A Case Before the U.S. Supreme Court Could Surge the Psychiatric Labelling and Drugging of Native American Foster Youth

If the Brackeen v. Halland case currently challenging the Indian Child Welfare Act (ICWA) of 1978 before the U.S. Supreme Court is successful, Native children are more likely to be placed with non-Native foster parents, and from there, face a surge in psychiatric labeling and drugging.

Tribes across the U.S. are outraged by the attempt to dismantle ICWA, and a “think tank” was recently formed in California to respond to what seems a foundational threat to community sovereignty, beginning with who controls Native child welfare decisions. It’s the latest in a battle as old as the United States: White Christian evangelicals fighting for the right to take Native children away from family, tribe, and culture, and re-educate them, no matter the harms—and its outcome will determine whether more Native youth are exposed to psychiatric drugs.

Chad Brackeen and his wife, Jennifer, lead plaintiffs, are White, and according to a 2019 interview with The New York Times, also dedicated members of the fundamentalist Church of Christ, which they attend twice a week, and through which they first became inspired to adopt. They began as foster parents before successfully adopting a young Dine (Navajo) boy, and then mounting efforts to adopt his sister. They contend they are being racially discriminated against by ICWA’s mandates favoring a great aunt of both of these children, who has stepped forward from their tribal community seeking to adopt the sister.

The Fear

While working as a consulting psychologist in Indian Country, an elder Native friend laughed aloud recalling to me how his mother would “run everywhere, throwing our clothes and stuff in closets or under blankets anytime white people visited.” He was teaching me about a ubiquitous fear in North American tribal communities: having their children taken away.

For decades, there’s been a shortage of places for displaced American Indian and Alaskan Native (Native) children to grow up feeling safe and secure, and this places pressure on tribal communities and their child agencies to use non-Native foster placement resources. If successful, current efforts to dismantle ICWA before the Supreme Court will make it much easier for non-Native, usually white, parents to foster and adopt Native children without regard to their community of origin or its cultural survival.

The terror and mad rush of my elder friend’s mother has never entirely left Native America and are about to be reenergized.

But what about the contention that ICWA’s dismantling will also create a surge in Native foster youth being psychiatrically labeled and drugged? It’s frankly impossible to find adequate information bearing on this topic because the U.S. Indian Health Service (IHS), primary purveyor of behavioral health services in Indian Country, has never been accountable to publicly report prescription rates and the types of psychiatric drugs it dispenses.

Yet as I detail in my new book, Coyote’s Swing, IHS has for decades been very involved in psychiatric labeling and drugging. In 2013, for example, the agency attributed 850,000 of its outpatient visits and 5,000 of its inpatient stays to a “mental disorder.” And 10 percent of the services IHS provided that same year to children and young adults aged 5 to 24 years had “mental disorder” listed as the “primary reason.”

In the U.S. foster care system, exhibiting “behavioral problems” and being in need of “mental health treatment” is code for prescribing psychiatric drugs to sedate and “manage” these children. It is easy to become concerned when one learns that foster children and youth in the U.S. take psychiatric drugs at a rate two to three times higher than the general population.

Sadly, these statistics are provocative when considering that the 18-24 age range is highest for Native American suicide, which has been consistently the highest rate among all U.S. ethnicities. The Native suicide rate has only climbed over the decades since IHS’s “biomedical model” began emphasizing antidepressants as “suicide preventatives.”

Is there a relationship between the agency’s focus on these drugs, the now-established empirical finding of up to 2.5 greater risk of suicidal behavior among young adults taking them, and the chronic suicide tragedy in Indian Country?

Child abuse and neglect are tragic facets of Native experience tied to a unique intergenerational trajectory of colonial violence into communities. Researchers Amanda Lukens and colleagues at John Hopkins said in 2021: “Native North American communities have historically been oppressed in the U.S. and severely economically disadvantaged, increasing risk for child maltreatment.” Native child maltreatment represents a toxic intrusion, corrupting thousands of years of emphasis upon the sacredness of children. Native homes are an easy target of child welfare officials, one having a lengthy and sordid history in EuroAmerican society. The history of EuroAmerican culture in North America is rife with the theft of Native children and their childhoods and is both the root cause and effect behind today’s Native foster care system.

