his mother looks like. He has no memories of her face, or her hands, or her smell — not even any photos of her. For decades, he couldn’t remember where he was born and spent his first months, the Gila River Indian Reservation in Sacaton, Arizona

Williams spoke to his dad — who was in his late 70s, neatly dressed with slicked-back, still-brown hair — but he saved the toughest question for last: Why? Why did the state social workers take him away from his home, his family and his tribe when he was only a baby, and then shuffle him through Arizona’s foster system for the next 16 years?

There are seemingly simple answers — back then, Floyd was a long-haul trucker who was seldom at home, and the state said Gary and his two sisters and two brothers needed a female figure to care for them. And there are more complicated ones. “The system failed me,” says the younger Williams, whose wavy salt-and-pepper hair and gentle brown eyes reveal a quiet intensity and confidence. The system robbed him not only of his childhood family, but also his heritage.

Had he been born just a decade later, however, he might have been spared some of this trauma. In 1978, Congress passed the Indian Child Welfare Act, or ICWA, to prevent this sort of family-fracturing practice. The ICWA mandates that when a Native American child’s parent dies, exhaustive efforts must be made to reunite the child with the surviving parent or other relatives. Children are placed with non-Native families only when an Indigenous foster home, preferably one within the child’s tribe, cannot be found.

Now, a conservative Arizona think tank, the Goldwater Institute, is pushing hard to destroy some of the main parts of The Indian Child Welfare Act. It claims that the law is “race-based,” and therefore unconstitutional, and that it deprives non-Indian people of the chance to adopt Indian children. ICWA has survived numerous such challenges over the years, but with a president who has shown little support for Native Americans, this effort might finally topple it.

Gary Williams, a citizen of the Gila River Indian Community, was taken from his tribal family and placed in foster care in Arizona. Photo courtesy Gary Williams

Dave Simmons, a policy expert from the National Indian Child Welfare Agency, says that if the Goldwater Institute succeeds, it could throw federal Indian policy back a century. “What concerns us is that they’re trying to generalize and say, ‘You can’t trust any tribe anywhere to take care of their children,’ which is an old line that was used over a hundred years ago as they forced Indian people onto the reservations, and they took their kids forcibly from them and put them in military-style boarding schools.”

During the boarding-school era that began in the 1870s, Native children were taken from their homes and families and sent far away to live with strangers and learn “how to be white.” The policy was designed to erase Indigenous culture and force children to assimilate, thereby setting the stage for the adoption practices that followed. A lack of culturally competent child welfare workers and, in some cases, financial incentives for placing Indian children out of their homes added to the cultural devastation.

From the 1950s until 1996, the Church of Jesus Christ of Latter-day Saints ran what’s known as the Indian Placement Program, which removed Indian children from their tribes and into the homes of its members. During the 1970s, some 5,000 Indian foster children were living in Mormon homes. In his book The State and the American Indian: Who Gets the Indian Child? the late Troy R. Johnson, an American Indian studies professor, estimated that as many as 25 to 30 percent of Indian children were taken away to live in non-Indian homes before ICWA became law in 1978.

Williams was one of them. As a child, he was tossed from home to home, from one ugly situation to another. When he was just 6, his foster father, a man whom the children called “Uncle Jack,” was an alcoholic who physically abused Williams and his sisters, as well as his own wife and the two children they had adopted from a family member. He even beat the family dog. Williams and his sisters finally escaped by running away — taking the dog with them. To this day, Williams has trouble seeing out of his right eye, the legacy of a beating “Uncle Jack” gave him with a belt buckle.

Just before he started high school, Williams made his way back to Sacaton to reconnect with his biological father, his Gila River heritage and what was left of his mother’s family. By then, his sisters were grown and had families of their own. Williams’ grandparents had passed away, and the only relative who remembered his mother was his uncle Bobby, his mother’s younger brother. He and his sisters still hurt from the loss of their heritage, and they believe the state could have helped them more than it did.

Since the passage of ICWA in 1978, the law has been labeled the “gold standard” for child welfare laws — and not just for Indian children. Policies created under ICWA have been adopted by some states to ensure that children are only removed from their homes as a last resort. To honor the children and preserve the memory of what life was like before ICWA, Sandy White Hawk, a Sicangu Lakota citizen from South Dakota, hosts an annual powwow called Gathering of Our Children, where she welcomes people who were adopted or fostered out to non-Native families. She’s been able to uncover and share the stories of hundreds of children from all over the country who have been reunited with their Native families.

