The Supreme Court’s War on Indian Children


At the end of June in a 5-4 ruling, the U.S. Supreme Court undermined a 1978 federal law that discouraged the adoption of Indian children outside their culture by protecting the presumptive rights of the biological Indian parents.

Indian rights activists and their supporters asserted that the Supreme Court’s decision threatened key aspects of the landmark Indian Child Welfare Act. Former Sen. James Abourezk, D-South Dakota, who was a key champion of the 1978 legislation, called the decision “an attack on tribal sovereignty through the children.”

Native American leader Bill Means, a co-founder of the American Indian Movement (AIM) and a board member of the International Treaty Council, discussed the ruling and other issues of indigenous rights in the Western Hemisphere with me. I interviewed Means just as he arrived on the Pine Ridge reservation near the site of the infamous Wounded Knee massacre in South Dakota. Means was participating in the Sacred Sun Dance Ceremony, one of the seven sacred ceremonies celebrated by the Lakota people.

DB: I’m sure, Bill Means, you are quite aware that the Supreme Court recently decided to side aside certain aspects of the landmark 1978 Indian Child Welfare Act. Now, this is only one case but it highlights a longstanding issue when it comes to the U.S. government taking the children of indigenous peoples, native peoples of this land. You want to talk about your response to the Supreme Court and really address this larger issue which I know hits that reservation hard, at Pine Ridge?

BM: This has been a long struggle since the Indian Child Welfare Act was passed back, I believe, in 1978. And since that time it has … the original intent was that, before an Indian child could be adopted to non-Indian community, that the relatives, on or off the reservation, would be contacted in order to give a priority of raising the child, and keeping the child in the culture of his origin, in the culture of his family, of his people. The reason they passed this was that we had a tremendous trafficking of Indian children, which, in a way, still goes on today. It’s … very much needed to expose that the Christian Church is probably most responsible for adoption of Indian children off the reservation. And this [law] set up a process where the tribe had to be involved.

Now the present case that was overturned involved non-Indian parents who had gotten custody … and see there’s this legal term they call “termination of parental rights” in which the parent … in this particular case, had never had his rights terminated. But because the child had been with the non-Indian family for so long the Supreme Court felt, in their lack of cultural knowledge, that somehow because this young child had been with this non-Indian family for so long, they should step over the law, ignore the law, and give the non-Indian family custody. And see the law when it was passed was a very kind of non-restrictive in that it wasn’t always recognized in the state courts, it was a federal law.

So, therefore, most state courts, county courts wouldn’t even allow this law to be used in their jurisdiction, which complicated the matter, and has allowed this thing to go to the Supreme Court. The Supreme Court did say they did not strike down the law as unconstitutional, so that’s somewhat of … shall we say, some positive that remains.

But, to give you an example, back in the early history of A.I.M. in the Seventies, the Christian churches, here in the state of Minnesota and South Dakota, were averaging 30 Indian children a month being adopted out to non-Indian families. And after a lot of research was done in a book called My Brother’s Keeper: The Indian in White America … a lot of studies that were done by other Indian organizations throughout the country showed these horrendous statistics that brought about the Indian Child Welfare Act where churches were engaged almost every single day in adopting Indian children because there was a very, shall we say, stereotypical image that Indian children were neither black nor white, therefore, they were most desirable. As well as getting the Indian child off the reservation, as if that automatically meant that they would have a better life. And so it took years of protests, of statistics, of studies to get the Indian Child Welfare Act passed in 1978. So this is a very, very, shall I say, heavy set back.

Now, most of the border towns, those are towns bordering around Indian reservations, of which there are 250 some reservations in the United States. Most of the border towns, now, at least acknowledge the Indian Child Welfare Act. Most, when it first was passed, most state courts, county courts … they didn’t recognize it at all. And here in the state of Minnesota, even the state passed an Indian Child Welfare Act that’s stronger than the federal law. So in some states we have good law, other states if they choose to not recognize the Federal law then you’re at the mercy of judges and juries that have no knowledge, that are basically, scholastically retarded in the area of Indian culture and Indian affairs. So it’s a very biased and prejudiced situation once you get outside the states where you have large Indian populations, which was exactly the case in the Supreme Court decision.

DB: And, Bill, one of the things that happens, they like to say “Well, these folks can’t take care of their own children, look they don’t have a job, they are living in squalor on the reservation. They’re not even human…” and while they used to say these things publicly, now they just sorta think them, but the law reflects that reactionary history, correct?

BM: Oh, definitely so, and as a matter of fact, that’s why we made there, in the law was said that relatives, not necessarily the direct family, but relatives would also have a voice. So not everybody in every family is out of work or incapable of taking care of a child. Because children just like in any culture, in the Indian culture have a very special place, and are viewed as a gift from the Creator. So that’s why we enlarge the, shall we say, jurisdiction of the law to include other family members, not just the biological parents. So that’s important recognition that wasn’t even mentioned in the Supreme Court decision.

