Native American Women Are the Canaries in the Coal Mines

From the Series: After Roe

Bans Off Our Bodies NYC. May 14, 2022. Photo by Rhododendrites, CC BY-SA 4.0.

The last week of June—after the overturn of Roe v. Wade—as I sat in my employer-mandated active shooter training, it was explained to me how I could fight for my life as a last resort. First you should run, then hide. Only after all options are gone, and were you faced with a life-or-death situation, should you fight. This is the America we live in now. We are all just constantly against one life-threatening situation or another. Some say this should not have come as a surprise. Yet, each blow is impactful.

As a Native American woman, my third-most likely cause of death will be murder. Let’s be clear, this statistic is pre-repeal Roe v. Wade. (Pre-post Roe?) Native American women have long suffered from the affliction of early death and are the most likely demographic to suffer sexual violence, human trafficking, kidnapping, or just plain fall victim to homicide. In a country where a Native American woman is ten times more likely than others to be murdered, please add to that an abysmal maternity mortality rate. In 2020, after the beginning of the COVID-19 pandemic, maternal deaths in the United States rose by 33.3 percent. Late maternal deaths (between 42 and 365 days after delivery) rose by 41 percent. And those numbers are about to skyrocket.

But I want to talk about another issue of focus since the overturn of Roe, which is the number of children available for adoption. In case you missed it, that number is just over 400,000. So why the clamor for adoptable children? With 400,000 available now, how can supply be failing demand? Well, in 2019, 1 in 6 couples looking to conceive were diagnosed as infertile. Today, the CDC publishes that statistic at 1 in 5.

As of last year, of the four million babies born every year in the United States, only about 18,000 are voluntarily relinquished for adoption. It’s hard for me to write that. Only 18,000. Yet, since the 1973 ruling of Roe v. Wade, the number of unmarried women who relinquish their infants has declined from 9 percent to less than 1 percent. What about those 400,000 available children in foster care, you ask? Adoptive parents really prefer babies. In fact, it’s a classification readily available right on the application: AYAP. As Young as Possible. Babies who aren’t adopted out immediately are usually born with severe disabilities or are part of a sibling group that’s trying to be kept together.

So here’s the picture so far: we have fewer babies than ever, we have more infertility than ever, and we only want babies. What is a nation to do?

I’ll remind you that the US government has a long history of stealing Native American children and forcibly sterilizing Native American women without their consent. It’s been incorrectly taught that Indian Boarding Schools are a now-irrelevant part of American History. The truth is, Native American children were allowed to be raised by their parents for the first time only when another historic Congressional Act of the 1970s was created: The Indian Child Welfare Act (ICWA).

Many Indian Boarding Schools were closed in the 1980s and 1990s, but others continued on under different names. (The bodies are still there, mostly in unmarked graves.) Closing the schools was too little too late. The framework was already in place to continue the legacy. Churches near Native territories began receiving federal funding for referring children into the foster care system. If you're paying attention, this is where you might start to recognize our current political climate. I’m referring, of course, to the abortion bounty laws Texas enacted in 2021.

Private adoptions cost applicants anywhere from $15,000 to $50,000, depending on the state, the child, the adoption agency, and the attorney. Because adoption agencies are private, much of their data are unavailable to the public; however, let’s just say it’s not inconvenient for private adoption attorneys to work closely with agencies in states with larger Native American populations. For infertile couples that don’t have that kind of cash to drop on “completing their family,” the foster-to-adopt system is highly encouraged. And Alaska Indian/American Native (AI/AN) children are overrepresented in foster care at a rate of 2.7 percent greater than their proportion in the general population.[1]

Disadvantages to this system include longer wait times and, well, lawsuits. The main goal of the foster system is not—and never has been—to adopt out children. The goal is family reunification. This isn’t always the case, as guardians ad lietum are appointed to advocate for the child’s best interest, and that’s not always with the birth parents. However, in cases when a child is placed in a household and then the foster parents are informed the child can go home, the result is usually anger at the system, usually from those foster parents disguised as advocates for the child.

So here we are. Native American women are already struggling under systems of violence against them and their children, literally fighting for their right just to stay alive. Now there is a new threat facing us and it is right around the corner.

Besides finally allowing Native American children to be raised by their parents, the ICWA initiated other important things. Native American children who have been forcibly removed from their homes are now governed by it. It establishes a system of priority. A child must go first to a family member, second to a member of their tribe, and then to other Native American families of any tribe. This is because the law recognizes that the most important thing is to save Native American families first, and failing that, to preserve the culture for the child.

Besides mandated placement, there are dozens of procedural protections in place ensuring that when any Native American is placed into the foster system, removed from a home, or is the subject of an adoption petition, their tribe is notified. This gives the tribe an opportunity to ask for periodic reporting on the conditions inside the home of the guardian where the child is placed. This also gives the tribe the opportunity to find family members with whom the child can be placed. In my experience, personal and professional, there is almost never a family member that doesn’t want the child. Native American children have not ended up in these systems because they are not wanted. They are always wanted. Sometimes, they are wanted too badly by too many parties.

Which brings us to the Brackeens. The federal case Haaland v. Brackeen can undo the last fifty years of protections for Native American children under ICWA and so much more. The Brackeens are a white family from Texas who wanted to adopt a Navajo child who was temporarily placed with them through the foster care system. When they were told that the law prevented them from adopting and that they would need to surrender the child, they sued. Millions of dollars and countless resources went into getting this case to the Supreme Court. For that story, please listen to Rebecca Nagle’s podcast, This Land.

My point is that the case is now scheduled to be heard by the Supreme Court. The threat to our families, our sovereign right to raise our children, and the feeling that our bodies are not safe are all familiar. But there is a larger looming threat if this next case is overturned. Native American territories are sovereign governments. The Brackeen case didn’t make it to the Supreme Court because of the children. Like the overturn of Roe v. Wade, this was never about the children. The case has made it this far because the argument is being made that the ICWA is not based on our political status as sovereigns but based on our race. Which would be preferential treatment. If it succeeds, the work has already been done to undo the Indian Gaming Act as well, which could result in a loss of $30 billion per year for tribes.

With just one of these cases, Native Americans can lose their sovereign status and their right to self-govern. What would be the advantage of that? For starters, Native American lands make up 2 percent of the country but hold a third of its fossil fuel resources. That is $1.5 trillion in resources. Remember the Dakota Access Pipeline? It was a wake-up call for lawmakers. Imagine that again, but everywhere.

So, I’d like to take you back to that moment when you first heard Roe v. Wade was overturned. Remember the surprise, shock, and devastation. That feeling of having the carpet pulled out from under you is coming again, unless we start paying attention and fighting back. I am a Native American woman in the United States, and I am terrified. You should be, too.


[1] Among households where suspected abuse is reported, one with AI/AN children is twice as likely to be investigated, twice as likely to have allegations of abuse substantiated, and Native American women are four times more likely than non-Natives to have their children taken away and placed into foster care, and yet tribes are only actively involved in forty percent of those cases. In Montana, Native American children make up 30 percent of the state’s out-of-home care cases. In Oklahoma, the state estimates that 35 percent of the children in foster care are Native American, yet Native Americans make up only 9 percent of the state’s population.