Rebecca Nagle is a journalist based in Tahlequah, Oklahoma. Her podcast, This Land, won the American Mosaic Journalism Prize in 2020.
Every generation of Americans has seen an effort to undermine
Indigenous sovereignty. The latest attempt heads to the Supreme Court
tomorrow.
In the sprawling federal lawsuit Haaland v. Brackeen, a
handful of white foster parents, among other plaintiffs, are asking the
Supreme Court to overturn a law called the Indian Child Welfare Act.
ICWA was created in 1978 to prevent family separation in Native
communities. When the law passed, about a third of Native children had been removed from their families. But in the lawsuit, far more than the future of Native children is at stake.
When a Native child is up for adoption, ICWA prioritizes placing that
child first with relatives, then other members of their tribe, and then
other Native families. These placement preferences, the non-Native
foster parents claim, give them “fourth-tier status.” Their pro bono lawyer Matthew McGill told the Fifth Circuit that
this was all because “they are not and cannot be, because of their
race, Indian families.” (Notably, in two of the three underlying custody
cases, the non-Native foster parents won custody—when blood relatives
also wanted to raise the children.) Citing the equal-protection clause
of the Fourteenth Amendment, the plaintiffs claim that ICWA violates
their constitutional rights by discriminating against them.
What makes the case tricky is that many people in the United States
think of Native Americans as a racial group. But that is not how
American law works. Under federal law, tribes and tribal citizens are
not a racial group, but a political one. Accordingly, ICWA applies only
to Native children who either are enrolled in a federally recognized
tribe or are eligible based on a given tribe’s citizenship requirements.
Just as certain laws apply to me because I am a citizen of the United
States or a resident of Oklahoma, certain laws apply to me because I’m a
citizen of the Cherokee Nation. Those laws flow from the treaties
signed between my sovereign Indigenous nation and the United States,
established through the same constitutional process the U.S. uses to
sign treaties with Britain or Japan.
A host of federal statutes—including on land rights, water rights,
health care, gaming, criminal and civil jurisdiction, and tribal
self-governance—treat Native Americans differently based on this
political classification. In this light, I fear that the Brackeen lawsuit is the first in a row of dominoes—if the Court strikes down ICWA, everything else could soon go with it.
If ICWA is unconstitutional because it is based on race, then what of
the clinic where I get my health care that serves only tribal citizens?
If ICWA discriminates against non-Native foster parents, what of gaming
regulations that allow tribes to operate casinos where non-Native
casino developers can’t? What “racial group” in the United States has
their own police forces, courts, elections, governments, and lands, as
tribes do? The possible shift is radical. The U.S. has been passing laws
that treat tribes and tribal citizens differently from non-Native
citizens since the founding of the republic. If that is
unconstitutional, the entire legal structure defending the legal rights
of Indigenous nations could crumble.
Despite ICWA’s far-reaching positive impact, it will soon be challenged in front of SCOTUS by those looking to harmfully remove Native kids from their families and communities. Help us spread the word by sharing this post in solidarity. #ProtectICWApic.twitter.com/gYO5iEDduA
The challenge to #ICWA is part of a well-financed, coordinated attack on tribal sovereignty. Through SCOTUS, ICWA opponents could set legal precedent that has serious consequences for other issues such as tribal land rights. Learn more: https://t.co/jFKl05poxQ#ProtectICWAhttps://t.co/BUgjbxC7k7
There have always been critics
of ICWA, many on racially discriminatory grounds. These critics wish to
undercut the legal protections of Native children and to challenge
tribal sovereignty. For example, in the 1950s
a group of conservative congressmen claimed that the “collective rights
of tribes shouldn’t trump individual rights of U.S. citizens.” This led
to seizing Native lands to build businesses and homes for white
Americans. The grounds of this recent petition against ICWA have
similarly skewed logic. The plaintiffs of the case claim they are
victims of reverse racism for being non-Native and that the federal
government is overstepping states’ rights. The phrase “states’ rights”
has historically been used to mask the racist nature of one’s political agenda. The irony, however, is that ICWA was created to prevent further cutural erasure and genocide of Native people which was driven by government policy.
