By 1980, the work of Indian women and other anti-sterilization abuse activists,
predominantly women of color, resulted in awareness about the connection between race, class, and coerced sterilization as well as the more rigorous HEW guidelines that helped stop the practice. At the same time, the Indian Child Welfare Act endeavored to keep control of Indian child welfare in the hands of the tribes and Indian children in their communities. Threats to Indian women’s reproductive freedom and Indian child welfare, however, did not disappear with the Department of Health, Education, and Welfare’s sterilization regulations and the federal government’s ICWA. The ideological issues that Indian women confronted assumed different guises.
Indian activist and academic Andrea Smith has argued that the threat of coerced sterilization for Indian women may be over, but other forms of reproductive coercion are not.1 Prior to the approval of Depo Provera in 1992 for use in the United States, the Indian Health Service gave the hormonal birth control agent to Indian women. IHS official, Burton Attico of Phoenix, admitted that the IHS gave Depo Provera to women without informed consent and that the drug was a seen as a “side benefit” for patients with disabilities because it prevented them from getting pregnant and having menstrual
1
Smith, Andrea, Conquest: Sexual Violence and American Indian Genocide (Boston: South End Press, 2005), 88.
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periods.2 While working with Indian women in Chicago, Smith learned that welfare and IHS workers often coerced Indian women to take Norplant, another form of hormonal birth control, but failed to inform them of the drug’s side effects.3 In both cases, the IHS used deception and coercion to arrest the fertility of Indian women and knowingly prescribed drugs with both unknown and potentially life-threatening side effects.
Execution of the Indian Child Welfare Act has not been without setbacks. In 1982, for example, a white couple successfully adopted five year-old Navajo Jeremiah Holloway, despite the provisions of ICWA that make Indian-white adoptive placements a last resort. Holloway was born to teen-aged Cecilia Saunders in 1977 and raised in accordance with traditional Navajo practices by his mother, grandparents, and aunts for the first three years of his life. One of his aunts, Polly Ann Kirk, a graduate of the LDS Indian Student Placement Service and devout Mormon, expressed concern about the care Holloway received in this arrangement. She pressured Saunders to relinquish her child to a white Mormon couple unable to have biological children themselves. The adoption proceeded privately, without notifying the tribe. Two years later, however, Saunders regretted the decision and took legal action to retrieve her son. Ultimately, Navajo Tribal Judge Calvin Yazzie found in favor of the white adoptive parents, giving Saunders visitation rights but declaring Holloway (renamed by his adoptive parents Michael Carter) the “permanent ward of his white adoptive parents, Dan and Patricia Carter.”4
2
Ibid., 92. See also: Lin Krust and Charon Assetoyer, A Study in the Use of Depo-Provera and Norplant by the Indian Health Services (Lake Andes, South Dakota: Native American Women’s Health Education Resource Center, 1993).
3
Smith, Conquest, 98.
4
T.R. Reid, “Navajo Boy Case: Mormon-Navajo Adoption Fight Settled; White Couple Keeps Indian Child; Biological Mother Retains Rights” in The Washington Post (October 30, 1987), A03.
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The Holloway case raised several interesting issues. First, it demonstrated that post-ICWA adoptive placements can circumvent the transfer provision of the act that sends these cases to tribal court and the conditions that govern Indian child adoptions in state courts. Although the case ultimately went to tribal court, it did not start there, and as a result Holloway had lived as the Carter’s son for two years. This circumstance led Judge Yazzie to find that the best interest of the child mandated that he remain in his adoptive situation. Second, the details of the case provide a chilling example of the very things ICWA endeavored to eradicate: a white couple gained custody of an Indian child, renamedhim at three years of age, and raised him in a non-Native cultural context.
Moreover, state courts have not embraced the spirit of ICWA, even when they seek to follow the letter of the law. When state courts interpret ICWA, they often have subverted the “collective rights protected by the act” in favor of the “American emphasis on individual rights.”5 According to one analysis, the “language of individual rights” is so pervasive in the mainstream culture that it dominates discussions of collective rights, such as those expressed by ICWA.6 Therefore, when Indian child welfare cases land in state courts, the law suffers from an interpretation that privileges the welfare of
individuals rather than that of the tribe.
The continued struggle for Indian women’s reproductive freedom and the
challenges of implementing ICWA do not diminish the successes Indian women achieved in the battle against coerced sterilization and Indian child adoption. Rather, it
demonstrates the salience of these issues and the sustained need to construct an Indian
5
Jill E. Adams, “The Indian Child Welfare Act of 1978: Protecting Tribal Interests in a Land of Individual Rights” in American Indian Law Review, Vol. 19, No. 2 (1994): 301-351, 303.
6
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women’s feminism with sovereignty at its core. Indian women continue to embrace a Native feminism that “extends beyond pro-choice and pro-life” and addresses basic issues of self-determination for both Indian women and their tribes.7 This creates an Indian women’s political agenda that revolves around issues of sovereignty and takes into consideration both white constructs of feminism and aspects of Native sexism.8 Through this understanding, Indian women define feminism for themselves and address the political issues they think relevant. As one Indian woman commented, identifying feminism as white women’s prerogative
“Presumes that Native women weren’t active in shaping our identity before white women came along. And that abusive male behavior is somehow traditional, and it’s absolutely not. … That is a claim against sovereignty. I think that’s a claim against Native peoples. I think it’s an utter act of racism and white supremacy. And I do think it’s important that we say we are feminists without apology.”9
The Sacred Circle, a National American Indian Resource Center for Domestic and Sexual Violence in South Dakota, argues that “sovereign women strengthen sovereign nations.” Their publication of the same title, defines tribal sovereignty as the “inherent right” of “all tribal nations” to self-governance over their land base, resources, economic system, and people. As a corollary, Indian women demand control over their bodies, labor, and identities.10 The familiar Cheyenne proverb applies: “A nation is not
7
Andrea Smith, “Beyond Pro-Choice Versus Pro-Life,” 120.
8
Andrea Smith, “Native American Feminism, Sovereignty, and Social Change” Feminist Studies 31.1 (Spring 2005): 116-32, 2.
9
Ibid., 3.
10
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conquered until the hearts of its women are on the ground.”11 Despite the vestiges of colonialism, the challenges of poverty, and the pervasiveness of paternalism, neither Indian women, nor tribal sovereignty, have been conquered.
11
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