According to a recent joint report by Pro Publica and NBC News, 3.5 million homes are searched annually by state child welfare agencies investigating child maltreatment. Most searches happen without a warrant because caregivers may not know their rights or are intimidated by aggressive caseworkers pounding on their doors. Once inside, these workers may push their way into a caregiver’s kitchen, go through the refrigerator, sift through trash, and inspect bedrooms and bathrooms while trying to observe children present in the home. Only five percent of such coercive searches result in actual findings of child maltreatment.

The National Indian Child Welfare Association (NICWA) notes how racist bias against Native caregivers leads to allegations against them being investigated at twice the frequency of white caregivers, and Native children being placed into foster care at four times the rate of white children.

A research partnership report between NICWA and the Pew Charitable Trust in 2007 found that the majority of substantiated complaints (65 percent) against Native caregivers pertain to “neglect” – the highest neglect-to-abuse allegation ratio among all ethnicities studied—and offers further evidence as to why “American Indian/Alaskan Native children are overrepresented in the population of child maltreatment victims, at more than 1.6 times the expected level, with the highest rates of overrepresentation in states that have larger American Indian/Alaskan Native populations.”

Clearly, community poverty, oppression, and family upheaval go together in predisposing investigators as to where to focus their energies. While the need to protect children is indisputable, the result for Native caregivers and their families is more often fear and intimidation rather than gratitude for any lasting positive effect on their communities.

The Tyranny of Benevolence

Native American children possess a unique form of dual citizenship recognized at the federal level, that is, over and above state authority. These children are deemed U.S. citizens (since 1924), while simultaneously being citizens of sovereign tribal nations. This “sovereignty” of tribal nations is an old European concept enshrined within Article VI of the U.S. Constitution, which stipulates “all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land.”

Tribal sovereignty is tied to the treaties—which have been continuously broken or disregarded—but are still the sole legal basis in U.S. law by which the Original People of this land maintain their rightful existence, cultures, lands, and resources. Under this unique status and in combination with ICWA, tribal child welfare programs currently oversee the fostering and adoption of Native American children enrolled in these sovereign, federally-recognized tribal communities.

The “tyranny of benevolence,” a favorite phrase of one of my ancient graduate school mentors, applies to the tensions unfolding within the Brackeen v. Halland Supreme Court case. At issue is the question of whether ICWA’s mandates, which currently protect Native children from being raised away from their cultural community by “non-Indian” adoptive parents, are a form of racial discrimination against white people, violating their rights under the U.S. Constitution. Another issue is whether ICWA’s federal protections exceed Congress’s authority over child welfare as a “virtually exclusive province of the States.”

This, then, is a fight about the meaning of “racial discrimination,” its homogenization, and an old argument over federal vs. state control – not truly about the needs and welfare of Native children as one might suppose. This major case represents a long battle by a subsection of Christian evangelicals hoping to destroy ICWA by turning the law’s substance against itself. They are cut from the same cloth as ancestors who once forcibly removed Native children from their families and homes with impunity. At this moment, the Court appears closely divided on the issues.

In foster care terminology, the umbrage against ICWA is most intense regarding its mandates favoring Native “kinship care.” What is behind this new negativity about ICWA, which stood for decades as a model child protection law? In 2005, a Christian evangelical “gospel of orphan care” reemerged in the U.S., and this new focus against ICWA comes at a time conspicuously close to recent international adoption scandals that brought greater scrutiny to American missionaries by foreign governments from Haiti to Eastern Europe.

Cloaked within the Brackeen v. Halland plaintiff arguments lurks the same clutching energy that sought out destitute Haitian mothers and their starving children, hoping to create “orphans” wherever desperation provided opportunity. It has never been a movement seeking to enrich, heal, or reunite devastated families, but instead, one extending an old rationale from the “child snatching” of Native children of past eras into a contemporary motif: “we have a better place for you, and we are ready to take you in.”

With supreme irony, this predominantly white orphan gospel movement argues they should not be “racially” restricted from fostering and adopting children of a “race” their own ancestors named, deemed “inferior,” and then kidnapped. Yet the Original People of North America have never been a “race”—a “domination code” word outside their cultural way of knowing others in the world. They have been and remain this land’s first occupants who’ve been politically, socially, and economically dominated and marginalized by violence and oppression ever since the arrival of those who came much later and took over. And their only source of preservation from genocidal onslaught has been treaties and the sovereignty they guarantee.

