Kristen Carpenter has published “Indian Status Is Not Racial: Understanding ICWA as a Matter of Law and Practice” as part of the CATO Unbound series on the Indian Child Welfare Act.
On August 31, 2013, a little girl clad in a purple shawl, holding the hands of her father and stepmother, skipped into the grand entry of the Cherokee Nation’s annual powwow. An honored participant, the little girl followed in the steps of the Nation’s principal chief and first lady, and behind them a long line of Cherokees wearing U.S. military uniforms, tear dresses and ribbon shirts, buckskin, and jingle dresses fell into the circle. In brush arbors and bleachers, spectators visited with friends and relatives, and even deeper outside, the thick dark northeastern Oklahoma night, full and bright with crickets, stars, and spirits. At the very center of it all, the little girl smiled in the embrace of her Cherokee people. She danced in the heart of their landscape and in the landscape of their hearts.
Then the drum stopped, cameras flashed, and the little girl was whisked away to a tribal safe house. A contentious legal battle was being waged over her future, and there had been threats against her and her family. Beauty in a fade, to quote the immortal John Trudell.
Within weeks, the little girl, clutching a teddy bear, would be strapped into a car seat, and driven a thousand miles away from her family and home. The Supreme Court ruled the Indian Child Welfare Act did not apply, that her dad – her own loving biological Cherokee dad who had just served a tour of duty in Iraq and was adjudicated “fit” for parenthood – didn’t have a case for custody. As a result, the little girl, like generations of Indian children before her, was taken from her Indian family. Taken away from her sister, cousins, grandparents and great-grandparents, away from her princess toys and pet geese, away from shell-shaker lessons and stomp grounds – to wake up and begin her life anew in a different home, with non-Indian adoptive parents. Across Indian Country, people prayed that she would survive this experience and promised to be there one day when hopefully she would return.