If the Supreme Court finds ICWA unconstitutional, it could lead to further undercutting
of tribal sovereignty and future challenges for the 573 federally
recognized Native tribes. It could also leave Native Americans
vulnerable to attacks on their legal rights and ability to craft
legislation within their tribes concerning housing, education and
healthcare. The desires of Native people and tribes to uphold ICWA must
be respected, and regular U.S. citizens should not be making decisions
on behalf of Native children and affairs. Further, the U.S. government
should not be controlling the decisions and desires of Native tribes
when they have historically committed mass atrocities against them.
Native tribes are not just a racial group, they are a federally
protected and sovereign political identity. The Supreme Court must uphold ICWA for the preservation of Native culture for generations to come.
The Lawsuit About the Indian Child Welfare Act That Isn’t About the Children
In This Episode
Fellow
Crookedian Rebecca Nagle joins to talk about Season Two of “This Land.”
From the “boarding schools” of the 19th century to the good intentions
of the Indian Child Welfare Act — and the big money campaign to repeal
it.
Ana Marie Cox: What you’re telling me, Rebecca, is that there’s money to be made.
Rebecca Nagle: There’s a lot of money to be made. There’s a lot of money to be made.
Ana Marie Cox: [laughs] There’s surprisingly,
there’s deep pockets because there’s deep, you know, dough on the other
side. But I just wanna repeat back to you what I think you said just
because it’s fascinating. And I think I want to make it really clear.
There is some talk, there is some reason that is somewhat about this
case is about kids. OK, fine. But if you dig deep, what you are seeing
is an attempt to establish precedent, to undo almost everything that
exists to protect tribal sovereignty.
Rebecca Nagle: If the Supreme Court took this case
in the broadest way possible and decided it based on the broadest way
possible, it would absolutely set that precedent. And it’s interesting
because you already see some people making that argument in other areas.
So people are already, people have tried and are already making this
like kind of like equal protection, race-based argument in other areas
of federal Indian law. And some people are even doing it based on this
case. And so I don’t think we have to, like, take a wild stretch of the
imagination to see the broader implications of it. And then what I want
to add is that I actually, I actually do think, and this was something
that I was surprised by, that some people are fighting ICWA for
ideological reasons. And that ideology is that our country should not
have laws that are race conscious, should not have laws that are
remedies to structural racism. And the thinking behind that is that the
way to solve racism is to stop talking about race and to pretend like it
doesn’t exist. And so when you look at the people who are attacking
ICWA, a lot of them have also fought things like affirmative action. You
know, it’s some of the same players that were behind the Abigail Fisher
case and now the Harvard case. You know, we talked about the Voting
Rights Act, it’s some of those people. And I think there is this really
deep ideological divide, which I think in some ways is kind of
intellectually dishonest because we can see all the ways that systemic
racism in the child welfare system exists, but any effort to remedy that
is what is unfair. [laughs] I think one of the things that’s very
telling about this lawsuit is that they’re trying to get rid of
something and not trying to build something different. I think if you’re
concerned about children in foster care, there is a lot of reason to be
concerned about the well-being of children in foster care in the
country right now. You know, and there’s also a lot of reasons to see,
you know, there’s a lot of evidence that ICWA actually does a lot of
good. And so, yeah, I think if their end-goal was really helping Native
children, they would be trying to build something, not trying to destroy
something.
Ana Marie Cox: So when I look at this case and your
podcast and what I’ve learned, the case is itself about both children
and the ability of non-Native people to adopt Native children in a echo
of the boarding school, you know, system a little bit, that echoes—not
the same! But it’s Echo. And it’s about who controls the resources in
Native land, Native sovereignty. You know, you can’t oppress a people,
just, you know, but, just in culture or just in economics, it’s both.
It’s always both. You’re always, your oppressing in both these both
these lanes. And it made me start to think about reparations. Which we
talk a lot about in terms of slavery. But I really hear so much less
discussion when it comes to Indigenous people. I mean, hardly any. I
think I’ve talked to one person about it. But this case raises it for
me, because it’s talking about the most precious resources you have in a
community, which is the children, and who were taken.
