The Supreme Court, in Haagland v. Brackeen, recently upheld the Indian Child Welfare Act (ICWA), which helps to keep adopted Indigenous American children with members of their extended family, tribe, or other Indigenous families. On this week’s episode of Now & Then, “The American Nation and Indigenous Nations: Sovereignty & Struggle,” Heather Cox Richardson and Joanne Freeman placed the ruling in context with other struggles for Indigenous American sovereignty, from Tenskwatawa’s pan-Indian movement of the early 1800s to the formation of the American Indian Movement in 1960s Minneapolis. The original 1970s struggle for the ICWA marks another moment of intense debate over the legal and cultural independence of Indigenous Americans.
The Senate sponsor of the ICWA was Democratic South Dakota Senator James Abourezk, who was born and raised during the Great Depression in the towns of Wood and Mission on South Dakota’s Rosebud Sioux Indian Reservation. His father, who had emigrated from Lebanon in 1898, ran two stores in the small reservation towns.
In his 1989 memoir, Advise and Dissent: Memoirs of an Ex-Senator, Abourezk reflected on the difficult living conditions faced by Indigenous Americans on the reservation: “At best, Indian homes were plain small shacks, made from either logs or sheets of tin. At worst, they were white canvas tents that simply could not keep out the bitter winter cold.”
Abourezk also revealed his own lingering shame for the casual racism he had shown toward the Indigenous Americans. “I grew up believing it was permissible, even heroic, to ridicule the Indians of Wood,” he admitted.
As Abourezk grew up, however, he began to see more clearly the injustices that his Indigenous neighbors faced. He mulled their plight as he went on a winding road toward the Senate. He paid his way through an engineering degree at the South Dakota School of Mines by teaching judo, dealing blackjack, and becoming a much-beloved bartender at an American Legion club.
Abourezk eventually returned to school for a law degree and became an attorney in Rapid City, South Dakota. He increasingly took on cases involving police abuse toward Indigenous Americans, including investigating jailhouse deaths.
By 1970 Abourezk had become a legal force in the city. He was elected to the House of Representatives, and then to the Senate two years later. There were no Indigenous American Senators, and Abourezk, by dint of both his upbringing and his advocacy, immediately was made Chairman of the Senate Interior Committee’s Indian Affairs Subcommittee.
Just over a month after he took office, on February 28th, 1973, a group of armed American Indian Movement activists took over South Dakota’s Wounded Knee Reservation – the site of the infamous 1890 massacre of Lakota people by U.S. troops. A 71-day standoff followed, during which a thousand federal agents laid siege to the reservation and fatally shot two activists.
Abourezk, alongside fellow South Dakota Senator and 1972 Democratic presidential nominee George McGovern, headed to Wounded Knee during the occupation and helped to negotiate the release of hostages in the increasingly-violent incident.
After the dust settled, Abourezk, rather than condemning the occupiers like many of his Senate colleagues, viewed Wounded Knee as a wake-up call. “The best thing about Wounded Knee was that people saw the despair, the way the Indian people feel up against the wall,” Abourezk told the Washington Post in July 1973.
Abourezk quickly became a force for Indigenous American protections in Congress. He began planning a new congressional policy group called the American Indian Policy Review Commission, which aimed to conduct a wholesale review of federal policy toward Indigenous Americans.
Abourezk was particularly focused on children. In the mid-1970s, Indigenous youth were placed by state courts and social services bureaus – often working with the approval and assistance of the Bureau of Indian Affairs – into adoption or foster care at a rate of 20 times that of non-Indigenous children. Between 25% and 35% of all Indigenous American children were not with their birth parents, and 90% of those children were placed with non-Indigenous families.
In April 1974, Abourezk hosted his first set of hearings about the conditions surrounding Indigenous American adoptions. Over the course of two days, Abourezk heard from over 20 lawyers, parents, and activists about a system that was revealed to be highly arbitrary and often downright biased toward non-Indigenous adoption placements.
Cheryl DeCoteau, a 23-year-old mother of three from Sisseton, South Dakota, told how social workers pressured her constantly to give up her children. “The man said that I wasn’t a very good mother and everything, and that my children were better off being in a white home where they were adopted out,” she explained. “They could buy all this stuff that I couldn’t give them, and give them all the love that I couldn’t give them,” she claimed the social worker told her.
