100 Years of Litigation: From the Dawes Act of 1887 to the Indian Child Welfare Act (ICWA) of 1978
The Dawes Act
The Dawes Act of 1887 was essential to the settler state's theft of land. The act, also known as the Allotment Act, divided all of Native reservation lands into 40, 80, or 160 acre pieces, which were then distributed amongst family members according to their legal age, head of family status, etc. All leftover lands were marked as "surplus" and went up for auction to settlers. Native land holding went from 138 million acres to 48 million while designations of who obtained land reproduced colonial structurings of heteropaternalism, which Arvin et al. describe as the idea that nuclear-domesticity and heteropatriarchy are the default. In doing so, the Dawes Act also sought to assimilate Indigenous peoples by undermining ties to land and national belonging through the individual parceling of what was largely communally held land. Central to this was also the pitting of community members against each other--especially through the settler-patriarchal gender divide. The Dawes Act also required the creation of the Dawes Rolls, in which the process of dividing communally held lands required citizens to be registered by the US government. As settlers attempted to gain access to lands also through obtaining membership, Indigenous peoples had to navigate developing conception of blood quantum--the main measurement of the rolls which attempted to ascertain whether someone was Native according both to the "amount" of native blood they had and whom they inherited the blood from. Kim Tallbear discusses in Native American DNA, that such constructions continue to be at play in conceptions of DNA, which has carried on ideas around blood inheritance. She also notes, however, important distinctions between Indigenous nations' methods of enrollment as well as argues that nations are well aware of the double-edged sword of blood and DNA reliances. She writes that "We use the language of blood and blood fractions while keeping in mind a specific world of policy and while bearing in mind that that language is shorthand for what we know is a far more complicated story of our lineages" (64). Given the complex ways in which blood quantum comes to bear on Indigenous membership and belonging, the Dawes Act helps us to situate Zitkala-Ša's American Indian Stories within the processes of assimilation and belonging both as it is applied forcefully by the settler state and how it is also undermined and subverted by Native actors. In doing so, we see ultimately that the processes of assimilation and biopolitical belonging are not simply matters of resistence/submission, but deny any easy categorization of experience. It is here that the Bonnin's literature opens up the contradictions which legal documentation cannot present to us.Residential Schools
Beginning in the late 19th century and mirrored after colonial missionary schools, residential schools were government-run boarding schools which sought to dispossess Indigenous peoples of their land by educational assimilation and extreme disciplinary structures; the goal for these schools was to "eradicate traditional tribal culture" (Davidson and Norriss xii). Bonnin both attended missionary school herself and worked at the model residential school, the Carlisle Indian Industrial School, until she was dismissed in 1901 by the founder. Founder of the Carlisle school, Richard H. Pratt, infamously quoted for his mission to "Kill the Indian, save the Man," both sent Bonnin to recruit students from her Yankton reservation and fired her from the school upon her disagreements around the severity of white assimilation in the schools (Kliewer et al. 1). These disagreements and contradictions are visible in American Indian Stories, since some of the short stories were published in Harper's Monthly about the same time as her leaving Carlisle--such as the 1902 publication "Soft Hearted Sioux," which markedly tells of a young Dakota boy who is in turmoil after the schooling has ultimately cost him his sense of identity and belonging.The Indian Child Welfare Act (ICWA) (*hover over to see animations)
In her introduction to Critically Sovereign, Joanne Barker lays out how elimination projects occur through “the breaking-down of native title into alienable individual freeholds, native citizenship, child abduction, religious conversion, resocialization in total institutions such as missions or boarding schools, and a whole range of cognate biocultural assimilations” (Wolfe qtd. in Barker 23). Elimination projects also occur through “the amalgamation of Native peoples into settler society and the narrowing or erasure of claims on Native nationality. For instance, blood quantum and other racial and colonial methods for determining Native identity enact narratives of “dilution,” anticipating Native people’s disappearance, and define self-identified Native people and people of mixed Indigenous heritage as “non-native” (morgenson 16). In this way, the previous mentioned processes of assimilation and control through residential schools and the Dawes Act produce the circumstances which make the ICWA possible. That is, the continual dispossession of Native peoples of their own children and reproductive sovereignty which resulted in Native children adoptions rates skyrocketing to 20x that of the national US average at the time of the act's conception (Rifkin 182).The Indian Child Welfare Act of 1978 determined--albeit in convoluted and often unreliable ways--that Native children within adoption and foster care settings should be adopted out to their own tribe or nation and to other Native families should the specific nation not be an option. Specifically, the law gives tribes jurisdiction over all custody proceedings for children living in Indian country as well as puts tribal requirements in place wherever Native children are involved, thereby creating greater protection for Native parents and tribally-specific procedures (Rifkin 182-183). However, ICWA also conflates kinship and race thereby creating “a vision of Indigenous belonging still based on calculating “Indian” descent, segregating the content and determination of such genealogical relation from the sphere of politics proper” (Rifkin 173). In doing so, ICWA Treats Indigeneity as biologically determined and, like the Dawes Act, links sovereignty to the family thereby tying ‘Indianess” through reproductive terms. As the main goal is focused on assessing the inheritance of Indianness, ICWA also undermines “authority of Indigenous polities over their territories and citizens” (Rifkin 187). This is complicated by Barker, though, as she points out that although biology both cannot encompass Indigeneity (especially when it comes to gender and sexuality), it is also also seen as a core part of understanding “status, labor, and responsibilities, including matters of linearity (heredity), reproduction” and other larger-than-human relations (13).
The language of the act is one of protection--the act references repeatedly the "special relationship" of the US and "Indian tribes"--whereby the US imagines itself responsible for ensuring the continued existence of Native culture. The act relies on parsing out of language which seeks to define such terms as "Indian tribe," "parent," and "extended family member" as imagined within the strict regulations of US court and citizenship logics (see section 1903: Definitions). Spanning almost one hundred years, I turn here to ICWA to account for the continuances as well as differences in how contemporary settler colonial projects attempt to define Indigeneity as well as exercise control over Indigenous children and reproduction. In doing so, we can see that ICWA becomes another site of contradiction in which the US settler state relies on heteronormative narratives and racial designations of Indigeneity to profess claims of "protection" and paternalism all while materially confirming protection for some Native children. In thinking through these contradictions both within ICWA and across settler colonial attempts at conscription, I contend that we follow Barker in rejecting the “evolutionary metanarrative of oppositionality or assimilation” and instead attend to how literature like American Indian Stories requires us to sit in the space of ambivalence while not shying away from the underlying stakes (Barker 17).