“For Indian country, it is maybe one of the most important cases that has ever gone before the Supreme Court” | The case that seeks to strike down the Indian Child Welfare Act is about colonialism

 NOVEMBER 5, 2022  THE HILL

Supreme Court’s ‘sleeper’ case is major clash over Native American adoptions

by John Kruzel  

The Supreme Court heard a dispute over a longstanding federal law that gives preference to Native American families and tribes over non-Native couples when deciding where to place Native children in custody proceedings.

Although overshadowed by the court’s more politically charged cases, legal experts say the dispute could prove hugely consequential for Native American rights and tribal sovereignty.

“It is a sleeper case,” said Mary Kathryn Nagle, a Native rights attorney who filed an amicus brief in the case. “For Indian country, it is maybe one of the most important cases that has ever gone before the Supreme Court.”

The dispute tees up questions about whether the Indian Child Welfare Act (ICWA) unlawfully imposes race-based preferences when placing Native children, and if the law amounts to excessive federal overreach into state adoption policy.

The case plays out against the uniquely troubling history of mistreatment suffered by the country’s Indigenous population, including the once-common practice of separating Native American children from their families and tribes, which the ICWA was designed to combat.

The Supreme Court looked very different when it last confronted a major ICWA question in 2013 and counted the late Justices Antonin Scalia and Ruth Bader Ginsburg among its members. Although the court now has a solid 6-3 conservative majority, some court watchers believe the current ICWA case could produce a split among the court’s conservatives.

The complex dispute to be heard Wednesday began when three white couples who sought to adopt Indian children sued the federal government over ICWA. Later, additional plaintiffs including the state of Texas joined the case, and several Indian tribes intervened to support ICWA.

Texas and the other challengers claim, among other things, that the law’s provision giving preference to Native American adoptive parents over non-Native parents violates the Equal Protection Clause of the 14th Amendment.

“A classic example of so-called ‘benign’ discrimination, ICWA creates a government-imposed and government-funded discriminatory regime sorting children, their biological parents, and potential non-Indian adoptive parents based on race and ancestry,” Texas wrote in court papers.

“Because this Court has recognized that ‘the way to stop discrimination on the basis of race is to stop discriminating on the basis of race,’ such methods violate equal protection.”

ICWA’s passage arose in response to the frequent separation of Native children from their families and communities by state child welfare and private adoption agencies.

According to research conducted around the time of ICWA’s passage in 1978, around 25 to 35 percent of all Native children were removed from their families and placed either into foster homes or with adoptive families or other institutions. Among Indian children in foster care, roughly 85 percent were in non-Native homes, according to a 1969 survey of 16 states.

“This law was passed against a very disturbing and tragic history of the wholesale removal of Indian children from families to assimilate them into white culture based on prejudice about Indian culture,” said frequent Supreme Court litigator Lisa Blatt at a recent legal forum. Blatt argued the 2013 ICWA case on behalf of a non-Native adoptive couple. 

“It started with the Bureau of Indian Affairs putting all these kids in horrendous boarding schools, and then it then transitioned to the ‘60s and ‘70s to state custody removal proceedings,” said Blatt, a partner at the law firm Williams & Connolly.

In practice, ICWA requires that Indian children be placed with members of their extended family or tribe, or other Native American families before outside candidates may be considered.

Ben Kappelman, a partner at the law firm Dorsey & Whitney who has provided pro bono services to a Minnesota Indian tribe in child welfare proceedings, touted the law as a success.

“ICWA, considered the gold standard in child welfare policy, establishes priority for caregivers of Native American children whose parents cannot care for them,” he said.

Supporters of the law say the ugly history that led up to its enactment underscores the enduring need for protections for Indian children and families’ culture.

“ICWA is based on a simple idea: When Indian children can stay with their families and communities, Tribes and children alike are better off,” the tribes wrote in court papers. “By implementing that simple idea, ICWA ‘promotes the stability and security of Indian tribes and families’ and ‘protects the best interests of Indian children.’”

The Justice Department, on behalf of the Biden administration, is arguing in support of ICWA.

The case has the potential to create a split among the court’s conservatives, some experts say. Blatt, of the firm Williams & Connolly, noted that Justice Neil Gorsuch, a Trump appointee, has “consistently ruled” in favor of tribal rights and law.

