BAD OUTCOMES: Brackeen Case | New York Times and #ICWA

 reblog from 2019

By Trace Hentz (blog editor)

FIRST UP:  The New York Times headline June 5, 2019:   

Who Can Adopt a Native American Child? A Texas Couple vs. 573 Tribes

Here

 

I posted my comment which became a NYT Pick:

I am an adoptee and journalist who has documented the history and narratives of Native adoptees in three Lost Children anthologies. If the Brackeens had done any research prior, they would know the outcomes for Native adoptees are not good. Adoption gets pretty ugly when it doesn't work. Once kids are out of diapers, they start noticing and feel the isolation without kin. There are medical terms for our damage. The adoption industry will not advertise that most patients in psychiatric care are adoptees. They don’t warn adoptive parents their new child will suffer from “Severe Narcissistic Injury” or “Reactive Attachment Disorder.” This news would not be welcome. LINK

Of course some readers slam me for using the word "kin" ...or ask how do I know about the damage we suffer...  No shock... I get it: they don't get it and they don't know the history or the Native adoptees I  know personally... (There were 775 comments before they shut it off today and many are amazingly correct!)

An earlier comment from Ellen gets it:

This country has a long brutal history of removing Native children from their families with the intent of culture genocide. There is nothing different about this case. I am sure that the Brackeens are lovely (wealthy) people who care for Zachary, and the new baby they selfishly wrested from her family. Still, it does not undo the damage done to the Navajo nation, in losing 2 precious children, not to mention the damage done to the children in growing up apart from their culture...while being quite different in appearance from the rest of this family. But skin color is not the issue - the erasure of culture and sense of self is.

After reading the NYT story I am not surprised that the Navajo tribe and the Brackeens will share custody, as Judge Kim declared, but the Brackeens would have primary possession.  Taking Indian children off the rez and changing their identity to white and ending their sovereignty and treaty rights and a connection to tribal lands:  the old playbook is the new playbook.  

It is always about possession.

We have covered this case on this blog for the past few years. (please look at Goldwater Institute (34+ posts) for more insight on this case.)
 

Hundreds of tribal nations vehemently oppose the lawsuit Brackeen v. Bernhardt that splits Texas, Indiana, Louisiana and a coalition of conservative legal groups, including the Goldwater Institute, against the federal government, hundreds of tribal nations, 21 state attorneys general, Native American civil rights groups and child welfare organizations, including the Annie E. Casey Foundation and the Children’s Defense Fund.

The NYT story reports:

So much remains suspended.

The decision about the act’s fate from the Court of Appeals for the Fifth Circuit is imminent.

The Navajo are appealing Judge Kim’s custody order. 

What about the BRACKEENS:

Potential Adoptive Parents (PAPS) Chad and Jennifer Brackeen might want to learn Navajo history during this lengthy court battle in Texas. (Try this one in 2011: Illegal aliens? Deported adoptees?)

The total population of the Navajo people residing in their land is approximately 180,462 having a median age of 24 years old.   Navajo Nation is situated over a 27,000 square miles of large land within the vicinity of the state of Arizona, Utah and New Mexico. It is considered to be the largest land that is primarily covered by the jurisdiction of the Native American within the territory of the United States.

What most people don't know:  The Navajo are survivors of a barely-known Mormon assimilation program from 1947 to the mid-1990s. 

Year after year, missionaries of the Church of Jesus-Christ of Latter-day Saints approached Navajo families and invited children into Mormon foster homes.  As part of the Mormon Indian Student Placement Program, children would live with Mormon families during the school year to “provide educational, spiritual, social, and cultural opportunities in non-Indian community life,” according to the Church.  

Typically, the Mormon foster families were white and financially stable.  Native American children who weren’t already Mormon were baptized.  Although the LDS Church reached out to dozens of Indian tribes, most participants’ families lived within the Navajo Nation.

Roughly 50,000 children participated in the Mormon Indian Student Placement Program, according to Matthew Garrett, a professor at Bakersfield College.

Rather than improving conditions on the Navajo reservation, the LDS Church asked that children assimilate to the way its white members lived.  Some Church leaders interpreted the Book of Mormon literally and expected that Native American children’s skin would turn lighter as they grew closer to God.  