Before the invasion of Europeans, there were no “foster care” children among them. The traditions still stand resiliently, albeit damaged by fierce and repetitive assaults—that their children, all of them, carry a sacred significance within their being. From what I’ve seen, Native American adoration and care of children is likely greater than that aimed by EuroAmerican and European caregivers toward their own children because it involves every community member in their caregiving and the support of their positive growth. I remember once watching in awe as a baby was passed between at least 30 people at a birthday party.

American Indian studies professor Gary Witherspoon, who recently walked on, noted that Native American cultures have never subscribed to Euro “biogenetic categories” about “kin” but instead view kinship as the centerpiece of a universal “moral order,” one depicting a profound interrelatedness between all humans, animals, plants, supernatural beings, and the earth and stars. This interdependence transcends Euro individualist notions of family and race with their categories that separate and segregate human relationships.

Yet it is the Native way, contained in ICWA protections, that is to be tested before the Court for its “discrimination,” a way that many peoples have found highly admirable, possibly superior, and which can be found encapsulated in both the Lakota phrase, Mitákuye Oyás’in, “all my relatives,” and the Blackfoot welcome, Oki Ni Kso Ko Wa, “greetings, my relative.”

Before ICWA, there was little to stop Native American children being coercively taken from their families by soldiers and colonists, and later, federal and state officials. For hundreds of years this occurred via policies orchestrated to destroy the home languages, cultures, and very identities of these children so as to “civilize” them in the European sense—with the not-coincidental byproduct of diminishing their will to ever return home and freeing up the last of their treaty-granted land and resources for the taking by outsiders.

Christian churches and missionaries of many denominations were the staunchest allies to these strategies, first, by rescuing displaced and allegedly misguided young Native souls away from their presumably “heathen” environments, and then, as founders, teachers, and administrators in highly regimented, austere, and abusive American Indian boarding schools, which held up to 80 percent of multiple generations, often throughout their entire child and teen years, from 1890 to 1973.

These educators of “inferior races” rationalized their training in manual labor and domestic servitude, a presumption bolstered by a burgeoning “mental hygiene movement” of psychiatrists, psychologists, and social scientists of the day. My own professional ancestors lauded the disconnection of these children from the love and teachings of their own families, helping to design their “resocialization” and dumbed-down curricula in these federal and church-operated institutions.

The expansion of boarding schools was fueled by “authorities [who] expressed great concern about how Indian children were raised and condemned Indian women’s mothering and home-making skills,” according to Margaret Jacobs, author of A Generation Removed and chancellor’s professor of history at the University of Nebraska–Lincoln.

In the early 20^th century, the Bureau of Indian Affairs (BIA) mounted numerous attacks on Indian motherhood. From 1959 to 1967, this agency formalized its efforts by partnering with the Child Welfare League of America to sponsor the Indian Adoption Project. This led to the adoption of many thousands of Native American children away from their own families and into white Mormon, Catholic, and other Christian families. Publicity for the initiative emphasized single Indian motherhood as a primary threat to the future of these children, “the unfit Indian family as the basis of Indian poverty,” and “intervention in the Indian family and child removal as the means to resolve the chronic ‘Indian problem,’” according to Jacobs.

To learn more about the critical and corrective importance of ICWA as well as the sordid history behind its necessity, I recommend, “The Indian Child Welfare Act (ICWA): Where We’ve Been, Where We’re Headed, and Where We Need to Go,” by Native adoptee, social worker, and psychiatric survivor Meschelle Linjean (Cherokee) and Hillary Weaver (Lakota). Meschelle has written about her own journey for Mad in America.

More Kinship, Less Drugging

Writing in 2001, Thomas E. Keller, social work professor at Portland State University, and his colleagues at the University of Washington, noted “substitute parenting by members of a child’s kinship network” is “a common child-rearing practice in many cultures throughout the world,” and “Native American. . . communities have long histories of supporting children through informal kinship care.” ICWA protects this traditional kinship pathway not just for its own sake, or solely in reaction to the history of coercive removal of Native children, but most importantly, to minimize the many risks to children and youth inherent in non-kinship, non-Native foster placements.

Kinship care is defined in social work terminology as the full-time care of a child by a relative or close family friend. About 7.6 million children are currently cared for by kinship caregivers in the United States, mostly by grandparents, but also aunts, uncles, older siblings, cousins, and family friends. The vast majority of these arrangements are called “informal kinship care” and have little or no state involvement, and this is likely because of the intensity of state investigation, oversight, and regulating faced by people, often in economically disadvantaged circumstances, when trying to help child relatives in crisis and seeking to get paid by the state for doing so.