“I think the assumption is that the United States that’s defending the law with the support of the tribes, has at least four votes, assuming they have Gorsuch’s vote,” she said. “And that leaves the challengers needing to pick up both Justice [Brett] Kavanaugh and Justice [Amy Coney] Barrett.”

A decision in the cases, Haaland v. Brackeen, is expected by summer 2023.

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When You Take Away the Kids, You Take Away the Future

The case that seeks to strike down the Indian Child Welfare Act is about colonialism, not civil rights.

 LISTEN:

 

Adoptive Couple v. Baby Girl #BabyVeronica

 

Baby V (Cherokee)

Fletcher and Fort’s Rewritten Opinion in Adoptive Couple v. Baby Girl

January 8, 2021Matthew L.M. Fletcher

Fletcher and Fort posted “Intimate Choice and Autonomy: Adoptive Couple v. Baby Girl,” forthcoming in CRITICAL RACE JUDGMENTS (Cambridge Univ. Press, eds. Bennett Capers, Devon Carbado, Robin A. Lenhart, and Angela Onwuachi-Willig) (forthcoming 2021).

As if there was any doubt, we have reached the opposite outcome as the Supreme Court did back in 2013. A few excerpts:

This case is about a little girl (Baby Girl) who is a citizen of the Cherokee Nation, like her father, grandparents, and a multitude of generations before her. American Indian tribal citizenship with a federally recognized tribe is a unique concept in American law. E.g., Santa Clara Pueblo v. Martinez, 436 U.S. 49, 55 (1978) (“[Indian tribes] have power to make their own substantive law in internal matters. . . .”). Tribal citizens are beneficiaries of the federal government’s trust relationship with Indian tribes, and the federal government has promised to tribal citizens for centuries to assist in the maintenance of tribal governments, cultures, and sovereignty. Worcester v. Georgia, 31 U.S. 515, 556 (1831) (“[The Cherokee treaty], thus explicitly recognizing the national character of the Cherokees, and their right of self government; thus guarantying their lands; assuming the duty of protection, and of course pledging the faith of the United States for that protection; has been frequently renewed, and is now in full force.”).

And:

The ethically dubious acts of the Petitioners in this case extends to this Court’s amici. Several amici invoked the racist dog whistle of referring to the Petitioners as the “only family” Baby Girl has ever known. E.g., Brief for Guardian Ad Litem, as Representative of Respondent Baby Girl, Supporting Reversal at 56 (“Indeed, it is hard to imagine what liberty interest is more important to a 27-month old child than maintaining the only family bonds she has ever known, absent a strong showing of necessity.”) (emphasis added); Brief of Amica Curiae Birth Mother in Support of Petitioners at 3 (“The decision below effectively negated Birth Mother’s decision to place Baby Girl with Adoptive Couple, and ripped Baby Girl from the only family she has ever known, in derogation of both Birth Mother’s and Baby Girl’s rights and expectations under state law.”) (emphasis added); Brief of Amici Curiae Bonnie and Shannon Hofer; Roger, Loreal, and Sierra Lauderbaugh; and Craig and Esther Adams in Support of Petitioners at 38 (“[T]he lower court took non-Indian Petitioners’ adopted Indian daughter from them – destroying the only family she has ever known.”) (emphasis added); Brief of Amici Curiae National Council for Adoption in Support of Petitioners at 13-14 (“ICWA is implemented in some cases to traumatize children by forcing them into completely unknown environments, traumatizing them by removal from the only family they’d ever felt a connection with and imposing the developmental delays that come with the traumatic removal from a secure attachment.”) (emphasis added).[1] It appears that for some of our amici, the “only family” that matters is the non-Indian Petitioners’ family. For these amici, the Indian family and other biological relatives are strangers and foreigners. The only pain and shame of removal and separation that matters is that of the non-Indian family. It is apparent the “only family” dog whistle is designed to distract our attention from the ever-present bias against Indian parents and relatives in the child welfare and adoption system. This we will not accept. As noted above, this Court long has been complicit in dehumanizing Indian people. In Professor Harris’ words, “[C]ourts established whiteness as a prerequisite to the exercise of enforceable property rights.” Harris, supra, at 1724. No longer. We additionally suspect that this form of advocacy implicates American Bar Association Rules of Professional Conduct 3.4 (Fairness to Opposing Party and Counsel), 3.5 (Impartiality & Decorum of the Tribunal), 4.4 (Respect for Rights of Third Persons), and 8.4 (Misconduct).

