Separating Children from Their Families Is, Unfortunately, As American as Apple Pie

The United States has a long history of separating children from their parents and caring nothing for either the parents’ rights or the children’s welfare.  It started at least as early as 1620 when the Virginia Company complained to Sir Robert Naunton, principal secretary of James I, that London street-children were unwilling to be sent to Virginia colony as apprentices. The authorities in London wanted to get rid of these ragamuffins and hooligans so shipped them off to the colonies to be put “under severe masters they may be brought to goodness.”  If they didn’t want to go, we do likewise hereby authorize such as shall have the charge of this service to imprison, punish, and dispose any of those children…and, so to ship them out for Virginia with as much expedition as may stand with conveniency. Separation from parents was common and children born out of wedlock were often taken without the concern or care of the mother.

Slavery was the quintessential example of removing children from parents with no concern for either. In those days, wives and children were property of their husband so the children took the nationality and citizenship from the father. This presented a problem about the children born of enslaved women who were routinely raped by the enslaver because those children born would take the status of the father and be free.  So in 1662, the law was changed to say that “Whereas some doubts have arisen whether children got by any Englishman upon a negro woman should be slave or free, Be it therefore enacted and declared by this present grand assembly, that all children borne in this country shall be held bond or free only according to the condition of the mother, and that if any Christian shall commit fornication with a negro man or woman, he or she shall pay double the fine imposed by the former act.” Virginia Statutes: ACT XII (1662). This allowed those children, whose father was the enslaver, to sell his own children for profit.

Prior to the Civil War, an enslaved person was not recognized as a person with rights and so had no control over the fate of their own children, who were routinely taken at will for work or to be sold.  Approximately one-third of enslaved children in the upper South states of MD and VA experienced family separation due to sale. In the echoes of slavery today, Black women are targeted by child welfare personnel and healthcare professionals. Though Black and white woman use drugs at the same rate, it is the Black women who are tested in the pregnancy ward. Black children are 14 times overrepresented in the foster care system. Black families are targeted for state intervention in the criminal system as well as the welfare system and the children taken away.

Native American child theft is less talked about but with the recent release of the Federal Indian Boarding School Initiative Investigative Report May 2022Assistant Secretary – Indian Affairs Bryan Newland that may change. As early as 1600, Native American children were particularly vulnerable to removal by colonizers. Captured children might be sold into slavery, forced to become religious novitiates, made to perform labor, or adopted as family members by Euro-Americans.

From the late 1890s to 1950s, Native children were taken from families and put into boarding schools. Tribes that did not cooperate with the U.S. were targeted and children of the leaders were taken as hostages.  The schools weren’t just a tool for cultural genocide. They were also a way to separate native children from their land. During the same era in which thousands of children were sent away, the US encroached on tribal lands through war, broken treaties, and new policies.

Yet when the boarding schools were closed, another program was hatched to take Native children.  U.S. Bureau of Indian Affairs joined with the Child Welfare League of America in launching the Indian Adoption Project (IAP), the country’s first large-scale transracial adoption program. The IAP eventually moved between 25 and 35 percent of the native children in the United States into interstate adoptions and foster care placements. Essentially all of these children were placed with Euro-American families.  Finally in 1965 the Indian Child Welfare Act (ICWA) passed to stop the welfare agencies from taking Native children for adoption by whites. At that time, between 25-35% of Native children were being removed from the home and 85% were placed with white families or in institutions. Around 90 percent of those children were being raised by non-Indians. Many would never see their biological families again. According to a 1976 report commissioned by the Association on American Indian Affairs, as many as one- third of Native American children were separated from their families between 1941 and 1967.

As late as 1969, white born-again Christians founded a rescue mission focused largely on American Indian children in and near Tucson, Arizona. House of Samuel, as it was called, dispatched its staff (and founders) to remote reservations in the nearby deserts or mountains to “offer assistance” to new unwed mothers or those with multiple children and no means.