The hurdles are too enormous. In Washington state, where I live, a 2020 survey by Partners for Our Children included a sizable number of Native kinship caregivers and found their median income to be less than half the state average. Not surprisingly, their primary complaint across multiple survey domains was financial need. Yet they also wished they could have more support for emotional turmoil experienced by themselves and the children in their care as well as for these children’s education. I say “children” plural because the average informal kinship caregiver in this regional survey was caring for two children, with some providing for as many as four on their limited income.

Despite the sacrifice and deprivation these caregivers experience, kinship placements are far more stable for Native and other youth than non-relative foster care. Even though they may not qualify for licensure or wish to avoid the cumbersome navigation of state bureaucracies, a large U.S. national study in 2011 found children in kinship care were significantly more likely to be living with a permanent caregiver at a three-year follow-up. The Partners for Our Children survey found the average time children resided in informal kinship care to be much higher (seven years) than when in formal kinship care with state involvement (four years).

Most crucially, these children fared considerably better than their peers in non-relative foster care—specifically, in having fewer behavioral and social skills problems and less psychotropic drug prescriptions.

Kinship care has also showed up as a protective factor against substance abuse among so-called “aging-out youths,” that is, young adults who’ve outgrown state involvement. In Thomas Keller et al.’s study, “kinship foster children were no more likely than the normative population to be above the clinical cutoff” on a widely utilized child behavior checklist.

If ICWA protects a cultural approach to kinship care that also “works” under the criteria of Western empiricism, its initial empowerment reflected decades of efforts by states to undermine the voice of tribal communities in the care and future of their own children.

As of 2018, the Children’s Bureau, Child Welfare Information Gateway, described only eleven states with statutes “specifically allowing members of an Indian child’s tribe to be considered ‘extended family members’ for placement purposes.” With ICWA dismantled or abrogated, state agencies and officials will be restored a latitude that historically displaced Native American children away from their communities and into unfamiliar, often White, environments that deeply estranged them from their own cultural roots.

That is, today’s threat against ICWA is just a newer version of an old enterprise, and the narratives of many living Native American adoptees and foster youth who survived such “placements” and “adoptions” before ICWA recount the damage done to their identity and self-worth in the deprivations and adversities that brought them chronic hopelessness, alienation, substance abuse, and attempted suicide as adults.

Thus, taking down ICWA will greatly deemphasize kinship care in Indian Country with the result that more Native children and youth end up in non-Native foster care and foster-to-adopt programs. This will greatly increase the odds they’ll lose all connection with their community and culture.

What else can go wrong? In the 2011 national study mentioned earlier, the prevalence of behavioral problems for children in non-relative foster care increased over time at three-year follow-up, while it decreased for children in kinship care. Thus, we can expect Native children in non-Native placements to have more “behavioral health” problems, specifically as a result of oppressive societal events that will permanently alter their status and relationship with their communities.

According to a 2021 brief by the Medicaid and CHIP Payment and Access Division (MACPAC), nearly two-thirds of teens in foster care qualify for Medicaid/CHIP services, and this data helps us see how the risks for these children of being moved around more. MACPAC notes that “multiple residential moves” are associated with negative health outcomes in foster children, making them more likely to have poor overall physical health and chronic health conditions, and much more likely to report lower life satisfaction and psychological well-being when they become adults.

Kinship care preserves placement and stability; non-Native foster care and foster-to-adopt programs will entail more frequent moves as some youth “act up” emotionally and behaviorally. Between 2015 and 2019, MACPAC notes that one in five youth between 12 and 17 years old staying at least overnight in foster care felt they fit psychiatric labeling criteria for “Major Depressive Episode (MDE)” within the past year. Children and youth in foster care are nearly four times more likely to have attempted suicide than non-foster youth.

As I’ve mentioned, due to the opaqueness of the Indian Health Service, it’s impossible to find accurate information on the use of psychiatric drugs with American Indian and Alaska Native youth and children. True, 2006 and 2012 studies undertaken in Minnesota using state child welfare statistics seemed to suggest that Native American foster care children are prescribed psychiatric drugs less than other children—however, because these studies did not include prescription rates from the IHS, I suggest they are profoundly flawed.

