Contested Identities: The Adoption of American Indian Children and the Liberal State
| Date | 01 June 2000 |
| Author | M. M. Slaughter |
| Published date | 01 June 2000 |
| DOI | 10.1177/096466390000900203 |
| Subject Matter | Articles |
CONTESTED IDENTITIES:
THE ADOPTION OF AMERICAN
INDIAN CHILDREN AND THE
LIBERAL STATE
M. M. SLAUGHTER
University of Kent, UK
You who are Wise must know that different Nations have different Concep-
tions of things. (Franklin quoting the Iroquois Confederation, 1784/1794: 28–9)
ABSTRACT
The Indian Child Welfare Act gives the tribes the power to determine the placement
of Indian children. American Indian tribes are semi-sovereign entities which retain
the power to control their internal affairs and are not constrained by the Constitution.
In making child welfare determinations tribes engage in practices which in other cases
would be unconstitutional: they apply group rights to trump parental interests and
they determine tribal membership on the basis of criteria which are arguably racial.
The Act reveals the irresolvable conflict between tribal norms and concepts of iden-
tity and those found in American liberalism.
INTRODUCTION
DESPITE HUNDREDS OF years of attempted genocide – cultural
and otherwise – American Indian tribes survive. At the heart of their
survival are their children.1But just as the government removed
Indians from their aboriginal lands to settle them on reservations, so too it
removed their children to settle them in white America. In the 19th century
Indian children were forcibly sent to federal boarding schools where they
were taught the white man’s ways and, not coincidentally, rendered ill-
equipped to return to their tribes. In postwar America, measures were more
direct. State social services removed children from their tribes and fostered
or adopted them into white families. In order to stop this decimation, in 1978
SOCIAL &LEGAL STUDIES 0964 6639 (200006) 9:2 Copyright © 2000
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Congress passed the Indian Child Welfare Act, one of the most sweeping
statutes ever enacted in Indian law (ICWA 1994). This article examines one
particular aspect of the ICWA – the adoption of Indian children. It analyzes
the ways in which the tribal norms assumed by the ICWA conflict with those
which ground American (western) law.
The relation between America and Indian tribes has always been marked
by ambivalence. From the time of discovery, the uniqueness of tribes has been
recognized both negatively and (somewhat) positively. On the one hand,
Indians were considered to be savages who should be assimilated to the
norms of white civilization. On the other hand, tribes were functioning cul-
tural and political entities that had claims to independence (and for a time,
organized might). Subsequently, government policy has swung between
annihilating tribes and preserving them.
The unique place of tribes in the American political order is reflected in
their semi-sovereign constitutional status. Like the reservations, sovereignty
is a means of fencing off tribes from foreign intrusion. It defines a political
and legal space where Indian tribes can define their cultural destiny and main-
tain and reproduce their particularity. They fight vigorously to preserve it.
This scheme of dual sovereignty (tribal and American) means there are two
cultural, normative and legal orders within the nation. Conflict between them
is endemic.
The ICWA is a statute that comes down heavily on the side of respecting
Indian sovereignty. As such, it would seem to be a straightforward, welcome
measure and in most cases it is. However, the Act raises issues of identity that
are not always straightforward and these reveal just how deep the differences
between tribes and America can be. Indian concepts of identity conflict with
some of the most cherished principles of American liberalism. Not only do
tribes insist on non-liberal group norms, they challenge the very notion of
the western enlightenment subject. The ICWA and its treatment of Indian
children ultimately reveal that those western notions of the subject and of
identity are inadequate not only for understanding the concerns of the tribes,
but also for establishing legal and political structures that allow their values
to flourish. Ultimately, application of the ICWA reveals the ambivalence of
the liberal nation as it is called upon to tolerate what is by its definition
intolerable.
The problem (if such it is) begins with the Indian family. For the most part
the American vision of the family is a nuclear one. Children are seen as
‘belonging’ to their parents. For Indians, however, the primary family unit is
not the nuclear family but rather the extended family or clan. In Navajo
culture and tradition, for example, ‘children are not just children of parents
but they are children of the clan . . .’. A child is said to be born for his father’s
clan and members are expected to take care of each others’ children. In tribal
law the primary consideration is not the child’s relation to the parents but to
the clan. This means the child is seen as an organic part of the self-reinforc-
ing and self-protecting group (Atwood, 1989: 1058; Lacey, 1986).
The extended family or clan is not necessarily coextensive with the tribe
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