DB: We want to talk to you also about this so-called immigration reform. We’ve seen that the Senate has passed some form of a potential bill for reform. … My colleague here, Miguel Molina, calls it a jobs program for returning veterans, just put them on the border. But, your thoughts now, in terms of real reform, what’s going on now in Congress, what’s really happening in Arizona with the intensification, the security?

BM: We, being the International Treaty Council and A.I.M., we’ve had two conferences on the border of U.S./Mexico dealing with this very issue. Because we have about, I think it was about, eight reservations in the United States in which the border is a direct factor, on or near the reservation. And so we saw first-hand in these two conferences, the militarization of the region, the destruction of the recognition, the sovereignty of Indian people and Indian tribes. Where basically, tribal governments were ignored, and the border was militarized, not only with, shall we say, four or five different jurisdictions of law enforcement but even with the Big Brother mentality, where they put up these virtual borders, or these virtual fences, not to mention the physical fencing. Which incidentally most of it was built by Israeli companies who built the, a lot of it, I should say, who built the wall separating Palestine and the country of Israel. So it gives you a background as to the mentality here, of what we’re dealing with.

And nobody talks about the issue of racism.  Because when European immigrants came to America they literally gave them our land, Indian land. In this case, we have indigenous people, most of whom, are indigenous that are coming over from several countries south of the U.S./Mexico border. Instead of having a Statue of Liberty that says “give me your tired, your hungry, your huddled masses yearning to be free” … we get a wall. We get a militarization. We get the denial of human rights.

And, so it becomes to us, as indigenous people, a very racist policy, to even think that our relatives are not welcome. And the basic fact that they come here to work, to try to better the conditions for their families to live under. Many of their jobs that were destroyed by a policy such as NAFTA, which drove the price of corn down so low that an average family farmer with two hectares of land in Mexico could no longer feed his family, on the corn that he used to grow.

And not only that, production of the seed of the corn is even contaminating the indigenous corn that was raised for thousands of years by indigenous people using these hybrids, genetically engineered. So all those various issues go into this border where we’re forcing people from these countries of Latin America. Which we exploited for their minerals and their cheap labor in the first place, now when they come to America to find a job, that nobody else wants to do in America, they are stigmatized as criminals, they’re not following the proper procedures, breaking the law and now we want to make them citizens.

So the whole idea, the background behind this immigration reform, is very, very racist policy to begin with. Now, for the present law, they call it a path to citizenship. Remember when the immigrants came from Europe they said … signs all over Europe: “Free land.” They didn’t tell them: “We’re going to give you Indian peoples’ land, or indigenous peoples’ land.” So they came. But the immigrant coming from Central and South America, they’re not coming to take our land, they’re coming to have jobs.

So, we have a total contradiction not only in the reason for coming, but to implement colonialism back in the day when Europeans were coming to give them free land. Well, it wasn’t free because it was our land. But, on the other hand, when they stepped off the boat there was an immediate process for citizenship, on Ellis Island. It’s even full of a museum that shows that history, that Americans can go ahead and find where their families came from.

But yet when the brown people, the red people start coming across the border from the south, they’re automatically branded as criminals. So I think this whole idea is very, very perverted. And I think that if we have a path to citizenship, it should be immediate. So that they can come to the border expecting to have some form of options for citizenship, for working … because a majority of these indigenous peoples, and all peoples coming from Latin America, they don’t come here to settle, to be here, necessarily. The majority expect to return home.

As a matter of fact, it’s many, many billions of dollars are exported from the United States back to Latin America, to provide for their families. And so we need to take those economic situations, and their desire to return home into consideration when we develop these immigration policies. Not just make one sweep with one paint brush and say “We’ll give them … maybe a thousand people a path to citizenship per month.” Well, let’s develop some policies like they had at Ellis Island, let’s start there. And if we can develop something similar to that then I think indigenous peoples may even support it.

DB: I just received a communiqué from Fernando Garcia, who works with the Border Network for Human Rights and let me read you just a little bit of his letter here, I’m looking at, by the way, this fence which has hundreds of crosses of dead people, the names of dead people on them … nailed to this border wall. But he writes: “The morgues in Arizona are filled to the brim with the bodies of migrants. Men and women with families and dreams who die of dehydration and exhaustion, crossing remote terrains, in an effort to avoid border patrol.”

And, they attribute it directly to this intensified security. And, they’re talking about there’s going to be a lot more crosses on this wall if this Corker Hoeven amendment becomes part of the legislation. That’s the pump up, doubling the security at the border. Your thoughts?

BM: Well, of course, when we were doing the conferences on the border with the indigenous people, we documented that on one reservation … near Tucson, Arizona, they average per year anywhere between 30 and 50 deaths of people on their reservation who, all they needed was a drink of water. And then we found out that the federal government, all these military and police jurisdictions, could actually charge people for giving them a drink of water..with aiding and abetting a felon, and other various federal charges! So they need to, first of all, recognize human rights, that people should have the right to help people, if they are coming across the border, to give them a drink of water. No one has to die over the situation.