Rebecca Nagle: Yeah. And I think, you know, when I
interviewed Native leaders, one thing, one thing that more than one
Native leader said to me was, you know, if we can’t protect our
children, then what can we protect? You know, if we can’t, if we can’t
keep our children, then then what else do we have? Yeah, and I think
when it comes to what justice looks like for Indigenous nations, you
know, the slogan or the hashtag or what will you, but the thing that
people are talking about a lot right now is Land Back. And I think that
looks like a lot of different things. And so, you know, Under Secretary
Deb Haaland, she’s trying to make the tribes putting land back in trust
easier. There’s been some proposals that national parks or national
forests should be returned to the stewardship of Indigenous nations. And
I think it’s also restoring sovereignty over the land that we have that
is recognized and really creating a legal reality where tribes, the
inherent rights of our tribes to govern our land, to govern our
citizens, is recognized. And right now, what we have in the United
States, thanks in large part to the Supreme Court, some things that
Congress has done, but mostly the Supreme Court, is that that’s
piecemeal. And so when you look at civil jurisdiction, criminal
jurisdiction, the right of law, the right of tribes to do everything
from taxation, to arrest somebody, from speeding, for speeding it, it’s
very complicated. And I think what we need is a full restoration of
tribal sovereignty and tribal jurisdiction on tribal land and also
restoring land to tribes. And my last thought, not to be too meta, but I
think, you know, as our country faces a growing ecological and climate
crisis, you know, I think that restoration of tribal sovereignty is
going to be critical for all of us, and is what is best for all of us.
You know, there’s the statistic that Indigenous people globally control
about like 5% of the land in the globe, but protect 80% of biodiversity.
And so, you know, Indigenous peoples, we really have the knowledge of
that stewardship that is so desperately needed right now.
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.)
“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.
“(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 ICWALawCenter provides legal services and advocacy to Indian families impacted by the child protection system. ICWALawCenter Suite 104 1730 Clifton Place Minneapolis, MN 55403. Telephone: 612-879-9165 Fax: 612-879-0323 E-mail: info@icwlc.org.
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.
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.
“Confirmed Judges, Confirmed Fears”
is a blog series documenting the harmful impact of President Trump’s
judges on Americans’ rights and liberties. Cases in the series can be
found by issue and by judge at this link.
Trump judges Duncan, Willett, Engelhardt, and Oldham cast deciding votes to invalidate important parts of the Indian Child Welfare Act and try to do even more damage to the important law.
The Native American Rights Fund (NARF), National Congress of American
Indians (NCAI), the National Indian Child Welfare Association (NICWA),
and the Association on American Affairs (AAIA) have stated
that they are “deeply concerned that aspects of this opinion
misunderstand the unique relationship between the United States and
tribal nations.”
Bad history is damaging to all tribes and our children. - Trace
(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.”
The legality of ICWA, as the Act, is now being challenged. It was
created in the 1970's to protect the best interests of Native American
children as well as promote the stability and security of tribes and
families. Texas, Indiana and Louisiana filed suit claiming the law
was unconstitutional because it treated Indian children differently
than every other American child.
READ: Three states say Indian Child Welfare Act, aimed to protect children, should be abolished
Congress today has substantial and sweeping powers over
Native nations and Native people, including the authority to abolish
tribes and tribal reservations, and to expand or restrict tribal
authority. These powers come from a series of Supreme Court decisions in
the late 1800s and early 1900s that were based on racist views about
American Indians—that Congress needed virtually unlimited authority over
American Indian affairs because Natives were not equipped to govern
themselves. The Court reasoned that Natives’ “weakness and helplessness”
gave the federal government “broad domain” over them; later cases
pointed to Natives’ “condition of tutelage or dependency.” Those
decisions gave Congress more power when it comes to Native affairs than
it has when it comes to taxing or spending or regulating interstate
commerce.
But
over time, these cases have come to produce different results. These
same decisions have empowered Congress, in recent years, to protect
Native families from various new and old forms of discrimination,
imperialism, and white supremacy. The U.S. Court of Appeals for the
Fifth Circuit is poised to decide whether that will remain so. It will
hear the case later today.
We’re counting down 10 of the biggest stories The Chronicle of
Social Change published in 2019. Each day, we’ll connect readers with a
few links to our coverage on a big story from this past year.
