Washington Supreme Court says Indian Child Welfare Act should be more broadly applied #ICWA

By Paula Wissel • source

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  Washington Supreme Court Justice Raquel Montoya-Lewis, left, reacts to applause after she was sworn in, Monday, Jan. 6, 2020, in Olympia, Wash. Montoya-Lewis wrote the unanimous opinion calling for the Indian Child Welfare Act to be more broadly applied.  [Ted S. Warren / The Associated Press (file)]

A Washington Supreme Court decision saying the Indian Child Welfare Act should be more broadly applied is being called a big win for Native American rights.

Congress passed the Act in 1978. Washington state has its own version as well, called the Washington Indian Child Welfare Act. What the welfare acts do is require that tribes be notified and allowed to intercede in child custody or loss of parental rights cases if the family has any tribal relationships.

The unanimous opinion was written by Washington’s first Native American justice Raquel Montoya-Lewis, who cited the long history of Native American children being taken from their communities.

The case before the court involved the removal of two toddlers from their Kent home in June 2018. Police cited "neglect and unsanitary conditions" as the reason for placing them in protective custody. During the hearing to see if they would be returned to their parents pending review of the case, both parents mentioned they had tribal heritage. The mother indicated she had a grandmother who was a Tlingit-Haida and the father said he had connections to the Umatilla band in Oregon. 

But the judge determined there was not enough evidence presented of those connections and decided the Indian Child Welfare Act did not apply. King County Public Defender Tara Urs says not applying the act at that point was harmful, as the children ended up being placed in foster care.

“It actually made a difference in the lives of these children, the failure to apply the law,” Urs said.

Eventually, the 2-year-old and 21-month-old did go live with a Tlingit-Haida relative in Alaska. 

In overturning the lower court, the state Supreme Court said the Child Welfare Act should have been applied early on in the case, saying the bar for applying it needs to be very low when determining a family’s relationship to a tribe. Justice Raquel  Montoya-Lewis began the opinion by harking back to the past. She wrote:

"In Native American communities across the country, many families tell stories of family members they have lost to the systems of child welfare, adoption, boarding schools, and other institutions that separated Native children from their families and tribes. This history is a living part of tribal communities, with scars that stretch from the earliest days of this country to its most recent ones."

This history is a living part of tribal communities, with scars that stretch from the earliest days of this country to its most recent ones.

In her conclusion, Montoya-Lewis wrote:

“Decisions to remove children from the care of their parents are some of the most consequential decisions judicial officers make. When those decisions impact a Native American tribe, those decisions reach beyond the individual family, affecting the continuation of a culture. We recognize that our rulings addressing dependency cases have far-reaching effects on children, their parents, the out-of-home placements in which dependent children reside, and the manner in which courts and judicial officers manage these complex cases. But, as the United States Supreme Court stated recently, ‘[T]he magnitude of a legal wrong is no reason to perpetuate it.’”

Decisions to remove children from the care of their parents are some of the most consequential decisions judicial officers make. When those decisions impact a Native American tribe, those decisions reach beyond the individual family, affecting the continuation of a culture.

Tara Urs, who argued that the trial court and Court of Appeals’ decision should be overturned by the Supreme Court, was pleased by the ruling. Not only did she prevail, she said, but the framing of the opinion by Montoya-Lewis made it “one of the most persuasive cases of judicial writing I’ve ever read.”

For too long, Urs said, the spirit of the Indian Child Welfare Act has been ignored by the courts. As recently as 2015, American Indian and Alaskan Native children in Washington were represented in foster care at a rate 3.6 times greater than in the general child population.