Another mother, Margaret Townsend from Fallon, Nevada, told the Committee about a series of brutal encounters she had with police officers. She told stories of being physically assaulted by officers after they accused her of drunk driving. She recounted that a juvenile probation officer associated with the police department had effectively forced her to place her children in foster care. “The chief of police told me that he was going to make it hard for me to get my children,” she claimed.
Townsend’s nine-year-old daughter, Anna, testified that the foster parents, the Kellys, had abused her 20-month-old brother. “My brother, he was mistreated by Mr. Kelly,” the child told the committee. “He slapped him and he smoked right in his face and puffed right in his face.”
Abourezk summed up the takeaways from the wrenching testimony: “Welfare workers and social workers who are handling child welfare caseloads use any means available, whether legal or illegal, coercive or cajoling or whatever, to get the children away from mothers they think are not fit.”
Abourezk’s efforts, in conjunction with legislative drafting work by the Association of American Indian Affairs and other advocacy groups, slowly morphed into the The Indian Child Welfare Act (ICWA). The ICWA, in brief, gave tribal courts, rather than state governments and their agencies, jurisdiction over deciding Indigenous American adoption cases. The Act also granted the federal government power to enforce a tiered system of preference – family, tribe, and other Indigenous tribes – for placing children.
In 1977, Abourezk chaired another hearing on the proposed Act. Here, he was more forceful in his characterization of the placement problem. “It has been called a cultural genocide,” he said in his opening statement.
A major sticking point in ICWA negotiations concerned the central role of Mormons in the Indigenous adoption system. Many members of the Church of Jesus Christ of Latter-Day Saints believed that Indigenous Americans were descendants of one of their prophets, named Laman, and that it was their duty to try to convert Indigenous Americans to Mormonism. The Church in the early 1950s had launched the Indian Student Placement Program, which had placed some 25,000 Indigenous children with Mormon foster parents for the duration of the school year by the early 1970s. The Church, unsurprisingly, lobbied heavily against the bill.
The ICWA also came at a moment of particular congressional backlash against Indigenous Americans. A coalition of Western legislators and ranchers were working in the late 1970s to undo treaties between the U.S government and Indigenous tribes to gain access to natural resources on tribal lands. In early 1978, this coalition managed to kill the ICWA in the House of Representatives, arguing in part that tribal courts did not have requisite jurisdiction or organization to oversee the new system.
In Fall 1978, however, Abourezk, having found a close House collaborator in Democratic Arizona Representative Morris Udall, managed to push the ICWA through. President Carter signed the bill in November 1978.
Thelma Stiffarm, a lawyer with the Native American Rights Fund, rebutted the anti-ICWA’s arguments in the New York Times shortly after Carter’s signing: “If anybody is worried about whether tribal judges can handle such cases, their fear is unfounded. I’ve worked with tribal courts and Indian judges and I find them better trained than many Anglo judges.”
By the time the ICWA was in place, Abourezk was on his way out. He was tired of the controversy engendered by his passionate and often-lone stands, from Indigenous rights, to his vocal criticism of Israel, to his candor with Cuba’s Fidel Castro.
In late 1978, Abourezk, an avid guitarist, led, appropriately, a sing-along to Pete Seeger’s “This Land is Your Land” with Agriculture Secretary Bob Bergland and Senator Edward Kennedy at his own farewell party.
Of his advocacy for Indigenous Americans, Abourezk reflected in his memoir, “I think that the Indian Child Welfare Act was perhaps the most far-reaching bill that we passed.”
Abourezk died this February at 92. Now, the Supreme Court has upheld the landmark legislation for which he – and Indigenous Americans across the nation – labored tirelessly.
For more on how Indigenous Americans partnered with legislators to protect their sovereignty in the second half of the 20th century, read Charles F. Wilkinson’s 2005 Blood Struggle: The Rise of Modern Indian Nations.
And head to the Twitter account of Now & Then Editorial Producer David Kurlander for supplemental archival threads on each Time Machine piece: @DavidKurlander.
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