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[1] One commentator even referred to the Cherokee family here, who descend from an Indigenous nation that has been present in this hemisphere since time immemorial, as “foreign.” Thomas Sowell, Indian Child Welfare Act does not protect kids, Denton Record-Chronicle, Feb. 1, 2018, at 6A (“This little girl is just the latest in a long line of Indian children who have been ripped out of the only family they have ever known and given to someone who is a stranger to them, often living on an Indian reservation that is foreign to them.”) (emphasis added).

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Use the search word Baby Veronica to find our coverage and opinion on this blog...

How Being Separated From My Family and Tribe Affected Me

APRIL/16/2013 | Indian Child Welfare Act

By Jacqueline Davis, Activist          

Today the Supreme Court will hear Adoptive Couple v. Baby Girl, a case about a South Carolina Indian girl who the South Carolina Supreme Court ruled that the child must be returned to her Indian father. The child's mother ignored the Indian Child Welfare Act (ICWA) of 1978, a federal law designed to protect Indian families from "abusive child welfare practices that resulted in the separation of large numbers of Indian children from their families and tribes through adoption or foster case placement" and, as a result, both the tribe and the father were denied their rights under ICWA.
As the Supreme Court hears this case, the coverage has been largely one-sided. I thought it was important for people to hear my story, and how being separated from my family and tribe has affected me.

My name is Jacqueline Davis. I am one of six siblings affected by a decision made by the state of South Carolina. I am a member of the Cheyenne River Sioux Tribe in South Dakota and my grandfather is Chief Dave Bald Eagle. My father, who is African-American, met my mom and married her while he was stationed in the Air Force. They eventually moved off the reservation to South Carolina. Their lives changed one day when my mother applied for WIC and the nurse realized that she spanked her children as a form of discipline. Their children were taken and placed in foster care. We were split in pairs. The charges were piled on, and our parents lost custody. The Bald Eagle family offered to take us on the reservation and for reasons I still don't know they were told our case had nothing to do with ICWA. I can remember my parents coming to visit us for years.

Read the rest here:
http://www.aclu.org/blog/racial-justice/how-being-separated-my-family-and-tribe-affected-me

KATE FORT: Initial Observations #ICWA #BabyVeronica

Initial Observations on the ICWA Regulations

Posted on June 8, 2016 by Kate Fort

Today’s additions to this post have been added in red text.

The Rule is organized in much the same way as the Guidelines. They do not mirror each other, however. These are just highlights of the actual rule, not the 300+ pages addressing all of the comments, which look to be incredibly useful.
The Department anticipates issuing updated Guidelines in the next six months, before the final rule goes into effect. p.10, “Overview of Final Rule”
The Rule does not use the phrase “existing Indian family”, but pp 90-94 of the text explain that the Rule overrules the application of the EIF through other means:

The final rule no longer uses the nomenclature of the exception, and instead focuses on the substance, rather than the label, of the exception. Thus, the final rule imposes a mandatory prohibition on consideration of certain listed factors, because they are not relevant to the inquiry of whether the statute applies. If a child-custody proceeding concerns a child who meets the statutory definition of “Indian child,” then the court may not determine that ICW A does not apply to the case based on factors such as the participation of the parents or the Indian child in Tribal cultural, social, religious, or political activities, the relationship between the Indian child and his or her Indian parents, whether the parent ever had custody of the child, or the Indian child’s blood quantum.  

Rule at 93.
Highlights:
The definitions of continued custody, custody, and domicile are extensive and helpful, includes tribal custom and tribal law, makes clear that any custody at any time in the past counts as “continued custody” and makes the child’s domicile dependent on the custodial parent, not just mother. 23.2.
The active efforts definition is marginally different than the one in the Guidelines. It does not specifically state they are more or different than ASFA’s reasonable efforts, but it does say they must be “affirmative, active, thorough, and timely”. The list of elements under what active efforts “may include, for example” are also slightly different, and combine some of the Guideline elements (4 in the regs is 9&5 in the Guidelines; 7 is 10&14). 23.2.
The Department’s reasoning regarding ASFA is as follows, though is contrary to how state courts have been comparing the two at the appellate level, and not entirely helpful:

