A Win for Religious Liberty? Child Removal, Religious Conversion, and the 2023 Supreme Court Decision Upholding the Indian Child Welfare Act in Brackeen v. Haaland
Students at Carlisle Indian School outside the Young Men’s Christian Association (YMCA) building, 1892. Photo by House Divided Project, courtesy of the Smithsonian Institution.
Celebrated as a victory for tribal sovereignty in the United States, the Supreme Court’s June 2023 ruling in Brackeen v. Haaland upheld the Indian Child Welfare Act of 1978 (ICWA). Brackeen’s plaintiffs unsuccessfully sought to undermine the constitutionality of ICWA, an important law created to protect Native American children and families in response to U.S. assimilation policies that forced Native children into boarding schools and later foster care. ICWA legislation prioritizes extended family and fellow tribe members as prospective guardians in the adoption proceedings of Indigenous children, thus safeguarding against historic family separation.
Beyond the clear benefits of ICWA for governing adoption courts, the act’s preservation is also relevant in the context of the close relationship between Indigenous cultural and religious traditions and tribal sovereignty. The dark history of boarding schools and adoption projects in the U.S. is often overlooked, and the fact that many of these policies were rooted in questions of religion is seldom discussed. Indigenous child removal was historically tied to conversion to Christianity, as a means to “civilize” Native Americans. In this context, ICWA’s preservation in Brackeen can also be viewed as a victory for the rights of Indigenous children—giving them the capability to heal from the trauma of acculturation through enculturation, and the freedom to participate in the religious and cultural lives of their respective tribal nations.
Child Removal and Religious Conversion: The Boarding School Era
Congress passed ICWA in 1978 after discovering that, as late as the 1970s, 25% to 35% of Native children were still living apart from their birth families—either in institutions or foster care programs, or as the adopted children of non-Native families. How did this happen?
Historically, the U.S. government collaborated with Christian missionaries to assimilate Native children into “civilized” American culture. The government institutionalized this policy in the form of federally funded, off-reservation boarding schools targeting Native children, who were presumed more malleable than adults to embrace “civilized” ways. The founder of the first off-reservation boarding school, the Carlisle Indian School, was Richard Henry Pratt. Pratt famously described the school’s project to: “kill the Indian in him and save the man.” Boarding schools separated children from their families based on the principle that to “save” the human, one had to eradicate all that is culturally, religiously, and racially Native. For the American public and for teachers at boarding schools, to civilize Native Americans meant fulfilling Western religious ideals of personal progress. At the time, civilization was the “divine mission” of the U.S. defined broadly and implemented by boarding school staff as the movement toward Christian notions of morality and family values.
Boarding schools systematically erased Native American religious practices and actively converted Native children to Christianity, in large part by keeping Native children separated from their families for years. Attendance at boarding schools was compulsory and children were largely prohibited from engaging in Native religious practices or from keeping traditional religious or ceremonial items with them in the dorms. Native children living in boarding schools could not access annual tribal ceremonies and were thereby separated from the religious and cultural experiences important to their Native nations, forcibly creating a cultural divide between Native children and their families. Boarding schools taught English using Christian hymns and Bible stories, and students at many schools were expected to attend daily worship services and religious instruction. Schools celebrated students who formally converted to Christianity, asserting a powerful narrative about whose culture mattered.
Native Religious and Cultural Erasure: Foster and Adoptive Care
Conversion and the removal of Native children from their families did not end with boarding schools. The schools were followed by a new era of Native family separation which has continued through to the present: foster care and adoption. The transition from boarding schools to the “adoption era” can best be understood through the ethos of Pratt’s “outing” system, a program initially implemented at Carlisle to further the boarding school experience. Rather than send students home between school years and risk “cultural backsliding,” Pratt mandated that many students live with white, Christian families during the summers. Students would work domestically and on family farms in exchange for minimal wages, and most valuable to Pratt, gain exposure to “civilized” family values. Pratt soon expanded the outing system, assigning students to live with non-Native families for a school year at a time and thereafter enrolling students in the families’ local public schools. Pratt aspired to disperse the entire population of Native children nationwide by placing children into white homes in a one-to-one ratio. The permanent separation of Native children from their families, he believed, would fix the problem of assimilation once and for all.
When reports in the late 1920s exposed the terrible living conditions at off-reservation boarding schools to the public, the schools lost government funding and most closed by the 1930s. Yet social services at the state level took over Pratt’s ideology—local governments did not return many Native students to their parents when boarding schools closed, but rather placed them in adoptive or foster care with non-Native parents and enrolled them directly into public schools. This made the outing system model permanent and created, in effect, a boarding school to “ward of the state” pipeline. However, the adoption industry’s racial matching practices at that time stalled interracial adoptions; racial roadblocks rendered Native children initially ineligible for adoption by white families. To overcome these administrative and legal barriers, the Bureau of Indian Affairs collaborated with the U.S. Children’s Bureau in 1958 to create the Indian Adoption Project (IAP) managed by a private nonprofit, the Child Welfare League of America.
The IAP removed transracial adoption obstacles in order to allow white families to adopt Native children. Like the outing system, the IAP assimilated Native children into the dominant white, Christian society, severing connections between children and their tribal customs and religions. The government justified this with the racist idea that Native parents were unfit to raise their children because of high poverty rates on reservations. This also reflects a devaluation of Native cultural traditions and family life; the government considered losing one’s tribal culture a small price to pay in exchange for life in an affluent household with a “civilized” family. Until Congress passed ICWA in 1978, foster care and adoptions had displaced 25% to 30% of all Native children, 90% of whom were placed into non-Native homes.
