Editor’s note: Hilary C. Tompkins, a member of the Navajo Nation, served as an attorney for the US Department of the Interior during the Obama administration. She currently practices law in Washington, DC. The views expressed in this piece are her own. Read more opinion at CNN.
My adoption papers stated that my mother was “very attractive” and that my “grandmother has some education and is considered an intelligent woman.” My father, who was listed as “Plains”, was described as having “hair with a slight tendency to wave”.
These little bits of information from my adoption papers were my only connection to my birth family. It wasn’t until much later in life, as a young adult studying Native American Studies at Dartmouth College, that I learned that as a citizen of the tribe I also had a legal connection with the Navajo Nation.
I am like many Indians who were placed with white families as part of the Home Office’s Indian Adoption Project in the 1960s and 1970s.
As with the placement of Indian children in boarding schools, this program removed Native children from their tribes without justification and assimilated them into the American mainstream. When I met my birth family as a young adult, one of my aunts held me and cried. She said the last time she held me I was a baby and she had told the hospital officials that she and my extended family would take care of me. but in vain. I was taken away anyway and put up for adoption.
Realizing that the continued existence of tribal nations was at stake due to the loss of up to 35% of their children, Congress outlawed the practice in 1978 with the passage of the Indian Child Welfare Act (ICWA). At the time, placement with white families was estimated at 90%.
Earlier this month, the US Supreme Court heard oral arguments in a closely watched case Haaland against Brackeento decide whether the Indian Child Welfare Act is unconstitutional because it encourages the adoption of native children by native families.
The states of Texas, Louisiana and Indiana, along with non-Native parents who wish to adopt Native children, say ICWA amounts to racial discrimination because it has nothing to do with “Native Americans’ ability to govern themselves.” They argue that since no tribal political interest is at stake, states and non-Indigenous parents should be able to decide on the placement of Indigenous children regardless of their tribal status.
And opponents of the Indian Child Welfare Act go even further, saying the law violates the best interests of indigenous children by imposing standards that make it difficult for them to be placed in stable, loving homes.
As a Native American who was adopted into a white family prior to ICWA’s inception, I don’t see it that way. As a citizen of both the United States and the Navajo Nation, I can attest firsthand that ICWA is not about race.
I grew up in southern New Jersey, but I always knew I was a Navajo. Born in Zuni Pueblo, New Mexico, I was separated from my family with few papers to prove my tribal status.
My life today gives the impression, by all appearances, that the Indian adoption project was a success. I came into a family that loved me. I received an exemplary education. I live a comfortable, middle-class life. I have enjoyed professional success after serving as Counsel for the Department of the Interior, the third-tier position in the Department – the federal agency that has shaped my life’s path. But despite these blessings, the Indian adoption project failed me as a foreigner in my own country.
When I returned to the Navajo Nation nearly 30 years ago, my sense of loss was overwhelming. The Navajo Nation is a different world: Navajo is widely spoken, and the laws and way of life are based on Navajo traditions. There is no separation of Navajo spirituality from Navajo sovereignty. A fundamental principle is ke’ – kinship – rooted in a vast clan system. I didn’t know my clan and couldn’t speak the language. Nor did I understand the complex and traditional laws of Navajo society. The loss of my culture was not just personal, it was political.
I tried to make up for my losses, learned some of the language, attended our traditional ceremonies, and worked for the Navajo Nation Justice Department. But despite my best efforts, I couldn’t catch up. I can vote in our elections, but I don’t understand the blunt speeches. I cannot run for office because I am not a fluent Navajo speaker. I reconnected with my birth family, but never felt fully integrated into Navajo society.
ICWA recognized that in order to have functioning tribal governments, one needs the next generation of tribal citizens to be part of tribal political society. The taking away of native children threatens the future of the tribes because the loss of their children endangers the ability of the tribes to be politically sovereign entities. The law favors a Native child’s placement with extended family members, members of his or her tribe, or members of another tribe — a priority that can make it difficult for a white family to adopt. It requires state courts to inform the tribe about the child and let them specify their preferred placement — or say that placement with a specific non-native family is fine.
During the hearing earlier this month, two of the judges said they understood the stakes for tribal nations. Judge Neil Gorsuch noted during the hearing that, in passing the bill, Congress understood that ICWA was “essential to [the] Self-preservation of the Indian tribes.” And Judge Kagan recognized that “the political entity itself is being threatened because decisions are being made about the placement of children.”
If ICWA had been present at my adoption, my tribe would have been involved in my adoption. The Navajo tribal authorities would have had a say in my adoption if I had been adopted under the terms of the law. I could have kept in touch with my relatives – even if I had ended up with white parents. I could still have been adopted by a non-native family, but my adoptive family might have been able to connect with my extended family or others and foster a connection with my tribe. But because I was put up for adoption before ICWA existed, I had to reconnect with my tribe all by myself.
My family and I finally found each other by accident while I was living on the Navajo Reservation. In middle age I accepted who I am – a Jersey girl born into the Salt clan. I overcame the pain and the loss. But I wouldn’t wish my experience today on the children of tribal people. We cannot fail local children again as we have failed them in the past.
Native children deserve the opportunity to become citizens of the United States and tribal nations. I pray they will not become the subject of yet another social experiment based on the decisions of government officials who have not followed in the footsteps of First Americans.