The Goldwater Institute, however, says that it is “fighting for equal protection of Indian children.” It cites a handful of cases where “active efforts” to reunify Indian children with abusive parents — rather than immediately placing with foster families or putting them up for adoption — traumatized the children. It points to cases like one in Oregon, in which the state terminated a couple’s parental rights to their son after they failed to follow through on court-ordered counseling and therapy. The institute has not provided any other details, including whether the boy, who is referred to simply as “L,” was abused or neglected.

“I think everybody would admit … that there are some cases in which it is better for a Native American child to be placed with a white or black or Hispanic family than with a Native American family,” Timothy Sandefur, one of the organization’s lead litigators, said. “That’s the point of all of our litigation here, is that the best interests of a particular child have to take precedence over other values.”

Even today, solid data about ICWA and its results is hard to come by. But available statistics tend to contradict the claims of widespread abuse in tribal communities. The number of deaths of Native children due to maltreatment is below the national average, according to a 2016 report from the Commission to Eliminate Child Abuse and Neglect Fatalities. The report found only 10 cases of death due to child abuse or neglect over a 10-year span.

In contrast, the Arizona Department of Children’s Safety is facing a class action lawsuit: A district judge in Arizona has ordered the department to improve its guidelines for removing children from their homes. Complaints against the department allege that it was taking kids at a very high rate, terminating parental rights without demonstrating adequate reasons. Arizona currently has 17,000 children in state custody for abuse and neglect.

A message to the Goldwater Institute, a conservative organization that has repeatedly attacked the Indian Child Welfare Act. The late Sen. Barry Goldwater (R-Arizona), the namesake of the organization, voted in favor of the 1978 law. Photo: Defend ICWA

The Goldwater Institute, named after former U.S. Sen. Barry Goldwater, R-Ariz. — who actually voted in favor of the Indian Child Welfare Act — is better known for advocating for private property rights, smaller government and lower taxes. Yet it has been focused on dismantling the law — rather than going after the Arizona foster care system — since 2014. Sandefur insists that the law amounts to racial segregation; ICWA, he says, discriminates against children based “solely on their DNA,” and tears children away from loving homes. His group just wants to “protect some of the most vulnerable Americans,” he says.

The think tank is currently litigating six ICWA cases in Arizona, California, Ohio and Texas. Messaging is an important part of its strategy: It has hired a so-called “investigative journalist” named Mark Flatten, formerly of the right-leaning Washington Examiner, to back up claims of abuse and neglect on reservations.

The institute’s messaging has been enhanced by mainstream media coverage. During the controversial Baby Veronica case, which involved a Cherokee father from Oklahoma and a non-Native couple in California, television news viewers witnessed a wailing child being ripped from her adoptive parents’ arms so that she could be sent back to live with her father. Media reports noted the amount of Indian blood that the child had, a distinction that is rarely publicly discussed when it comes to children of other races in the foster care system. ICWA is complicated, the cases are emotional, and good sources are not always easy to come by, especially on a deadline. As a result, media narratives are not always fully informed. The story played very well for the non-Indian couple in the Baby Veronica case, who eventually won in the U.S. Supreme Court.

The National Indian Child Welfare Association, members of the Gila River Tribe and others in the field of Indian law are outraged over the Goldwater Institute’s efforts to derail legislation that has helped thousands of children stay within their communities and retain their culture.

Mary Kathryn Nagle, an attorney with Pipestem Law in Tulsa, Oklahoma, and Washington, D.C., who works on ICWA cases, says that Goldwater is cynically mischaracterizing how the law works. “Goldwater’s claims that the ICWA constitutes an unconstitutional race-based classification are simply wrong,” she says. “Goldwater is attempting to use equal protection terms to dismantle a statute that is tied to citizenship in a sovereign tribal nation, not race. Nothing in the text or history of the Fourteenth Amendment’s Equal Protection Clause supports the idea that Congress cannot classify individuals based on their citizenship in a sovereign tribal nation.” Legal experts contacted for this article liken ICWA laws to international adoptions, which must proceed as a government-to-government affair. The U.S. should deal with tribes as the sovereign nations they are, just as the government does with other nations.

Cherokee Nation Chief Bill John Baker discusses an Indian Child Welfare Act case that went before the U.S. Supreme Court in 2013. Dusten Brown, in sunglasses, was forced to give up his daughter after the justices ruled against him. Photo: National Congress of American Indians

Stephen Roe Lewis’ father, Rod Lewis, was one of the first Native Americans to be admitted to the Arizona state bar, and he helped craft some of the original language in the 1978 law. To the younger Lewis, now governor of the Gila River Indian Community, Goldwater’s motives aren’t about child welfare. “Their ultimate aim is to attack sovereignty,” he says.

