There’s a powerful dog whistle attacking American Indian families and tribes who assert their rights to keep Native children with Native families under the Indian Child Welfare Act (ICWA). Increasingly, foster and adoptive parents are fighting those families and tribes who seek to reunite with their children by claiming to be “the only family the child has ever known.” It was the racism in the child welfare system against Indian families that initially compelled Congress to establish ICWA in 1978. Now, as America continues to grapple with its racist history and systems of white supremacy, it’s time for courts to see through racist dog whistles and prioritize families of color.
Now, as America continues to grapple with its racist history and systems of white supremacy, it’s time for courts to see through racist dog whistles and prioritize families of color.
The phrase “only family the child has known” was once deployed to defend Indian families. Now, however, it has been weaponized, becoming a commonplace argument used by non-Indian families in court and the media. It’s an effective rhetorical tool that too often enables judges and other decision-makers to disregard and undermine the law.
Most recently, it was used in Brackeen v. Zinke (now on appeal as Brackeen v.Bernhardt), the only federal court decision that currently holds the Indian Child Welfare Act to be unconstitutional. In that case, the court opened its lengthy opinion by attacking ICWA and invoking the “only family” argument, centering the emotional narrative of the non-Indian family: “Because of (ICWA), these three children have been threatened with removal from, in some cases, the only family they know, to be placed in another state with strangers.”
Years ago, commentators and journalists invoked the “only family” argument in sympathy for Indian families. In the New Yorker in 1976, Calvin Trillin delved into the complicated matter of a Navajo family’s effort to stop the adoption of one of their children to a white evangelical family, writing that the child had been “snatched abruptly from the only family he had ever known and given to strangers.” This was the genesis of the Indian Child Welfare Act: to keep Native children with their families after decades of removal by states and churches to non-Indian families.
Private and religious adoption agencies, the primary opponents to ICWA’s passage, seized on the “only family” argument soon thereafter and reversed the narrative, supported by news media that glossed over the views of Indian people. By the early 1980s, media accounts were describing the non-Indian adoptive families as the “only family.” That claim now dominates the playbook of anti-tribal sovereignty groups. Today, briefs filed in federal and state courts seeking to reverse decisions under ICWA are riddled with the phrase. News reports sympathetic to foster and adoptive families routinely invoke the “only family” argument, but never in order to favor Indian families or tribes.
Worse, the conservative wing of the U.S. Supreme Court wholeheartedly adopted the phrase — and the racial connotations that came with it. Take the infamous and tragic case of Adoptive Couple v. Baby Girl, also known as the Baby V. case. The opening line of that opinion, a juxtaposition of the “only family” argument with a description of the Indian child’s racial characteristics, is the epitome of a racist dog whistle, relying on settler colonial concepts of blood quantum to minimize her Indigenous identity: “This case is about a little girl … who is classified as an Indian because she is 1.2% (3/256) Cherokee. (The) Indian Child Welfare Act of 1978 required her to be taken, at the age of 27 months, from the only parents she had ever known and handed over to her biological father.”
In this case, a Cherokee biological father sought to undo the adoption of his child. The father had allegedly consented to give up his parental rights by text rather than in open court before a judge, as is required by ICWA. The child lived with the adoptive couple, who are white, while the father was on active military duty overseas, and while he and the adoptive couple litigated in South Carolina family court. The father prevailed, and Baby V. was returned to her biological family at the end of 2011. She lived with her father for two years, the first year while the case was pending in the state supreme court (where the father prevailed again), the second year while the case was pending in the Supreme Court (where the father lost). But while the child lived with her father and her Cherokee relatives, the adoptive couple and their supporters appeared on popular cable TV shows like Anderson Cooper 360 and Dr. Phil, continuously invoking the “only family” argument and self-righteously destroying the little girl’s right to privacy.
Prominent Supreme Court practitioners Lisa Blatt and Paul Clement, go-to litigators for those opposing tribal nations, heaped scorn on the biological father, the Cherokee Nation and ICWA by insisting that the adoptive couple was the “only family” and “only home” Baby V. had known. It was as if the Indian child had never lived with her biological father at all — indeed, it was as if the Cherokee family was not even a family. The “only family” that mattered in Adoptive Couple was the non-Indian family; the child’s actual biological relatives were cast as strangers, foreigners.
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In the end, Blatt and Clement pushed the right buttons. Supreme Court Justice Samuel Alito’s opinion brutally devalued and dehumanized the Cherokee family. His written opinion makes no reference to the biological father’s military service, his relationship with Baby V. — even his name. South Carolina courts found that the adoptive family went to great lengths to keep the child, even falsifying the biological father’s birth date and misspelling his name in order to delay the Cherokee Nation’s appearance in the case. It worked. Alito’s opinion doesn’t mention any of this. In the end, Baby V. remains physically separated from her Cherokee family. In the end, it was the non-Indian adoptive couple whose pain was validated by the courts, and they became the “only family” that mattered.
Matthew L.M. Fletcher is professor of law at Michigan State University College of Law and director of the Indigenous Law and Policy Center. He is a member of the Grand Traverse Band of Ottawa and Chippewa Indians. Find his writing on Turtle Talk. Email High Country News at editor@hcn.org or submit a letter to the editor.
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