In 1975, tribal court judge Anna Early Goseyun was so outraged by what was happening to her community’s children that she led a raid on House of Samuel. Her goal was to bring the Apache children home. “People call me militant and communistic,” Goseyun told the Arizona Daily Star in 1977. “But you have to be a little militant to change things.” The Navajo Nation and the White Mountain Apache Tribe later hired Hirsch to represent the tribes in a lawsuit alleging that House of Samuel was kidnapping children from reservations and unlawfully terminating parental rights for the purpose of adoption.

In the end, the tribes prevailed. The judge ruled that at least one of the children was not eligible for adoption because they already had parents. But more importantly, according to Hirsch, is the fact that House of Samuel’s practice of taking children was not an aberration. “It was very common for non-Indian folks to cruise reservations, or communities bordering reservations, and just take kids. Then, when the parents wanted to get their kids back, they would run to state court to try to get guardianship or terminate parental rights,” she said.

But yet again in 2022, ICWA is under attack at the Supreme Court on a case brought by the Goldwater Institute among others.  The case is scheduled to be heard next session. Though Native children are 11 times more likely than white kids to be placed in foster care, a judge in Texas said that ICWA is unconstitutional because it is racist to say that Native children have to be kept with their tribes.

The Cherokee Nation sued because their point is that the tribes are not states, they are separate nations and ICWA is similar to the Hague Convention i.e. when a child from another country is in the U.S. and has an issue, what do you do – return the child to the country of origin. The Nation is saying that is precisely what ICWA is doing – return the child to the country of origin i.e. the tribe and the judge’s ruling is a violation of tribal sovereignty.

Even though Arizona was once Mexico and many of the families have lived here for centuries, during the Great Depression, local authorities participated in a mass deportation of Mexican immigrants and Mexican Americans whom they blamed for the economic downturn. Between 500,000 and 1 million Mexican immigrants and Mexican Americans were pushed out of the country during the 1930s repatriation, as the removal is sometimes called.

Some families hid children away from relatives in the U.S. to prevent them from being sent to a foreign country they had never visited, according to Francisco Balderrama, a Chicano studies professor at California State University-Los Angeles and co-author of “Decade of Betrayal: Mexican Repatriation in the 1930s.” Many families felt they were being forced to separate from their children, who were U.S. citizens.” And many children,” Balderrama said, “never saw their parents again.” Approximately 60 percent of those leaving were legal American citizens. The same thing has happened today with DACA recipients and military families. Mexico has even set up special economic zones for Americans many who don’t even speak Spanish, being forced into Mexico.

Racism was a major factor used to justify the deportations. The same arguments were used than that are used now. They weren’t true then and they aren’t true now. Jobs were not saved because agricultural employers sought to keep Mexicans in the United States at least for the harvest season. Agricultural management understood that most Anglo workers would not work for the prevailing pay in the farm community, nor could they even do the work. The U.S. did not save any money in benefits because Mexicans or Mexican Americans comprised less than 10 percent of all relief recipients. Today most will not apply for benefits they are eligible for due to fear. In contradiction to negative stereotypes, many Mexicans took with them substantial amounts of money they had saved in the United States. In 1931, California reported that repatriated Mexicans withdrew nearly seven million dollars from U.S. banks.

Often the American born children returned. One attended ASU and became a professor. Another who wasn’t deported but witnessed his friends leaving became a staffer on Capitol Hill in Washington.  These are the kind of people we are excluding and wasting our resources on – such as bussing the refugees to Washington, D.C., when we should be focusing on gangs and drugs and stop sending guns to Mexico.

Poverty was another reason to remove children. From 1854-1929, the Orphan Train Movement was a supervised welfare program that transported children from crowded Eastern cities of the United States to foster homes located largely in rural areas of the Midwest. About 250,000 children were relocated. They were mostly the children of new immigrants and the children of the poor and destitute families living in these cities.  Many were not orphans at all.

Arizona has its own story.  On Saturday, October 1, 1904, on the request of a newly arrived French priest, a group of Irish-American children arrived by train in Clifton, Arizona from the Catholic Foundling Hospital in New York to be adopted by Mexican families in Clifton and Morenci who attended the parish. When the priest and Mexican women met the children at the train station, some white woman, “Americans” they called them, gathered to watch the spectacle.  The children, white, pretty, neatly dressed, some with long blonde curls, shocked these “Americans.” One of the women, Mrs. Gatti, asked the priest if she could have a child because her husband was Catholic though she wasn’t.