The Church now admits that not all Native Americans are descendants of the Israelites, or Lamanites, as described in the Book of Mormon.   (Oh really, thanks)

In addition to the claims of damage done by sexual abuse, the lawsuits involving the Indian Student Placement Program assert that the culture of the Navajo Nation was “irreparably harmed” by the LDS Church’s “continuous and systematic assimilation efforts.” Although the last student in the Indian Student Placement Program graduated in 2000, plaintiffs are asking the Church to do all it can to enhance and restore Navajo culture and create a taskforce for that purpose.

SOURCE:  

Why Several Native Americans Are Suing the Mormon Church

Participants in the Church-sponsored Indian Student Placement Program have filed at least three sexual-abuse lawsuits. Lilly Fowler Oct 23, 2016

***

Practices of adopting Native American children directly followed the residential/boarding schools.  Such adoption practices, which came into fruition through forms such as the forced removal of Native American children during Canada’s 60s Scoop and its parallel in the United States, the Indian Adoption Projects, exemplify the adaption of adoption as a settler colonial tool for dispossession and disenfranchisement. 

***

Narragansett author John C Hopkins wrote about his Navajo mother in law on his blog:

Chilocco Indian School opened in 1884 with 123 students. Its first graduating class was comprised of six boys and nine girls. The school finally closed its doors in 1980. The name Chilooco comes from the Choctaw word “chiluki” and the Cherokee word “tsalagi,” which means “cave people” in both languages.

A long, hard-used tarred road turns off Route 166 and ends where the abandoned, ivy-covered stone buildings stand in disrepair haunted by the ghosts from memories past.

Bernice Austin-Begay, a Navajo, recalled the long ride down the road when she was a child returning to school after a rare family visit.

“I’d be sad because I knew it would be a long before I would see them again,” Austin-Begay, Class of 1965, said. “I’d be thinking about my family, thinking about my sheep.”

Austin-Begay was 10 when she was first taken to Chilocco. More than 50 years later she still recalls the day the government agents came to Black Mesa, Ariz. and took her away.

“I was captured,” she said.

Many Indian families resented how the government swooped in and took the children away from their families and did all they could to thwart the Bureau of Indian Affairs. Austin-Begay’s family was one of those. Whenever her mother saw a car coming up the road she would send Bernice running, to hide in the hills until the “biliganas” left. (Biligana is the Navajo word for white man)

But one day the car arrived unexpectedly and young Bernice never reached the woods.

“I was too slow,” Austin-Begay said.

**

'CATASTROPHIC AND UNFORGIVABLE'
Starting in 1958, the Indian Adoption Project placed Native American children in non-Native homes, in what it said was an effort to assimilate them into mainstream culture and offer them better lives outside impoverished reservations.
The project was run by the U.S. Bureau of Indian Affairs, a federal government agency, and the nonprofit Child Welfare League of America, in partnership with private agencies.

 There was a reason Indian leaders went to the Senate in the 1970s and demanded an inquiry into the staggering number of children disappearing in Indian Country. It was not just boarding schools creating this mass exodus of children. Adoption programs in 16 states removed 85% of Native children. Programs like the Adoption Resource Exchange of North America (ARENA), established by the Child Welfare League of America in 1967, funded in part by the Bureau of Indian Affairs, paid states to remove children and place them with non-Indian adoptive families and religious groups like the Mormon Church.  ARENA expanded to include all Canadian and United States adoption agencies and offered them financial assistance.  

ICWA (the Indian Child Welfare Act) prioritizes placing Native children into Native homes or with kin or with families that are willing to keep them within a certain proximity to their cultures.

***

Associate Attorney General Tony West Delivers Remarks at the National Indian Child Welfare Association’s 32nd Annual Protecting Our Children Conference ~ Monday, April 14, 2014

 "...There's more work to do because every time an Indian child is removed in violation of ICWA, it can mean a loss of all connection with family, with tribe, with culture.  And with that loss, studies show, comes an increased risk for mental health challenges, homelessness in later life, and, tragically, suicide."