Unlike the proposed rule, the final rule does not define “active efforts” in comparison to “reasonable efforts.” After considering public comments on this issue, the Department concluded that referencing “reasonable efforts” would not promote clarity or consistency, as the term “reasonable efforts” is not in ICW A and arises from different laws (e.g., the Adoption Assistance and Child Welfare Act of 1980, as modified by the Adoption and Safe Families Act (ASFA), see 42 U.S.C. 670, et seq., as well as State laws). Such reference is unnecessary because the definition in the final rule focuses on what actions are necessary to constitute active efforts.

Rule at 50.

“When Does ICWA Apply?” addresses the issue of “continued custody” thrown into doubt by Adoptive Couple v. Baby Girl. It also specifically states a child’s blood quantum may not be considered by the state court. 23.103(c).

State laws that provide higher protections to the rights of the parent control over the regulations. 23.106.

State courts must ask each participant in an emergency or voluntary or involuntary child-custody proceeding whether the participant knows or has reason to know the child is an Indian child. 23.107(a).

A parental request for confidentiality in a voluntary proceeding does not relieve the court, agency, or other party from any duty of compliance with ICWA, including the obligation to verify whether the child is an Indian child. 23.107(d).

Only tribes can determine if a child is an Indian child under the law, that is a final determination that cannot be substituted by the state, and the state can use tribal enrollment documentation (for example) to make the judicial determination a child is an Indian child. 23.108.

A court must determine domicile of the child in any voluntary or involuntary child-custody proceeding. 23.110(a).

If a parent or Indian custodian appears in court without an attorney, the court must inform them of their rights under the law, including the right to appointed counsel, the right to request transfer to tribal court, the right to object to transfer, the right to request additional time, and the right to intervene in the child custody proceedings. 23.111(g).

23.113 Emergency removals (or the Oglala Sioux v. Fleming section) addresses all the requirements of emergency removal including length of time (30 days), how to terminate an emergency proceeding (initiate a proceeding subject to the provisions of ICWA, transfer to the tribe, or send the kid home), and the standard of “imminent physical damage or harm to the child”.

The regs direct state courts what they cannot consider “good cause” not to transfer a case to tribal court, but do not specify what is good cause not to transfer. States cannot consider advanced stage, prior proceedings where there was no petition to transfer, whether transfer will affect placement, cultural connections, and socioeconomic conditions. 23.118(c).

There is no standard of evidence for active efforts (states are still split on this), but similar to the Guidelines, the evidence must show a causal relationship between the particular conditions in the home and the likelihood of serious emotional or physical damage to the child. Evidence with no causal relationship of poverty, isolation, single parenthood, custodian age, crowded or inadequate housing, substance abuse, or nonconforming social behavior does not on its own constitute evidence that continued custody is likely to result in serious emotional or physical damage to the child. 23.121
Who can be a qualified expert witness is fairly vague, but the regulation specifically excludes the social worker regularly assigned to the Indian child from being the QEW. 23.122(c)

The state court must determine if a child is an Indian child in voluntary proceedings, and that determination may mean contacting the child’s tribe to verify. 23.124(b)

Consent to a voluntary adoption largely mirrors the law, but also includes that when a parent request confidentiality, the execution of consent must still be before a court of competent jurisdiction, but not in open court. 23.125(d).

Good cause to not follow the placement preferences must be made on the record, the party seeking to deviate bears the burden of proving good cause by clear and convincing evidence, and may not be based “solely on ordinary bonding or attachment that flowed from time spent in a non-preferred placement that was made in violation of ICWA.” 23.132

The regs do give good cause reasons to depart from the preferences. They include the request of one or both parents if they attest they have reviewed the placement preferences that comply with the order of preference, the request of the child, the presence of a sibling attachment, the extraordinary physical, mental, or emotional needs of the child, and the unavailability of a suitable placement after the court finds a diligent search was conducted. 23.132(c).

Courts should allow participation by telephone, videoconferencing, or other methods. 23.133.
If there are certain changes in an adopted Indian child’s status (the voluntary termination by the adoptive parent, or the final decree of adoption was set aside or vacated), the biological parent, prior Indian custodian, and tribe must be noticed. 23.139. Of course, the child remains an Indian child regardless of the adoption, so ICWA should apply to these situations anyway.

