Supreme Court to review status of Native adoptions, foster homes in Indian Child Welfare Act

Nov. 6—TRAVERSE CITY — On Nov. 9, the U.S. Supreme Court is scheduled to address the constitutionality of the Indian Child Welfare Act in a review of the case Brackeen v. Haaland.

ICWA was unanimously passed by Congress in 1978 in response to excessive numbers of Native children removed from their homes, by public and private agencies and placed in institutions or with non-Native families. ICWA expanded tribal governments' jurisdiction of tribal courts to oversee foster care and adoption placements in cases involving Native children.

Supporters of ICWA worry the case could set back efforts to protect Native children from unnecessary removals and threatens tribal sovereignty as a whole.

Local groups also strive to strengthen Native American foster homes placements, as numbers of Native American children needing them increase.

According Child & Family Services of Northwestern Michigan, there are 72 children under the care of CFS, 10 of which are Native American, ranging from infancy to young teens. But only two houses are licensed "tribal foster homes" in the 30 counties they serve — one of them in the Grand Traverse region.

Jenna and Lewis Genereaux of Kingsley have been providing compassionate, trauma-informed, and culturally competent foster care with the organization since 2019. The young couple began fostering seven years ago through Bethany Christian Services. Jenna then went on to earn her master's degree in social work. They both instill Anishinaabe traditions, language, and culture to the children they foster, alongside their two biological children.

Their goal as foster parents is to keep the children as long as possible, because "all children deserve stability and a sense of belonging," said Jenna, 29. She has been on both ends of foster care, and hopes their family can shine a light on the importance of having ICWA homes in the region. Because they are the only ICWA family in the area, there is high demand for placements, and right now their house is at capacity.

To know there are not enough Native foster homes to go around, Jenna said, "it's hard."

Lewis, 31, is a citizen of the Grand Traverse Band of Ottawa and Chippewa Indians. He said his culture is an important part of being a foster parent because cultural preservation ensures a strong identity in a child.

"It's a very important aspect," said Lewis. "Our cultures are shrinking, our knowledge, and histories with our people need to be preserved."

Five sovereign nations are intervening in the case, and a total of 497 Native tribes, including 11 of the 12 federally recognized tribes in Michigan, 62 American Indian organizations, 87 members of Congress, 23 states and Washington, D.C., have filed briefs in opposition to the Brackeen plaintiffs.

Prior to the act, the US government used boarding schools, foster care, and forcible adoption to separate Native youth from their families, and communities, which stripped them of their culture and language.

In the 1950s, the Bureau of Indian Affairs launched the Indian Adoption Project, through which the government paid the Child Welfare League of America to place Native children up for adoption.

The National Indian Child Welfare Association (NICWA) reported that prior to the ICWA as many as 35 percent of Indigenous children were taken from their families, with 85 percent of these children placed outside their families and communities — even with safe relatives willing and able to take them in.

A survey by the Association on American Indian Affairs in 1973 found that in Michigan there were 3.7 times as many Native children as non-Native children in adoption, even though Natives only made up less than one percent of people younger than 21 years old, according to Census figures.

Kate Fort, one of the nation's leading experts on the ICWA and the director of the Indian Law Clinic at the Michigan State University College of Law, said when boarding schools were no longer used, the system changed into forcible removal through the child welfare system.

"ICWA was the first time in U.S history that the federal government decided to change its policy from destroying and dismantling Native American families to setting minimum standards for state courts," she said.

The law ensures that certain minimums are met by the states when they are removing and placing Native American children.

Michigan has its own version of this law — the Michigan Indian Family Preservation Act that runs parallel to ICWA and fills in some gaps for the state. MIFPA incorporates ICWA expectations into state law. Michigan, in fact, is one of just eight states with comprehensive ICWA laws in place.

MIFPA, which Fort helped to write, raises that bar. But perhaps more importantly, she said "it incorporates those expectations into state law."

Although progress has been made as a result of ICWA, out-of-home placement still occurs more frequently for Native children than it does for the general population.

"There is still an implicit bias today," Fort said.

Recent data from NICWA shows that native children nationally are four times more likely than other children to be placed in foster care at their first encounter with a judge during a child welfare hearing than their white counterparts.

Children & Family Services proudly support the ICWA, said Emma Smith, agency development specialist. If the act is overturned, it would be "catastrophic."

"When we don't have Native American homes, we must look at what is lost, which is language, cultural stories, and community ties — all of which are a priority to the organization," Smith said.

Aprille Sutton, a foster care and adoption specialist for CFS, said decades of systemic racism, general trauma, and a lack of resources in Native American communities continue to contribute to the racial disproportionality in the child welfare system.

The Record-Eagle reached out to Grand Traverse County's only other adoption and foster care agency, but did not receive comment on the number of Native American children under their care regionally.

Both Children & Family Services officials and the Genereaux family urged Native American households in the region to apply to become foster parents, if they are able.

Report for America corps member and Indigenous Affairs' reporter Sierra Clark's work is made possible by a partnership between the Record-Eagle and Report for America, a journalism service project founded by the nonprofit Ground Truth Project. Generous community support helps fund a local share of the Record-Eagle/RFA partnership.

To support RFA reporters in Traverse City, go to www.record-eagle.com/rfa