READ

Battle Pits Native American Tribes Against White Couple Over Adoption of Native Child in Case With Potential Affirmative Action Implications

THE ROOT
(to be continued)

Federal ICWA lawsuit remains a case to watch despite split decision in 5th Circuit Court of Appeals

 LISTEN

 

A lawsuit challenging the Indian Child Welfare Act received a split decision in federal appeals court on April 6, 2021. The law, the lawsuit and the split resulted in a 300-plus-page decision that confounded experts and lay people alike. The decision won’t impact Alaska directly. But legal experts  say Alaska should still keep an eye on the case.

The Indian Child Welfare Act, or ICWA, basically provides Tribes with an opportunity to intervene when state child welfare and adoption agencies consider whether or not to remove a Native child from a home. The children can be enrolled citizens of the Tribe or be eligible for membership status. 

Alaska Native Justice Center policy director Alex Cleghorn says ICWA was passed in 1978 in response to the disproportionate removal of Native children from their homes, families and communities.

“They were primarily being placed in the homes of non-Native people and growing up without a connection to their culture or to the communities,” said Cleghorn, who worked as a Tribal attorney for much of his career, is a citizen of Tangirnaq Native Village and serves on the board of directors for Koniag Incorporated regional Native corporation. “I believe the Alaska Native culture is something that is a strength."

The Alaska Native Justice Center is an advocacy organization that provides Alaska Native people with direct services in education, victim advocacy, Tribal court assistance and more.

(Disclosure: The Alaska Native Justice Center, KNBA and Koahnic Broadcast Corporation are tenants of Cook Inlet Tribal Council.)

What is now Brackeen v. Haaland began in 2018 as a lawsuit in Texas that challenges ICWA. The lawsuit says the federal law discriminates against non-Native families looking to adopt.

“They seem to believe that being a Native person is solely a racial classification, which ignores many years of precedent and legal rulings that as a Native person, our relationship with our Tribe is that of a citizen who works in government.”

Erin Dougherty Lynch is a staff attorney at Native American Rights Fund, a nonprofit legal organization that holds the U.S. governement to its treaty obligations with Tribes as well as laws that affect Native people. Lynch works on a variety of federal Native issues including Tribal jurisdiction, sovereignty – and child welfare.

She says the plaintiffs in the Brackeen case argue that ICWA is a law based on race: “That it's a race-based law that provides preference to extra services to Native children, to provide preferences to Native families, which should be struck down by the Supreme Court on an equal protection ground.”

But Lynch says ICWA, along with the bulk of federal Indian policy, is grounded in a political relationship between governments – between federal and Tribal governments, and between Tribes and their citizens.

ICWA is a federal law that establishes a floor-level basis for reviewing Native child adoption cases. Some states passed their own ICWA laws, but those laws must offer additional benefits – not change or remove the application of federal law: “States can never do less than what's in the federal law, but they can always do more,” Lynch says. 

For example, Washington state has its own ICWA law.

Alaska does not have a state ICWA law. In 2017, then-Governor Bill Walker’s administration championed and signed a child welfare compact between the state and many Alaska Tribes.

“(Compacts are) another kind of tool that we've had in Alaska where Tribes are working, have compacted on a government-to-government relationship with the state government and with the goal of providing more culturally appropriate services to children in the state's child welfare system.”

Tribal leaders often testify at Alaska Legislature hearings that Alaska Native children are over-represented in the foster care system.

According to the Alaska Tribal Child Welfare Compact (2017), even though Alaska Natives represent less than 20 percent of children in the state, they make up more than half the children placed in foster care.

Cleghorn says the Brackeen case illustrates that more states should be looking at state-based ICWA protections.

“If the federal law is going to continue to be under attack, it may be time to look at a state equivalent to ensure that we continue to recognize Tribes recognized as the gold standard in child welfare and protection, and that those protective factors of having children connected to their culture, the Tribes and their families are important and should be enshrined in law.”

The Brackeen lawsuit worked its way to the United States Court of Appeals for the Fifth Circuit, which covers the federal judicial district in Louisiana, Mississippi, and Texas.

A three-member judges panel heard the case and upheld the constitutionality of ICWA, but with partial dissent. That allowed the plaintiffs to request and receive a full bench – or en banc – decision.