Despite being mandated by law since 2016 to begin participating in prescription data sharing with state-run Prescription Dispensing Monitoring Programs (PDMPs), IHS has yet to develop a single MOU (“memorandum of understanding”) with any state agency that would allow for greater transparency regarding its prescribing habits to anyone in Indian Country, let alone Native foster care youth.

Less Kinship, More Drugging

Thus, we are left to contemplate the plentiful evidence of the drugging of foster care children and youth in general, and to suspect the same patterns, and possibly worse, will apply to their expanding use among Native foster care youth if ICWA is dismantled. A 2013 study of the New York City foster care system undertaken through New York’s Mount Sinai School of Medicine, Adolescent Health Center found that 19 percent of foster care youth were being prescribed three or more psychiatric drugs. In a 2008 study of the Texas foster care system alone (where the Brackeen case originates), “forty-one percent of medicated children in foster care were being treated with three or more classes of psychotropic medications.” The three most frequent classes of this admixture (prescribed to a random sample of 472 children drawn from a population of over 12,000 fostered children) were “antidepressants, drugs for treating ADHD, and antipsychotics,” each of which were being used in over 50 percent of treated youth.

Attention-deficit hyperactivity disorder (ADHD) represents a special case in the foster care picture. According to the CDC, American Indian and Alaska Native boys led the pack among U.S. children under age 18 for diagnoses of ADHD from 1997 to 2003. At that point, children of other ethnicities began catching up, although from 2011 through 2013, the percentage of Native children labeled with ADHD remained at its highest point and approximated white children at over 10 percent.¹ Forty-seven percent more children labeled with ADHD live at or below the poverty line than above it.

The rampant cultural phenomenon of ADHD diagnosis in the U.S. led both the CDC and the World Health Organization to periodically express languid concern about “over-diagnosis.” Additionally, a 40-fold surge in childhood bipolar diagnoses over the last two decades has stimulated controversy that it may be in part attributable to the side effects of ADHD-related stimulant drugs on patient mood and behavior. Regarding Native children diagnosed with ADHD during the 2013 surge a decade ago, abuse of “psychotherapeutic drugs” by today’s Native young adults aged 18 to 25 spiked 76 percent between 2018 and 2019.

In Sum

Many years ago, while I served on a LICWAC (Local Indian Child Welfare Act Committee) on the sacred land of the Yakama Nation in central Washington state, I witnessed the conscientiousness of group decision-making about children stimulated by the mandates and procedures of ICWA. This focus and care was especially pronounced when not enough placements were available through local tribal members, and resources had to be recruited from outside the community.

Poverty-stricken tribal relatives might step forward but be unable or unwilling to navigate the fear, intrusion, bureaucracy, and oversight involved in becoming eligible for compensation by the state. In that way, our strained system created conditions for non-Native caregivers living nearby to develop licensed foster care homes in partnership with the state. Their existence was not necessarily bad, and sometimes lifesaving, but the privilege of these caregivers brought them resources by which to capitalize upon the spirit of ICWA. The non-Native caregivers in these homes often had jobs and other sources of income, whereas tribal members did not.

Even if we did successfully locate a relative or community member willing and able to take in a Native child, it would more often be for informal kinship care with some state involvement, and uncompensated. Despite often being quite poor, these relations nonetheless had to be willing to demonstrate an ability to provide good care for the child. The outcome of an assessment would sometimes inadvertently be compared in our minds with the non-Native foster care setting.

The playing field was not at all level, was it? And the decisions we made were partly because our committee was biased toward the resources of a non-Native foster home over an impoverished relative willing to provide informal kinship care. I deeply regret the reality of such implicit biases considering what the research on informal kinship I’ve reviewed clearly shows. Because of the poverty of those Native people who stepped forward, we probably made wrong placement recommendations at times in favor of the “bells and whistles” of non-Native foster care providers over a true and sustaining connection to family, culture, and community.

This too, goes against the spirit of ICWA and the best interests of Native children. Perhaps such placements increased the likelihood of those children becoming further estranged from who they were, of acting up behaviorally and then being labeled, and then being drugged and sedated. I can hardly stand the thought of it and can only say in our defense that we tried hard to be careful given what we knew. Yet now even that flawed process we utilized is under the threat of being discarded by the U.S. Supreme Court.

 

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MIA Reports are supported, in part, by a grant from The Thomas Jobe Fund.