And we found out that it was an annual experience of, like I said, 30 to 50 people a year die, especially this time of year, when it’s the hot sun, the hot summer sun. And, of course, this is the harvest time … beginning now with the early crops of lettuce, onions, etc. So now we have people coming over knowing that they may be able to get jobs, we have ranchers, and we have the farmers in America who are even on the side of immigration reform, but yet their voice is like non-existent, or it’s not being heard. And so I think this idea of these people dying is absolutely, totally human rights violation and it’s unnecessary. And it’s been well documented that people can be charged with federal crimes for helping people get a drink of water.

DB: I want to talk to you a little bit about all these revelations about everybody being bugged, the meta-data, the NSA whistleblower, surveillance, tracking … I know in the Native American community this has been going on a long time, in various ways. You think your phone is bugged?

BM: Well, there’s no question because our surveillance started way back in the colonization of our land, through the missionaries. The missionaries were the first surveillance. They were the eyes and ears of the military. They told the local military commanders who wasn’t going to church, who refused to get baptized, who was organizing resistance. And so this has been a long history since the Americans came to this land.

And so this is another form of that ongoing, historical policy of the United States to watch over, and to document, and to spy on its own citizens. Only, now it’s just become more sophisticated with the times. But it’s been going on all along, and because the business people can benefit, the capitalists can benefit from this type of, shall we say, surveillance and new type of equipment that’s needed … and everybody is a terrorist, the War on Terrorism, the War on Drugs, and now it’s the War on Information. So, it’s a continuing policy that began during colonial times.

DB: You served in the military, didn’t you, Bill?

BM: Yes, I did.

DB: And, well, they’re referring to this increased border security as a “surge.” You know they had the surge in Iraq, everybody loved it, they had the surge in Afghanistan, everybody loved it, now, again, I’m taking you back to the border, we’ve got the military term here. We’re going to have a surge at the border! And I guess we’ve seen a surge at Occupy demonstrations, we’ve seen military surges against the people everywhere, this notion of militarization at home.

BM: Yeah, I think the word – “surge” – kinda makes it palatable to the general public. They pick up these buzz words. But really what they mean is the diminishment of rights, of human rights, the recognition of the diminishment or lack of civil rights. So, I think, they figure out these ways to present it in kind of, shall we say, a public relations campaign, to make people think that it should be compatible, it should be supported. But all the time we’re gettin’ … the First Amendment is almost non-existent now. And now they are even using the word – surge – as it relates to surveillance.

At least, in the military situation, you are talking about troops on the ground. You’re talking about military hardware. But in this case you’re talking about surveillance material, but also there is, as part of this bill, which is another sell-out by the Democrats and the administration in order to get it passed they had to guarantee a tremendous increase in the amount of border patrol, and the amount of Homeland Security, and the amount of surveillance equipment so that pretty soon the whole border will be, shall we say, secured by very few gates. It will be a long wall with very few gates. So that even the flow out of the country, as well as into the country, everything is controlled, every day, 24 hours a day.

DB: And, Bill, we always talk to you about this, but I think it’s really important that we come back to this notion of migration verses immigration because, you know, it’s like they just want to come here because we have the great life, they have no homes, no place, no money in their home country, and so they come here for the good life in America. But we know that migration is forced migration, and that’s really what it’s about, isn’t it?  It’s not this notion of immigration and reform, but this is about migration based on international issues in which the U.S. and the West are squeezing the poorer countries.

BM: Exactly. As they take more resources, as they depend more on cheap labor, then those that used to be able to live in a rural economy are forced into the city. There’s no job in the city, so they are forced into another country. And, now that the economy, they say, is coming back in America, then the migration is going to increase, dramatically, and proportionately to the economy.

And so I think, on one hand we’ve pushed the people out of the rural areas so we can mine their lands. And then when they come to our country to … these are American corporations I’m talking about … primarily, American and Canadian. We find that the same corporations that mine uranium in Arizona, are the same corporations that want to mine minerals in Latin America. It’s a tremendous cycle of poverty, and it’s a cycle of violation of human rights. It just does not make any sense for the survival, for the betterment of humanity, that we continue to exploit these resources uncontrolled, almost.

And we don’t want to deal with the consequences, looking ahead, we are forced to deal with them after they become a problem, and then it’s very reactionary. It’s not long term. And then they want to criminalize everybody. So I think the whole system of unadulterated greed was never accounted for under the capitalist system. It’s one thing to build your business, to have employees.

But just to base everything on total greed and expansion, at the cost of Mother Earth, is going to destroy our ability to live on the Earth. Ultimately, we’re not going to destroy Earth, because we’re not that powerful. I don’t care how many nuclear weapons you have, you cannot destroy the power of Mother Earth. You’re only going to destroy the human ability to live on the Earth.

Dennis J Bernstein is a host of “Flashpoints” on the Pacifica radio network and the author of Special Ed: Voices from a Hidden Classroom

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