Sixteen judges split down the middle and wrote a 325-page decision. Because of the split, Lynch says the decision largely impacts cases in that district’s region – and wouldn’t affect Alaska directly.

Alaska Native Justice Center policy director Cleghorn is also confident the split decision should not impact ICWA cases in Alaska or in states that are outside of the Fifth Circuit.

“I also think it's important to keep our eyes open for those of us who do work in this area and represent Tribes in this area, because sometimes there are misguided attempts to import reasoning or to import reasoning or decisions that may not apply,” Cleghorn said. 

For now, legal experts and Tribes will keep an eye on the Brackeen case, and will be on the lookout for others, Lynch said.

"Certainly, if the case ends up going up before the United States Supreme Court, what the Supreme Court determines will have an effect in Alaska. But right now, you know, state and Tribal child welfare workers who are involved in state child welfare cases don't have to worry about this opinion."

But Lynch says it is possible that Alaska Native children living in the Fifth Circuit could be affected.

“When you start talking about places that are in states that are in the Fifth Circuit, like Texas and Louisiana and Mississippi, then the whether the case applies is a maybe,” Lynch said. “Which I know might be sort of unsatisfying, but there are sort of these general principles that federal courts don't necessarily tell state courts what to do. And so it sort of depends state-to- state as to whether or not this is going to have precedential effect in the Fifth Circuit. But for our purposes in Alaska, we we can ignore this decision for now.”

The legal experts and attorneys following the case worked to unravel its many threads and how each one would impact ICWA or their understanding of the case and law.

“It definitely took us a few days to sit down and, like, sort it all out,” Lynch said. “We literally had to map out every issue that had been brought up in the case and then sit down and go through all of the opinions and see how folks had come down. I know the court in those first few pages did issue like a per curiam opinion where they tried to give a synopsis of where the whole thing had come down. But you still really have to sit down and go through it all. And it's complicated for the lawyers.”

The Native American Rights Fund helped publish a one-sheet flow chart to help people determine whether the decision impacts their case. 

"I guess my takeaway is that the worst did not happen, which is good," Lynch said. "But there are still pieces of this opinion that are not great."

Source: Federal ICWA lawsuit remains a case to watch despite split decision in 5th Circuit Court of Appeals

 

READ MORE:

 

Indian Child Welfare Act Law Center | Legal Service and ...

www.icwlc.org

The ICWA Law Center provides legal services and advocacy to Indian families impacted by the child protection system. ICWA Law Center Suite 104 1730 Clifton Place Minneapolis, MN 55403. Telephone: 612-879-9165 Fax: 612-879-0323 E-mail: info@icwlc.org.

 

State Statutes Related to the Indian Child Welfare Act

https://www.ncsl.org/research/human-services/state-statutes-related-to-indian-child-welfare.aspx

Six states (Iowa, Michigan, Minnesota, Nebraska, Oklahoma and Washington) have enacted their own Indian Child Welfare Act, adopting provisions from the federal ICWA in whole or in part. Other states have adopted some provisions, most commonly, the definition of "Indian child" and the notification requirements.

 

A Guide to Compliance with the Indian Child Welfare Act

https://www.nicwa.org/wp-content/uploads/2016/11/Guide_ICWA_Compliance.pdf

The Indian Child Welfare Act passed into law in 1978. The law protects American Indian and Alaska Native (AI/AN) children in state child welfare systems and helps them remain connected to their families, cultures, and communities.

 

 

What Does The #ICWA Ruling Mean For The Mountain West? For Now, Not Much

By Savannah Maher • Apr 20, 2021| The Mountain West News Bureau | Tribal News

The Indian Child Welfare Act still stands, with some of its key provisions weakened by a sharply divided U.S. Fifth Circuit Court of Appeals this month. The 325-page opinion has no immediate impact on child welfare cases in the Mountain West, but it's likely to be challenged in the U.S. Supreme Court.

Since 1978, ICWA has required that tribal nations have a voice in adoption, foster care and custody proceedings involving their youngest citizens. The federal law was intended to reverse a long legacy of federal and state agencies forcibly removing Indigenous children from their families and communities.