The state must maintain certain records of every voluntary or involuntary foster care, preadoptive, and adoptive placement of an Indian child, including the petition or complaint, all substantive orders, the complete record of the placement determination. That record must be made available within 14 days of a request by the child’s Tribe or the Secretary. 23.141.

PDF PRESS RELEASE

NEW TEETH FOR ICWA? YES!
In my heart, I cannot stop thinking that little Veronica (BABY V) helped us all ... Trace (Pre-ICWA adoptee)

Groups challenging Indian Child Welfare Act lose round in court

Thursday, October 22, 2015 | INDIANZ.COM
 

Indian children in South Dakota. Photo from Lakota People's Law Project

       

A federal judge has dealt an early setback to groups that are challenging efforts to strengthen the Indian Child Welfare Act. Congress passed ICWA in 1978 to prevent the removal of Indian children from Indian homes. But compliance has been uneven so the BIA in February issued guidance aimed at helping state courts and state agencies meet the goals of the law. Non-Indian adoption groups, though, weren't happy with the guidelines even though they do not carry the full weight of a formal regulation. They sued the BIA in May, accusing the agency of taking action without seeking input from the public. Judge Gerald Bruce Lee, however, rejected an attempt by the National Council for Adoption and the Building Arizona Families Adoption Agency to invalidate the new guidance. He noted that the document does not constitute a "final agency action" that can be challenged in court.

Cherokee Nation Chief Bill John Baker discusses an Indian Child Welfare Act case that went before the U.S. Supreme Court in 2013. Dusten Brown, in sunglasses, was forced to give up his daughter after the justices ruled against him. Photo from National Congress of American Indians / Flickr

Assistant Secretary Kevin Washburn addresses the National Congress of American Indians annual convention in San Diego, California, on October 19, 2015. Photo by Indianz.Com

 


Lee also determined the groups lacked standing altogether. As part of comments submitted to the agency regarding a permanent ICWA rule, they already admitted that the guidelines are completely voluntary, he said. "The 2015 guidelines are merely interpretive in nature and impose no obligation unless and until a state court requires compliance with their provisions," Lee wrote in the 17-page decision on Tuesday. Although the ruling does not end the case, the standing issue poses a significant problem going forward. Without a judicially-recognized connection to challenge the BIA, the groups face an outright dismissal of their lawsuit. ICWA, however, remains under attack. Emboldened by the U.S. Supreme Court decision in Adoptive Couple v. Baby Girl, non-Indians are trying to outright invalidate the law, or at least undermine it, through a series of lawsuits. One conservative organization claims the law is unconstitutional because it only applies to children based on their racial heritage.


The BIA also faces opposition to an ICWA rule that would carry the force of law unlike the guidelines. Over 1,800 comments were submitted by the May 18 deadline, according to the docket on regulations.gov. "It is in the best interest of children not to be stolen from their tribal communities," Washburn said on Monday at the National Congress of American Indians annual convention in San Diego, California. "I think that's just a fundamental principle." Pointing to media coverage in publications like the Wall Street Journal, opposition groups are well-funded, Washburn said at NCAI. With slick websites and high-profile lawsuits, tribal advocates believe the law faces serious hurdles in the coming years. "Indian country lost Adoptive Couple v. Baby Girl because the adoption industry won the PR battle before Indian country even noticed. It’s time to act," professor Kathryn E. Fort wrote on Turtle Talk in July after the conservative Goldwater Institute of Arizona filed a class action against ICWA.

 Even though ICWA has been on the books for 35 years, Indian children are still overrepresented in the child welfare system. In South Dakota, for example, 51 percent of children in the foster care system are American Indian or Alaska Native even though Native Americans represent just about 9 percent of the state population. Turtle Talk has posted documents from the case being handled by Judge Gerald Bruce Lee in Virginia, NCFA v. Jewell.

Additional documents from other ICWA cases can also be found on Turtle Talk. Federal Register Notices:
Regulations for State Courts and Agencies in Indian Child Custody Proceedings (March 30, 2015)
Guidelines for State Courts and Agencies in Indian Child Custody Proceedings (February 25, 2015