The white residents were outraged that these “American” children were being adopted by the Mexican residents. Within 24 hours, they had taken all the children away from the Mexicans by force of arms and put them in “white” households. They filed a case that eventually went to the U.S. Supreme Court. They won of course. Reformers in the 1920s and 1930s began promoting the idea that children should not be separated from their families.  It seems we have to relearn this lesson today.

The Flores case, first filed in 1985, challenged the federal government’s treatment, detention, and release of immigrant children. It resulted in a settlement in 1997 with legal prohibitions against holding children in adult criminal facilities. As a result, the child is taken from the parent and placed into the custody of the Department of Health and Human Services (HHS) in HHS facilities. The Flores agreement sets standards for the treatment and conditions of children held in immigration detention and limits the time that children can be held in detention. The Flores agreement requires children to be released to a parent, legal guardian, or a licensed program willing to accept custody, whenever possible. If not possible, then it requires the government to hold the child in the “least restrictive” appropriate setting that meets a minimum standard of care and treatment necessary for children. Presidents since then have violated, attacked the terms of the settlement, and attempted to overthrow it.

In 2008, Congress had passed an anti-trafficking law that required DHS to refer unaccompanied minors from countries other than Canada and Mexico to the Department of Health and Human Services, which would in turn place children in the care of a family member in the U.S., a foster home or an Office of Refugee Resettlement shelter while they waited for their cases to be adjudicated.

In 2017, Trump decided to do what Obama had not: His administration routinely separated children from their parents, so that the parents could be detained indefinitely. The 20-day detention limit created to protect children became the Trump administration’s justification for separation. As migrant families were apprehended, parents would be sent to jail and children would be handed off to HHS as “unaccompanied minors.”

In 2018, When the Trump administration implemented the Migrant Protection Protocols — better known as the “Remain in Mexico” program in December 2018 to force asylum seekers to wait for their hearings outside of the U.S. The policy exempted unaccompanied minors, and many parents forced into Mexico with their children made the same decision migrant families are making today: to send their children to cross the border alone so they at least could wait in the U.S. and have hope.

The ‘zero-tolerance’ policy rapidly evolved into separation of parent and child at the border. This is because parents are arrested at the border and criminally charged with illegal entry. Due to these criminal charges, protocol does not allow the child to be kept with the parent because the child is not criminally prosecuted. But this deliberate cruelty of family separation has not deterred migrants from coming to the United States.

At the same time, the administration failed to implement family reunification processes, allowing the families to at least communicate or inform each other. There was no uniform process in place to identify which child belongs to whom, to inform parents about the whereabouts of their child, and to reunite parents and children even after a parent has been released from detention. With limited access to any kind of communication channel, the parents may be unable to find where their children are being held or receive assistance in locating them. Once released, parents may wait for long periods of time to be reunited. In some cases, parents were deported without their children.  The Remain in Mexico policy has been overturned in litigation.

Then the pandemic hit. In March 2020, the White House strong-armed the Centers for Disease Control to invoke an obscure public health order, Title 41, which gives the executive the power to close the border in a time of health emergency. Citing Covid-19, the U.S. began to immediately turn away thousands of people who would normally be able to make their asylum cases in court — including unaccompanied children. Title 42 is still being litigated with the courts preventing Biden from ending it. Once again, the immigration system has morphed into the criminal system to control vulnerable and undesired people.

Ducey is now trying to prove he can be as bad as Abbot or DeSantos by bussing refugees to Washington D.C. to make some kind of political point.  By doing so he is not only wasting taxpayer dollars to the tune of $15 million ($2,200 per refugee which could be put to much better use) but he is violating both state and federal law about kidnapping, wrongful imprisonment, and trafficking.  If the refugees miss their next asylum hearing because they are in the wrong place, he is also guilty of obstructing justice.  Governor Newsom has already asked the federal government to investigate.  Uncage and Reunite Families will soon be following.

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