Initially filed in 2017, the lawsuit - Brackeen v. Bernhardt then, Brackeen v. Haaland now - took aim at ICWA's constitutionality, arguing that its preference for placing Indigenous children in Indigenous adoptive and foster homes violated the equal protection clause. Thirty tribal governments in the Mountain West and the states of Colorado, Utah, Montana and Idaho urged the court to reject that argument. Ultimately, the Fifth Circuit's en banc ruling did just that.

"After this decision, and even if this decision stands, most of ICWA is constitutional," said Dan Lewerenz, an attorney with the Native American Rights fund.

Lewerenz said the court upheld what tribes have always asserted, that ICWA is based not on race, but on a child's political status as a tribal citizen. But the court narrowly ruled that certain provisions of the law, including its mandate that Indigenous children be placed with Indigenous foster parents when possible, intrude on the authority of states.

"[The Native American Rights Fund] disagrees with those holdings," Lewerenz said. But he added that the ruling does not impart any "precedential value" requiring other courts to follow suit.

"It really only applies to the Brackeen case," he said. "Any other court, state or federal, is open to reject those holdings. It is of little significance outside of this specific litigation."

 

Still, if any of the lawsuit's plaintiffs succeed in appealing the case, the U.S. Supreme Court's decision will be binding for courts across the United States. And a Supreme Court rejection of ICWA's constitutionality would have ripple effects for other parts of federal Indian law.

For that reason, Governor Phillip Perez of the Nambe Pueblo, a tribe in northern New Mexico, called the Fifth Circuit's ruling "deeply concerning."

"The Indian Child Welfare Act was enacted to protect the best interests of Indian children and to promote the stability of our tribes, our customs and traditions. This decision by the Fifth Circuit threatens who we are as tribal people and undermines our tribal sovereignty," Perez wrote in a statement.

New Mexico State Rep. Georgene Louis, who also serves as general counsel for the Pueblo of Tesuque, agrees.

"With all the challenges that have been made [to ICWA], it could be eroded. And some of the protections that ensure reunification with a child's tribe might not be there anymore," Louis said.

In New Mexico's recent state legislative session, Louis sponsored a state statute that would have ensured that many of ICWA's provisions were followed in state court proceedings regardless of the federal law's status. But that bill died in committee. In light of the Fifth Circuit ruling, Louis said codifying ICWA statutes at the state level should be a priority.

 

READ MORE:

Brackeen v. Bernhardt - Indian Child Welfare Act - Native ...

https://www.narf.org/cases/brackeen-v-bernhardt/

Brackeen v. Bernhardt is the lawsuit brought by Texas, Indiana, Louisiana, and individual plaintiffs, who allege ICWA—a federal statute that has been in effect for more than 40 years and has helped thousands of Native children maintain ties to their families and their tribes—is unconstitutional.

How Native Tribes Started Winning at the Supreme Court

(excerpt) The Tribal Supreme Court Project is already working on a Firth Circuit case concerning the Indian Child Welfare Act, which Hedden-Nicely calls “the single most important issue for Indian Country today.” Brackeen v. Bernhardt asks whether ICWA, through which Congress granted tribes priority in deciding foster care placements for Native children, violates an alleged Constitutional restriction on “racial preferences.” A judge ruled in 2018 that overturning the law would violate tribal sovereignty. Hedden-Nicely thinks the case isn’t really about children but is just one of many “unrelenting attacks on the idea that Indians have any special status under the law.”
He doesn’t expect the Supreme Court, which has already twice upheld ICWA, to hear the Brackeen case. And if it did, given recent trends, it’d be unlikely to decide against tribes.“At a time where Congress is not being particularly helpful on Indian policy, and the executive is being actively antagonistic, it’s very comforting to have at least one branch of government acting in a way that’s consistent with their trust responsibility to Indian tribes,” says Hedden-Nicely. When the court sides with Congress and the president in ignoring tribal sovereignty, “bad things start to happen.”

