Supreme Court hears case challenging who can adopt Indigenous children

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• Judy Woodruff:

  Another major issue for Native Americans in Oklahoma and the rest of the country right now is the Indian Child Welfare Act.

  It governs the removal of Native American children from their home and where they are subsequently placed, in an effort to keep them with other family members and with their tribes.

  But, as Stephanie Sy reports, next week, the U.S. Supreme Court will hear a challenge to the law that could dismantle it entirely.

• Stephanie Sy:

  Seven-year-old Waleli, which means hummingbird in Cherokee, is learning the language of his tribe.

  At this indigenous language immersion school, all of Waleli's subjects are taught in Cherokee, and the children learn to write in the syllabary created by Sequoya. Waleli's great uncle, Curtis Washington, is one of the teachers and one of a dwindling number of Native Cherokee speakers.

  Were it not for the Indian Child Welfare Act, or ICWA, Waleli might never have uttered a Cherokee word. When he was only 23 months old, authorities removed him from his biological parents due to child endangerment.

• Jeanette Washington, Cherokee Nation:

  So, we prayed about it. And we just thought that the lord put them in our hands, or we wouldn't have gotten this call.

• Stephanie Sy:

  The Cherokee Nation's ICWA office invoked the law to prioritize finding suitable guardians within his extended family, which ended up being his great aunt and uncle.

  What would have happened if you had not taken him that day?

• Jeanette Washington:

  DHS told me that they would have been put in a foster home. If it went to a non-Cherokee person, they wouldn't have any idea of anything of how Cherokee lives, any of the culture.

• Stephanie Sy:

  Before ICWA, Native children in Waleli's situation would routinely be placed with non-Native families, severing them from their tribal heritage.

• Chuck Hoskin Jr., Principal Chief, Cherokee Nation:

  They are removed completely out of tribal lands, completely out of tribal families. This was devastating for tribes.

• Stephanie Sy:

  The chief of the Cherokee Nation, Chuck Hoskin Jr., says, when Congress passed ICWA in 1978, it was to rectify that gross offense.

• Chuck Hoskin Jr.:

  Now we're looking at a generation in which I see young people out there striving for excellence. I see our language being revitalized. I see renewed interest in our culture and our history by our own people.

• Stephanie Sy:

  Forty-five-year-old Juli Skinner, who works for the Cherokee Nation, is among the first generation to benefit from ICWA's reforms.

  A member of the Ponca Tribe in Oklahoma, she and her twin sister were removed as babies from their biological parents, who weren't able to care for them. Before they turned 1, they were moved among 20 foster homes.

• Juli Skinner, Cherokee Nation:

  I had a lot of fear. That's my first memory, is fear, is being afraid of — not really remembering what I was afraid, but of everything, pretty much.

• Stephanie Sy:

  Because of ICWA, they were eventually adopted by a paternal relative.

  Do you ever think about what your life would have been like if you had had been severed from your tribal family?

• Juli Skinner:

  That would be a huge loss for me that I don't think I could have got over.

  I know I would not be here where I am right now. I think I would have — probably be lost.

• Stephanie Sy:

  The systematic repression of Native language and culture throughout American history, from forced relocations to forced family separations, is a key argument proponents cite for keeping the law.

  But ICWA has always had detractors. And, on November 9, the Supreme Court will weigh in the case of Brackeen vs. Haaland. Plaintiffs opposing ICWA alleged that the law violates the Constitution's Equal Protection Clause and the Anti-Commandeering Doctrine, which states that the federal government cannot require states to adopt or enforce federal law.

  Timothy Sandefur, Goldwater Institute, ICWA is itself systematic racism against children who are at the greatest risk of any demographic in the country.

• Stephanie Sy:

  Timothy Sandefur of the Goldwater Institute says Native American children are being deprived of legal protections based on their race.

• Timothy Sandefur:

  It certainly is true that ICWA had good intentions when it was passed. Unfortunately, as often happens, Congress went way too far in the other direction, and said that the best interests of a particular child should take a backseat to the desires of tribal governments.

• Stephanie Sy:

  He points to cases where he says the application of ICWA has harmed children, because it puts a different standard on removal from biological parents.

• Timothy Sandefur:

  It should be, as with all other children, a case-by-case determination, where the most important thing is the child's best interest.

  Instead, by making it prohibitively difficult to sever the rights of an abusive parent, ICWA ends up harming these children.

• Stephanie Sy:

  The best interests of the child are also what worry Michelle and Robert Guerrero, who live outside of Sacramento, California.

  Like the couple we met on the Cherokee Nation, they have been raising a little boy, Robert's grandson.

• Michelle Guerrero, California:

  He was released to us at 8 days old. And he has been with us ever since. And

• Stephanie Sy:

  why was he released to you?

• Michelle Guerrero:

  The parents were both addicted to drugs.

• Stephanie Sy:

  We are not identifying the 5-year-old boy because of the ongoing legal process the Guerreros are now entangled in.

  The boy's father, who is Native American and now sober, decided in March to petition for custody. The boy is not an enrolled member of the tribe, but ICWA is being applied to his case.

• Michelle Guerrero:

  I think we feel the decision was made before even getting to court because that they are a Native American family, not giving any thought to the family that he has here.

• Stephanie Sy:

  When he's not playing grocery store or with his toy trucks or barbecuing with Robert, who he calls papa, the Guerreros have tried to connect him with his Native heritage.

• Michelle Guerrero:

  They send an ICWA specialist here to talk with us. And so we talked about Native American stories and Native American music.

  We have the Maidu Museum here in the area. We used to take him there campfire night. We would invite the biological father to come as well. So, it's definitely something that we want him to experience and be a part of.

• Stephanie Sy:

  But the Guerreros is stability is the most important factor at his tender age.

• Michelle Guerrero:

  The best interest, we felt, was for him to stay where he is, and continue living in the home that he's known for all his life.

• Stephanie Sy:

  They're watching what the Supreme Court does on ICWA closely, as is Juli Skinner back on the Cherokee Nation.

• Juli Skinner:

  If the Indian Child Welfare Act is overturned, we will be devastated.

  This law protects that voice for tribes, because we have been silenced for so long. And to have it silenced again because people from outside our tribe think they know better than we do is heartbreaking.

• Stephanie Sy:

  Cherokee Chief Hoskin says the stakes go beyond the placement of tribal children. If the Supreme Court dismantles ICWA, it could affect other federal Indian policies and tribal sovereignty.

• Chuck Hoskin Jr.:

  I think it'll set back the progress we have made in Indian country, and I think it fundamentally changes what it means to be a Native American in this country. And we really, really can't let that happen.

  For Curtis and Jeanette Washington, Waleli was a blessing in disguise. Raising him has reignited their own connection to their Cherokee identity.

• Curtis Washington, Cherokee Nation:

  Cherokees need to stay in their Cherokee culture somehow, some way.

• Stephanie Sy:

  For the "PBS NewsHour," I'm Stephanie Sy on the Cherokee Nation in Tahlequah, Oklahoma.