Forty-one years ago, Congress approved the Indian
Child Welfare Act (ICWA) after years of painstaking research and
activism revealed that up to 30 percent of all Native American
children had been removed from their parents by state and local
governments, and were often placed into the homes of white families.
ICWA has been challenged in court numerous times, most recently in the 2018 case Brackeen v. Zinke,
which called into question the law’s connection to sovereignty as
opposed to race. This year saw a number of developments in the Brackeen case.
Lead Read
Sending Them Home
looks at the only annual memorial event in the nation that honors
Native children lost to boarding schools and foster care. The founder
and lead organizer of the event, long-time activist Frank LaMere, passed away in June 2019.
Intervening Tribes Press Release (released before the Tribal brief with over 400 tribal signatories):
Majority
of U.S. States, 75 Members of Congress and more than 30 Organizations
File Amicus Briefs in Support of Native American Families and Children
WASHINGTON, D.C. – Today, 26 states and the District of
Columbia, 75 members of Congress and more than 30 organizations filed
friend-of-the-court briefs before the Fifth Circuit Court of Appeals in
support of the Indian Child Welfare Act (ICWA)
in Brackeen v. Bernhardt. Cherokee Nation Principal Chief
Chuck Hoskin, Jr., Morongo Band of Mission Indians Chairman Robert
Martin, Oneida Nation Chairman Tehassi Hill and Quinault Indian Nation
President Fawn Sharp issued the following statement
regarding the amicus briefs:
“We are thrilled to see that more than half of all states across the
country, 75 members of Congress and dozens of leading organizations are
taking a stand for the best interests of Indian children and families.
This continuous support from across the political
spectrum is a testament to the critical role that ICWA plays in
promoting the stability and security of Indian tribes and families.
Together, we are fighting back against the meritless attacks on ICWA. We
are confident that the Fifth Circuit will again stand
on the side of families and children by upholding the law.”
The Cherokee Nation, Morongo Band of Mission Indians, Oneida Nation and
Quinault Nation are co-defendants in the case, defending the Indian
Child Welfare Act (ICWA) against unwarranted attacks on the law’s
constitutionality.
For more than 40 years, ICWA has provided a process for determining the
best interests of Indian children in the adoption and foster care
systems. The tribes are arguing to defend ICWA alongside the Trump
administration, the U.S. Department of Justice, and
the U.S. Department of Interior. The case will be reheard on
January 22, 2020.
The amicus briefs filed by the following States – Alaska, Arizona,
California, Colorado, Connecticut, Idaho, Illinois, Iowa, Maine,
Massachusetts, Michigan, Minnesota, Mississippi, Montana, Nevada, New
Jersey, New Mexico, New York, Oklahoma, Oregon, Pennsylvania,
Rhode Island, Utah, Virginia, Washington and Wisconsin – as well as the
District of Columbia, can be found here.
The amicus briefs from members of Congress can be found here,
and the amicus briefs from leading organizations here.
Amici include organizations and political leaders from across the
country spanning the political spectrum, and the U.S. states are
represented by attorneys general from both the Republican and Democratic
parties. They also include law
professors and Native
women writing in support of ICWA.
In 2017, individual plaintiffs Chad and Jennifer Brackeen, a couple from
Texas, along with the state attorneys general in Texas, Louisiana, and
Indiana, sued the U.S. Department of the Interior and its now-former
Secretary Ryan Zinke to challenge ICWA. The
Morongo, Quinault, Oneida and Cherokee tribes intervened as defendants
in the case, and their recent brief
can be found here.
On August 9, 2019, the Fifth Circuit Court of Appeals reaffirmed that
the Indian Child Welfare Act is constitutional and serves the best
interests of children and families. On October 1, 2019, plaintiffs in Brackeen v. Bernhardt chose to continue their
attacks on Indian children and tribal families and requested an en banc rehearing before the Fifth Circuit, which the court granted.
There is broad, bipartisan support against this misguided attack on a
law that is crucial for protecting the well-being of Indian children and
Indian sovereignty. In addition to states and members of Congress, the
Trump administration has strongly defended
ICWA and its protections for Indian children, explaining that ICWA is
an appropriate exercise of Congress’s authority to legislate in the
field of Indian affairs and does not violate the Tenth Amendment or
equal protection laws.
