My Navajo identity was taken from me

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Opinion: I’m a Jersey girl born into the Salt Clan. My Navajo identity was taken from me

Opinion by Hilary Tompkins

November 21, 2022

Editor’s Note: Hilary C. Tompkins, a member of the Navajo Nation, served as the Solicitor of the US Department of the Interior during the Obama administration. She currently practices law in Washington, DC. The views expressed in this piece are her own. Read more opinion at CNN.

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My adoption papers said my mother was “very attractive” and that my “grandmother has some education and is considered to be an intelligent woman.” My father, who was listed as “Plains,” was described as having “hair with a slight tendency to wave.”

These small nuggets of information from my adoption papers were my only connection to my birth family. Only much later in life, as a young adult taking Native American studies at Dartmouth College, did I learn that I also had a legal connection with the Navajo Nation as a citizen of the Tribe.

Hilary Tompkins

I’m like many Native Americans who were placed in White families under the Department of the Interior’s Indian Adoption Project in the 1960s and 1970s.

As with the placements of Indian children in boarding schools, this program removed Native children from their Tribes without justification and assimilated them into mainstream America. When I met my birth family as a young adult, one of my aunts held me and cried, saying the last time she held me I was a baby and she had told the hospital officials that she and my extended family would take care of me, but to no avail. I was taken away and put up for adoption anyway.

Recognizing that the continued existence of Tribal Nations was at stake because of the loss of up to 35% of their children, Congress outlawed this practice in 1978 with the passage of the Indian Child Welfare Act (ICWA). At the time, placement with White families was estimated to be at 90%.

Earlier this month, the US Supreme Court held oral arguments in a closely watched case, Haaland v. Brackeen, to decide whether the Indian Child Welfare Act is unconstitutional because it favors the adoption of Native children by Native families.

The states of Texas, Louisiana and Indiana, along with non-Native parents seeking to adopt Native children, say that ICWA amounts to racial discrimination because it has nothing to do with the “ability of Indians to govern themselves.” They argue that the states and non-Native parents should be able to decide the placement of Native children free of consideration of their tribal status because there is no political interest of the Tribes at stake.

And opponents of the Indian Child Welfare Act even go a step further, saying that the law goes against the best interests of Native children by imposing standards that make it harder for them to be adopted into stable, loving homes.

As a Native person who was adopted into a White family before the implementation of ICWA, that’s not the way I see it. I can attest firsthand, as a citizen of both the United States and the Navajo Nation, that ICWA is not about race.

I grew up in southern New Jersey, but I always knew I was Navajo. Born in Zuni Pueblo, New Mexico, I was separated from my family with only a few papers as evidence of my Tribal status.

By all outward appearances, my life today gives the impression that the Indian Adoption Project was a success. I was placed in a family that loved me. I received an exemplary education. I live a comfortable, middle class life. I have enjoyed professional success, having served as Solicitor of the Department of the Interior, the third ranking position in the department – the very federal agency that set my course in life. Yet despite these blessings, the Indian Adoption Project left me adrift, a foreigner in my own country.

Upon my return to the Navajo Nation almost 30 years ago, my sense of loss was overwhelming. The Navajo Nation is a different world: Navajo is frequently spoken there and the laws and way of living are based on Navajo traditions. There is no separation of Navajo spirituality from Navajo sovereignty. One foundational principle is ke’ – kinship – which is rooted in a vast clan system. I didn’t know my clan and couldn’t speak the language. Nor did I understand the complex and traditional laws of Navajo society. The loss of my culture was not just personal, but political.

I tried to make up for my losses, learning some of the language, attending our traditional ceremonies and working for the Navajo Nation Department of Justice. But despite my best efforts, I couldn’t catch up. I can vote in our elections but I don’t understand the stump speeches. I can’t run for office as I am not a fluent Navajo speaker. I reconnected with my birth family, but I have never felt fully integrated into Navajo society.

Should Native Americans get preference over White people in adopting Native children? The Supreme Court may decide

ICWA recognized that in order to have functioning tribal governments, you need the next generation of tribal citizens to be part of tribal political society. Taking away Native children threatens tribes’ future because the loss of their kids jeopardizes Tribes’ ability to be political sovereign entities. The law gives a preference for placing a Native child with extended family members, members of its Tribe or members of another Tribe – a priority that can make it harder for a White family to adopt. It requires state courts to notify the Tribe about the child, and to have them indicate the preferred placement – or to say placement with a particular non-Native family is okay.

During oral arguments earlier this month, two of the justices indicated that they understood how high the stakes are for Tribal Nations. Justice Neil Gorsuch observed during oral arguments that in passing the law, Congress understood that ICWA is “essential to [the] self-preservation of Indian tribes.” And Justice Kagan recognized that “the political entity is itself being threatened because of the way decisions on the placement of children are being made.”

If ICWA had been in place when I was adopted, my Tribe would have been involved in my adoption. Navajo tribal authorities would have had a say in my adoption had I been adopted under the provisions of the law. I could have maintained a connection with my relatives – even if I had ended up with White parents. I still could have been adopted by a non-Native family, but my adoptive family might have been able to connect with my extended family or others, fostering a connection with my Tribe. But because I was placed for adoption prior to the existence of ICWA, I had to reclaim my connection with my Tribe all on my own.

My family and I eventually found each other by serendipity when I was living on the Navajo reservation. In middle age, I have come to accept who I am – a Jersey girl born into the Salt Clan. I have overcome the pain and loss. But I wouldn’t wish my experience on the children of Tribal citizens today. We cannot fail Native children again as we have failed them in the past.