GOOD READ: How Native Tribes Started Winning at the Supreme Court – Mother Jones

How a white evangelical family could dismantle adoption protections for Native children- VOX

The federal court case could have a sweeping impact on Native families and tribal sovereignty.
This cultural difference — that a family’s fitness is determined by its wealth, and that those concerns should outweigh a child’s connection to their family and heritage — is essentially why the Indian Child Welfare Act was created in 1978. The law recognizes the history of federal policy aimed at breaking up Native families and mandates that, whenever possible, Native families should remain together.

Sarah Kastelic, the executive director of the National Indian Child Welfare Association, said that ICWA acknowledges important familial and tribal bonds that have long been disregarded, and that Native ways — such as extended families living under the same roof — have often been used to show unfitness in child welfare proceedings. “No matter the picket fences and swimming pools and things, most of the time, kids want to be with their families,” she said.

READ: The Native adoption case that could dismantle the Indian Child Welfare Act, explained - Vox

Oklahoma Bar Journal Article on the Constitutionality of #ICWA

Turtle Talk Blog

by Matthew L.M. Fletcher

Whatever one believes about Native Americans as a racial archetype, however, is not relevant to an adequate under-standing of Indian status as a legal phenomenon. Judge O’Connor and others fail to grasp that concept. 

By Austin Vance, starting on page 12, here.

Indian Child Welfare Act is Leading the Way on Child Welfare Practice

January 22, 2020 Christine James-Brown

Photo: iStockphoto

Child welfare is a complicated and varied system. Most people, who have not worked in the field of child protection, foster care and adoption — the child welfare system — are not familiar with the many services and practices involved. But anyone can understand that, fundamentally, child welfare practice should be governed by the question: “What is in the best interest of this child?”

Right now, that question is being put to the test in one of the most controversial federal court cases this year. Last August, the Fifth Circuit Court of Appeals agreed to rehear oral arguments in Brackeen v. Barnhardt, a case challenging the constitutionality of the federal Indian Child Welfare Act, or ICWA. In 2018, a federal judge in Texas ruled ICWA unconstitutional, in contrast to decades of precedent and deep, bipartisan support for the law.

My own organization, the Child Welfare League of America, is among the hundreds of child welfare groups that heartily supports ICWA for a simple, obvious reason: because it enables state child welfare agencies and courts to act in the best interest of Native American children.

ICWA requires that state courts consider the relationship that Indian children have with their extended family, siblings and community. While the first priority in an effective child welfare system is to limit the separation of children from parents whenever possible and to encourage reunification after a separation has occurred, that is unfortunately not always possible or safe. The next best option is placing children with their extended family.

Experts consider ICWA practices as universal best practice standards in child welfare because ICWA requires that states consider the cultural context of tribal nations and their citizens. According to federal data, American Indian and Alaska Native children have the highest rate of kinship care (also known as living with relatives) among different populations in foster care.

ICWA’s requirements ultimately serve the best interest of children in stability, relational permanency and community connections. Children living with relatives are less likely to be moved multiple times to other caregivers and more likely than those living in non-relative foster care to be successfully reunified with their parents, among other beneficial outcomes. ICWA’s placement preferences, requiring that children live with extended family if possible, promotes this outcome.

The welfare of our children is too important for us to risk dismantling a system widely acknowledged to be best for children. Placing value on familial and community ties makes a difference in the well-being of children. My firsthand experience advocating for children, and supporting child welfare agencies in developing and implementing best practices and policies for child welfare decision-making, tells me that the U.S. District Court’s conception of the best interest served by ICWA was far too narrow.

What is it that we as a nation, a society, as communities and families, need to do to keep children safe, healthy, and able to reach their full potential? Systems can only work to the extent that the community supports them. Because evidence shows that ICWA’s framework achieves better outcomes for children, it should be no surprise that Congress increasingly has encouraged state child welfare frameworks to look more like ICWA to the benefit of all children. The system should reflect the community and it should reflect ICWA, the “gold standard” in child welfare. If anything, we should do more to support ICWA and use it as an example for improving other child welfare laws.
ICWA’s placement preferences work. They help to keep children connected to family, community and culture. Let’s not destroy a legal success story that has helped the lives of countless children and families, and should continue to do so for decades to come.
_________________________________________________________________________________________
Christine James-Brown is the CEO of the Child Welfare League of America.