Tracing a throughline from boarding schools to the outing system to the IAP reveals that a civilizing mission motivated Native child removal for at least a century, rooted in the belief that Native parents were incapable of rearing Native children according to the standards of “civilized” society. The civilizing mission entrusted to boarding schools would thereafter be the responsibility of individual foster and adoptive families, not unlike the lead plaintiffs in Brackeen.
While the outing system and subsequent adoption projects did not target and ban Native religious practices and encourage active conversion to Christianity with the same systematic energy as boarding schools, the impact was similar: Native children were adopted out of their families and thereby lost the freedom to participate in Native cultural and religious traditions.
The Significance of Native American Religious Traditions
In the context of ICWA, why does it matter whether or not Native children can choose to access their tribe’s religious traditions? ICWA seeks to place Native children in “foster or adoptive homes which will reflect the unique values of Indian culture.” For many Indigenous communities, religious and cultural practices are intertwined. Renowned Standing Rock Sioux scholar Vine Deloria Jr. emphasizes that religion structures all aspects of tribal life and community and that religious practice is deeply tied to tribal sovereignty. Deloria writes, “[religion is] a covenant between a particular god and a particular community… There is no salvation in tribal religions apart from the continuance of the tribe itself.” In other words, to invoke Native American religions is to invoke what it means to be part of a specific tribal community. Religious autonomy is thus crucially important for the autonomy of Native American nations. ICWA’s placement preferences preserve Native American familial relationships, maintaining children’s ability to access religious practices of their Indigenous nation if they so choose.
ICWA supports the enculturation of Native American children by sustaining ties with Native religions. According to the National Indian Child Welfare Association, familiarity with tribal cultural practices benefits the mental health and psychological well-being of Native children throughout their lives. Indigenous peoples in the U.S. have endured colonization and cultural genocide, both traumatic experiences with vastly negative health impacts. According to analysis by scholar Mary Annette Pember, member of the Red Cliff Band of Wisconsin Ojibwe, “intergenerational trauma” occurs when trauma-affected genes are inherited by offspring, perpetuating negative outcomes including mental illness. Overcoming trauma rooted in acculturation requires participation in enculturation, that is, “helping Native youth to identify with their cultural background and feel pride in it.” Enculturation is linked with increased self-esteem and decreased mental illness. When Native children are adopted by non-Native parents, acculturation often continues because non-Native parents are less likely able to effectively transfer Native cultural knowledge or identity to Native children. For many Native peoples, participation in the cultural and religious practices of their tribe supports the process of healing from the trauma of acculturation.
Looking Forward: Brackeen in the Context of Legal Protections for Native Religious Practices
ICWA protects the ability of Native children to choose religious participation and connection with their tribal culture. This is significant in a U.S. legal context since the religious freedoms of Indigenous peoples have often been inadequately protected. Vine Deloria Jr. suggested that for Native communities, the survivance of tribal nations themselves is a collective religious matter— the religious rights of Indigenous peoples are therefore paramount.
Brackeen was heard by a conservative-majority U.S. Supreme Court, which has expanded the right to free exercise of religion—at least for certain beliefs and communities—and prioritized religious rights over other fundamental rights in recent years. Yet, the laws which govern the relationship between church and state were formulated with the protection of and from Protestant Christianity in mind, and thus have historically failed to address the religious needs of groups outside this paradigm, including Native Americans.
Largely ignorant of the principal role sacred lands and waters play in the diverse religious practices of Native nations, U.S. courts have repeatedly denied religious liberty claims seeking to protect sacred sites. Notably, in Lyng v. Northwest Indian Cemetery Protective Association in 1988, Navajo Nation v. U.S. Forest Service in 2008, and Standing Rock Sioux Tribe v. U.S. Army Corps of Engineers in 2017, courts ruled that “diminished spiritual fulfillment” resulting from restricted access to or defilement of sacred lands did not constitute a “substantial burden on religious exercise.” This demonstrates how Western conceptions of religion can undermine legal protections for non-Western religions, in these cases by delegitimizing Native “nature piety” as a form of “spiritual fulfillment” rather than a true religion. Among those directly impacted by these cases are the Yurok, Karuk, and Tolowa tribes who use Chimney Rock—land addressed in the Lyng case—for sacred ritual practices.
Nevertheless, despite the challenges faced when trying to claim religious violations in court under the Free Exercise Clause, Native American activists have found creative ways to seek legal protection for their ongoing religious traditions. These efforts have contributed to legislation including the American Indian Religious Freedom Act of 1978 (AIRFA) and its 1994 Peyote Amendment. This activism enables the consideration of ICWA through a wider lens in the context of religious freedom.
The Court’s ruling in Brackeen is a victory for tribal sovereignty. It is also a victory for Indigenous children, providing renewed access to choose participation in the cultural and religious traditions of their respective nations. In the unequal landscape of religious rights protections in the U.S., the upholding of ICWA is a small triumph for Indigenous traditions on the long road to creating substantive legal protections for Native religions and cultural practices.
Ana Eveleigh (BC ’24) is a staff writer for CPR majoring in religion and human rights. The research for this article was originally conducted with support from the Laidlaw Fellowship at Barnard College.