Sovereignty gives the Gila River people the power to guide their own destiny, to interact with the federal government on a nation-to-nation basis, and to have their own courts and laws based on their own cultural values, which include taking care of the children. Tribal members rely on ICWA to help them do that.

Lewis takes great offense at the Goldwater Institute’s negative portrayal of reservation life and in particular its characterization that ICWA is harming children. “You know, they make some outlandish claims,” he says. “No state, no town or city is perfect. No reservation is perfect. To characterize tribal nations in such a very base and racist way … it’s devoid of any type of humanity.”

Lewis wants to build a family advocacy center, a place that brings together tribal social workers, police, Gila River’s legal resources and investigators to make sure children are getting the help they need in cases of abuse or neglect. Those services are being paid for with money from the tribal-owned Wild Horse Pass casino, grants and federal dollars. But it’s not enough.

Dave Simmons, a policy expert from the National Indian Child Welfare Agency, says the agency is the first to acknowledge the challenges some tribal communities face challenges when protecting their children. Tribes receive almost no prevention funding, he notes. Though American Indian children represent just 2 percent of the total child welfare population, they are overrepresented in the state system at the rate of 12 to 14 percent. Yet these children receive just half of 1 percent of the available child welfare money.

Young citizens of the Omaha Tribe of Nebraska who were sent to the Carlisle Indian Boarding School in Pennsylvania in 1880. Photo" National Archives and Records Administration

Simmons says the institute’s messaging shows how little it knows about Indian Country or its laws. “They are trying to generalize that you can’t trust any tribe anywhere to take care of their children,” he said. “So we have to take kids away from Indian people because they can't be counted on to take care of their own children.”

In 2014, Gila River was forwarded an email from Goldwater, soliciting adoption cases involving non-Indian couples wanting to adopt Indian children. It offered its services — which normally run as high as $500 per hour — free of charge. Simmons said the institute is working with the American Academy of Adoption Attorneys, a very powerful agency that stands to profit from every adoption it can push through successfully.

Goldwater doesn’t list donors on its website, citing privacy concerns. But its recent 990s, a form the IRS requires tax-exempt nonprofits to submit, show the organization’s main source of revenue comes from private donations totaling over $4 million dollars. A recent article in The Nation claims the organization is taking money from the Koch brothers and other donors who also funded President Donald Trump’s campaign. “I feel that our children have a bounty on their heads,” says Gila River Gov. Lewis.

Sandefur acknowledged that Native American children and their families suffered horrible abuse during the boarding school era. Still, he remains firmly opposed to ICWA, calling it a matter of civil rights. He says ICWA violates children’s rights by forcing them back into abusive homes in dangerous places.

But for Gary Williams, those dangerous places turned out to be outside the tribe. Years after he had moved on, Williams drove to the house where his abusive foster father still lived. “I just wanted to see him,” he said. He parked across the street and spotted an old man scuttling around in a wheelchair. But Williams never got out of his car.

He did confront his foster mother years later, at the church they attended when he was a boy. Williams sat down next to her in the pew. “If any of these people knew what went on in that house, they would be shocked you’re a Christian lady,” he whispered in her ear. “But I forgive you.” She died two months later, he said.

After high school, Williams managed to stitch himself together and become successful. He was the first Native American to graduate from CalArts, paid for in part through tribal scholarships. Later, he worked as an animator for Disney, a job he remembers fondly. Today, he works for the Gila River gaming commission.

Williams and his sisters stayed together during part of their time in foster care. Eventually, however, they were split apart, and though he sees them now, the feeling of distance lingers. After he left foster care and moved in with his father, there were no family get-togethers or attempts to reunify the tattered family.

Most heartbreaking to him, however, is the knowledge that, back when his mother died, he had uncles and aunts in Texas who had been willing to care for him and his siblings. On that 2007 trip, Williams wanted to ask his dad why he hadn’t been sent to those relatives. He wanted to tell his father about bouncing from home to home and the physical abuse that still scarred him. But at the moment, as they confronted him, Williams said it was like looking at a ghost. “There was nothing he could say. Not even sorry.”

Allison Herrera is a member of the Salinan Nation and has covered the environment and Native American communities in Oklahoma for KOSU Radio. Her work has aired on Reveal, All Things Considered and National Native News.

This story was originally published at High Country News (hcn.org) on March 5, 2018.

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