For additional information on this case and the Indian Child Welfare Act please visit: www.ProtectIndianKids.com
Editor's Note: ICWA is the only thing that can prevent more child trafficking in Indian Country - it happened before and it will happen again.
Before the law more than a quarter of American Indian and Alaska Native children were removed from their homes
This
story is like a scary movie. In “Fatal Attraction” Glen Close’s
character won’t give up her murderous quest. She comes back again and
again. The legal challenges to the Indian Child Welfare Act follow a
similar plot line.
The
scene in the 1970’s for American Indian and Alaska Native children was
disturbing, some 25 to 35 percent of the population were removed from
their homes by state welfare and private adoption agencies. This was slow motion genocide by literally removing the future from the home.
The
Indian Child Welfare Act was enacted as to reverse this narrative and
to recognize that tribes, as sovereign nations, have control over the
welfare of their own children.
Attacks
on the law, enacted in 1978, have inexplicably risen in the past seven
years and attracted the support of a seemingly disparate array of high
power ultra conservative players and organizations.
Today’s
challenges to the child welfare protocols aren’t only about adoption
because if the Indian Child Welfare Act is found to be unconstitutional
that would undermine tribal governments. So much is at stake: The
authority of tribal courts, economic nationhood, including casinos, and
the control of tribal land, potentially an opening for fossil fuels and
other extractive industry development.
“Eliminating
ICWA is part of an ultra-conservative agenda to return Indian Country
to the Termination Era, abrogate tribal treaties, and made tribes and
tribal citizens fully subjects to state law,” said former tribal
prosecutor J. Eric Reed.
The
latest Indian Child Welfare Act challenge is again before the 5th U.S.
Circuit Court of Appeals. The court made the unusual decision to vacate
its August 9
decision in Brakeen v. Bernhardt finding child welfare law is not
race-based but a valid, constitutional statute; then the court announced
it would rehear the case En Banc.
The
use of En Banc, in which all judges of a particular court hear a case,
is a relatively uncommon legal procedure usually reserved for the purposes
of maintaining uniformity of the court’s decisions or to show that the
proceeding involves a question of exceptional importance.
In
its original decision finding ICWA to, indeed, be constitutional, one
of the three judges, Priscilla R. Owen wrote her dissenting opinion in
an August 16 modification.
Owen wrote that in requiring states to maintain records relating to
placement of Indian children as part of compliance with Indian Child
Welfare Act violates the constitution’s 10th Amendment
anti-commandeering doctrine. According to the 10th Amendment,
“The powers not delegated to the United States by the Constitution, nor
prohibited by it to the States are reserved to the States respectively
or to the people.”
Owens
wrote: “The defendants in the present case contend that the Indian
Commerce Clause empowers Congress to direct the States as it has done in
the ICWA. They are mistaken. Where a federal interest is sufficiently
strong to cause Congress to legislate, it must do so directly; it may
not conscript state governments as its agents.”
This
opinion underscores the rise of Federalist philosophies in conservative
politics supporting states rights over federal authority, questioning
the constitutionality of requiring state governments to carry out
federal policies.
The
5th U.S. Circuit Court of Appeals long considered the most politically
conservative court in the country, has grown more so after five
appointments to its ranks by President Trump. A total of 17 judges
occupy the court.
According
to federal court watchers, President Trump is engaged in a quiet
revolution to populate federal courts with judges who align with his
brand of politically conservative politics. Although his 157 judicial
appointments place him roughly even with both Barack Obama and George W.
Bush during the same point in their tenures, his focus on federal
appeals courts sets him apart from his predecessors according to the New York Times. If all of his current nominees are confirmed, they will account for 1.4 of the country’s federal appeals court judges.
National Public Radio’s
Carrie Johnson described Trump’s appointment of James Ho to the Fifth
Circuit Court as exemplifying the Trump era. A first time judge, Ho’s
first Fifth Circuit opinion has been described by legal scholars as
political commentary rather than legal opinion. In Zimmerman v. City of
Austin, involving limiting campaign contributions in Austin, Texas, he
wrote in his dissenting opinion, “If you don’t like big money in politics, then you should oppose big government in our lives,”
Vanita Gupta, president and chief operating officer of the Leadership Conference on Civil and Human Rights issued
a statement about Trump’s court nominees: “The majority of his nominees
have long records of hostility to civil and human rights, and too many
are unqualified. Leader McConnell and Senate Republicans are
transforming our federal courts because their agenda is failing in
Congress and the court of public opinion.”