Native children deserve the opportunity to be citizens of both the United States and Tribal Nations. I pray that they will not be the subject of another social experiment based on the decisions of government officials who haven’t walked in the shoes of the First Americans.

Tribal voices matter : Native adoptee Hilary C. Tompkins

The Native American Presidential Forum: Tribal voices matter

(Photo: Hilary C. Tompkins)

by Hilary C. Tompkins

A new president could bring about positive change by understanding that they may be the commander-in-chief of the United States, but not for tribes says Hilary C. Tompkins

As an enrolled member of an Indian nation in America, you often get a feeling that you are a foreigner in your land. I am one of those Indians who were separated from their tribe and adopted by a non-Native family before the passage of the Indian Child Welfare Act in 1978, uprooted from my Native culture and language and forced into a new identity. The great truth was that I could never let go of my Native roots, even if I tried to blend into mainstream America. My Native roots were strong, deep, and unyielding. I’m American, but I am a dual citizen with membership in my tribe, the Navajo Nation. I bounce between two worlds, like many of my Native sisters and brothers.
Native Americans are treated as mythological creatures in America, and our modern-day voices are often not heard in today’s world, let alone in the political arena. An excellent example of how Native Americans can feel left out of the conversation is the current criticism of tribalism in our politics. From the Native perspective, tribalism is a source of pride and foundation in one’s identity that doesn’t create harmful divisions. Attend a Pueblo feast day where neighboring members of other tribes partake in a bowl of stew, and you’ll see firsthand how tribalism can be a good thing.

I can count on one hand the times I felt American politicians understood me as a Native American voter. One was when I served under former President Obama with countless other Native American appointees, working together as public servants to restore and rebuild the broken trust relationship between over 500 Indian nations and the United States. More recently, I felt that our voices mattered at the Frank LaMere Native American Presidential Forum in Iowa a few weeks ago. To hear multiple presidential candidates, speak about treaty rights, the fulfillment of trust responsibilities, and the moral duty to address our plight felt like a new chapter in the fabric of American politics.

The key will be to not become a short soundbite in a campaign cycle. My sense is the candidates at the Forum are committed in heart and mind to the mission of addressing our issues (and by the way, Joe Biden’s absence was unfortunate as I have seen him in action on Native American issues and we have side-barred on the topic, and he says all the right things). The candidates hit all the top issues: public safety, healthcare, education, and economic development, to name a few. Many of these changes and reforms will require significant funding and legislating specialized treatment of Native Americans, which likely means that the Senate will need to flip to make them a viable reality. But it’s a good start with candidates speaking our language for once.

The challenge will be finding the political will to implement these reforms. We had that political will under the Obama administration where we made significant gains with the annual White House summit, the historic settlement of many tribal trust lawsuits including Cobell, and the recognition of tribal inherent authority to prosecute non-Native domestic violence offenders, among many others. A new president will provide an opportunity to build upon the Obama platform. I recommend that any new administration not only address the social ills and injustices that we face but also focus on reforms that will strengthen and protect tribal self-governance. It is easy to get caught up in the parade of horribles inflicted upon Native Americans in campaign rhetoric, but tribal nations are also emblematic of high strength and resilience that should be celebrated by the candidates.

One area the candidates should add to their list is that a president should walk the walk of being a good trustee by protecting tribal sovereignty in the courts. This commitment starts with appointing an Attorney General at the U.S. Department of Justice that will file litigation affirmatively with the Tribes in support of tribal sovereign authority, such as to protect treaties, tribal lands, and tribal jurisdictional authority. During my stint as Interior’s Solicitor, a large part of my job was educating my federal colleagues about why the official U.S. litigation position was not consistent with the federal government’s role as trustee. I had some successful outcomes, but countless other losses where I remained the minority view (literally and figuratively) that the U.S. litigation position should be on the right side of tribal sovereignty.

Another area that the incoming president should address is the appointment of Native Americans to the federal bench. He or she should be developing a list of potential candidates as we speak to align with upcoming vacancies. Given the magnitude of federal cases that impact Indian nations, we must have judges that possess a basic understanding of federal Indian law. There are over 800 seats in the federal court system with only three Native American judges appointed. The lack of Native American representation in our federal judiciary perpetuates the disenfranchisement and dispossession of tribal authority.

A final example of where a new president could bring about positive change is by understanding that he or she may be the commander-in-chief of the United States, but not for the Tribes. The future of Indian Country should be defined by tribal leaders with the federal government in an ancillary but supportive role. The candidates are rightly focused on the dire conditions in Indian Country. It is unacceptable that: some reservation communities still lack running water and electrical services; Indian Country is often hardest hit by the impacts of climate change from drought, wildfires, and sea-level rise; and energy projects shouldn’t be forced upon tribes. But in the same breath, the candidates need to acknowledge that the Tribes are the ones which are best suited to determine how to address these and many other pressing challenges.

A president has great power to make a change for the better in Indian Country, but it is ultimately the Tribes that must determine their future path. We saw that dynamic when former President Obama used his presidential power under the Antiquities Act to designate the Bears Ears National Monument based on tribes’ cultural knowledge and identification of this sacred landscape. Together, the Tribes and a new president could make more great history, if our voices are heard not as another voting constituency, but as dual citizens with a perpetual trust relationship with the United States unlike any other entity in the American body politic.

Hilary C. Tompkins, Navajo, served as the first Native American Solicitor for the U.S. Department of the Interior under the Obama administration and currently is a partner at Hogan Lovells in Washington, D.C., practicing Indian law.
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