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The U.S. government's relationship with Native American tribes has long been fraught, to say the least. A federal judge in Texas recently struck down a law that tries to ensure Native American children put up for adoption are paired with Native American families. The ruling reopens questions about Native identity and race-based preferences that many thought were settled decades ago. NPR's Wade Goodwyn reports from Tahlequah, Okla.
WADE GOODWYN, BYLINE: In 2014, Paul Buckley and his wife, Cheryl, fostered a baby boy named Mason.
PAUL BUCKLEY: We both have a heart for helping children, and it seemed like a way that we could provide something to the community and specifically to children.
GOODWYN: After raising Mason for a year and a half, the Buckleys decided to adopt. It was straightforward until, late in the proceedings, the Choctaw Nation intervened on behalf of the child's great uncle. It turned out that Mason's mother and therefore Mason was part Indian.
BUCKLEY: Mother had never mentioned this. We had never been told that there was anything there. And Mason didn't even look Indian in the least regards. Most everybody that was involved in the case was equally shocked.
GOODWYN: The legal proceedings were terminated, and the adoption process started all over again, this time under the auspices of the Indian Child Welfare Act. The law says Native American children must be placed and adopted by either a family member, a member of their tribe or, failing that, a family from another tribe. To understand why Indian adoptees are handled under different law than other children, it helps to know the history.
CHRISSI NIMMO: Assimilation was the goal. We have these savage, uncivilized Indians, and we need to make them Americans.
GOODWYN: Chrissi Nimmo is the deputy attorney general of the Cherokee Nation. About an hour east of Tulsa, the flat prairie of Oklahoma begins to pleasingly bubble into the foothills of the Ozark Mountains.
(SOUNDBITE OF FLUTE MUSIC)
GOODWYN: In front of a packed house at the Cherokee Veterans Center, celebrated Cherokee flutist Tommy Wildcat plays for his tribe.
(SOUNDBITE OF FLUTE MUSIC)
GOODWYN: Since being driven across the Trail of Tears 175 years ago at the point of a gun, Tahlequah, Okla., has become the center of the Cherokee Nation - its music, its language, its culture and its government. Cherokees constitute the largest tribe in the country, 360,000 strong. And it's therefore no surprise the nation's deputy attorney general is the lead attorney in the legal battle over the Indian Child Welfare Act. Nimmo says the law was passed after more than a century of Indian children being taken from their tribes by whites.
NIMMO: So we're going to take their children, and we're going to train them in military boarding school. We're going to teach the girls to sew. We're going to teach the boys to work with their hands. And then they're going to go live in white American society, and they're going to fit in with the rest of the country, and Indian tribes as we know them will be no longer.
GOODWYN: Thousands of Native American children were put into government dormitories. At the U.S. Training and Industrial School founded in 1879, the motto was, kill the Indian, and save the man. By the late 1950s, an effort named the Indian Adoption Project began pairing Native American children with white families. At the time, it was considered enlightened adoption, white families open-minded enough to take Indian children. The deputy attorney general says there were advertisements in newspapers.
NIMMO: Basically that you could buy an Indian child for $10. And there literally was this ad that Indian children were available for adoption. And for a $10 sponsorship fee, they would send you one.
GOODWYN: The Bureau of Indian Affairs would sometimes pay to place Native American children with white families. The Church of Jesus Christ of Latter-day Saints had a robust Indian placement program. Thousands were adopted by LDS families. Nimmo says tribes began looking around going, hey, where are all the children?
NIMMO: One-third of all Indian children in the United States had been removed from their parents, and between 80 and 90 percent of those had been placed in non-family, non-Indian homes.
GOODWYN: In 1978 with bipartisan support led by congressmen and senators from the Western states, the Indian Child Welfare Act passed Congress and was signed into law.
GOODWYN: Forty years later at Cherokee Elementary School in Tahlequah, the first graders are here in force learning their native language.
UNIDENTIFIED PERSON: (Speaking Cherokee).
UNIDENTIFIED CHILD: (Speaking Cherokee).
GOODWYN: But in October, U.S. District Judge Reed O'Connor struck down the Indian Child Welfare Act as unconstitutional. The Texas judge ruled the law is a racially based preference that discriminates against non-Indian families.
TIMOTHY SANDEFUR: The problem was that it was so poorly worded that it now inflicts harms on Indian children that it was supposed to protect.
GOODWYN: Timothy Sandefur is vice president for litigation at the Goldwater Institute in Phoenix. Sandefur filed a brief in support of striking down the law.
SANDEFUR: We're working on a case right now in Ohio where there's a 2-year-old boy born in Ohio, has lived in Ohio his entire life - almost his entire life with an Ohio foster family. But because his ancestry is Gila River, the Gila River Indian tribe in Arizona obtained an order from its own tribal court forcing the child to be sent to live on the reservation near Phoenix simply because the blood in his veins happens to have the required amount of DNA. That's unconstitutional and absurd.
GOODWYN: Remember Mason, the toddler that was about to be adopted by the Buckley family when his great uncle in the Choctaw Natio intervened. In the end, Mason did end up with the Buckleys. Why - because the Indian Child Welfare Act allows the courts wiggle room if it's judged to be in the child's best interest. And in this case, the lateness of the intervention plus Mason's long relationship with the only family he'd ever really known decided it for the Buckleys. But this outcome was an exception. Most of the time, the law means Native American children are adopted by other tribal members or other Indians.
JULI SKINNER: There's a difference between being raised in your culture and then having to learn about it later. You lose the protective factor, the part that grounds you as a person when you have to learn about it through a book than if you have been raised that way.
GOODWYN: Juli Skinner is a Ponca Indian who was taken from her alcoholic parents as an infant and who then bounced around the Oklahoma foster system for years. Finally her extended family - her father's cousins - used the Indian Child Welfare Act to gain custody of her. And so she grew up a Ponca. Now 41, Skinner gets emotional when she contemplates how the life she knows and loves likely never would have happened without that law.
SKINNER: I think about what would happen if I hadn't been - sorry. Yeah, I would not have had - I would not be who I am. I feel like I owe everything to having my race, my culture, my - our belief system, our - the spirituality of my tribe has been ingrained in everything I do.
GOODWYN: Is the Indian Child Welfare Act an unfair racial preference or a legal acknowledgement that Indians have citizenship rights as both Americans and members of their sovereign tribes? For now the law remains in effect. Earlier this month, the 5th Circuit Court of Appeals stayed Judge Reed O'Connor's ruling while it takes up the case. Wade Goodwyn, NPR News, Tahlequah, Okla.
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