She notes that appointments to the federal judiciary are lifetime positions.
On
October 4, 2018, U.S. District Judge Reed O’Connor of the Northern
District of Texas ruled that the Indian Child Welfare Act is
unconstitutional because it’s race-based.
The
ruling was based on Chad and Jennifer Brackeen, non-Natives, experience
in trying to adopt a Native child, an enrolled citizen of the Navajo
and Cherokee Nations whom they had fostered for a year-and-a-half. In
2017, the Brackeens filed a lawsuit in Texas seeking to adopt the
two-year-old boy, identified in the lawsuit as A.L.M. Although a Navajo
family was available to take the boy in January 2018 the Brackeens won
their case in a Texas district court, and successfully finalized their
adoption. But their lawsuit, Brackeen v. Bernhardt,
proceeded anyway, joined by several other plaintiffs, including the
states of Texas, Louisiana, and Indiana, and eventually landed before
Judge O’Connor.
Most media coverage of O’Connor’s ruling, such as a story by National Public Radio, tended to gloss over the law's political and legal context and the far-reaching implications of its reversal.
Many
failed to mention that conflicts concerning the child welfare system
that can often be traced back to the failure of state and county
authorities to notify a tribe when an enrolled child enters child
protective services. And most neglected to explain that tribal identity
is based not on racial identifiers, or whether a child “looks Indian,”
but on their political and citizenship connections to a sovereign
nation. And that gets at issues that go far beyond the ability of
non-Natives to adopt Native American children.
The
designation that the children of enrolled tribal citizens are
automatically enrolled citizens as well “is foundational to federal
Indian law,” noted a statement
released by the Native American Journalists Association. In March 2019,
the Fifth Circuit Court of Appeals in New Orleans heard oral arguments
in the Brackeen
case and issued its now vacated decision in August finding that the
child welfare law is not race based, unconstitutional nor does it
counter the 10th amendment. If the court finds during rehearing that
ICWA is unconstitutional on any front, it opens the door to overturning
tribal sovereignty.
And without sovereignty, treaties between the U.S. government and tribes could be subject to debate.
Reversing
the Indian Child Welfare Act would mean that “the hundreds and
thousands of federal statutes benefiting Indians would be open for
reconsideration,” said Michigan State University law professor Matthew
Fletcher, a member of the Grand Traverse Band of Ottawa and Chippewa
Indians and editor of Turtle Talk,
the leading blog on American Indian law and policy. “Federal services
for Indians and statutes such as the Indian Self Determination Act,
Indian Gaming Regulatory Act and others could be challenged.”
And
that might be the point. Tribal leaders, legal scholars and child
welfare advocates speculate that attacks on the law are seldom rooted in
genuine concern for American Indian children, but are merely the latest
strategy for right-wing groups to advance agendas rooted in racism,
greed and the othering of poor people.
Since 2013, challenges to the law have gained new urgency and support from wealthy right-wing interest groups. Brackeen v. Bernhardt was
itself bankrolled by an unlikely alliance of right-wing political,
legal, economic and religious groups that outwardly appear to have
little connection to Indian Country or its children. They include
right-wing think tanks, representatives of the private adoption
industry, the evangelical adoption movement, anti-treaty rights
organizations and conservative fossil fuel industrialists.
Although
the final goals of these seemingly disparate groups may differ, their
shared strategy of commodifying Native American children reveals a
colonial mindset that not only depicts Native American people as
incapable of managing their own affairs, but also frames their children
and resources as free for the taking.
According
to J. Eric Reed, former tribal prosecutor and a member of the Choctaw
Nation, the current legal fight is part of a strategy that feeds into
ending the federal government’s trust relationship with tribes as well
as challenging federal authority over states’ rights.
“Brackeen v. Zinke,” said Reed, “is a right-wing foot in the door to rewrite the Constitution.”
Although
the decision to rehear Brankeen v. Bernhardt appears to be based on
Owen’s dissenting opinion that ICWA violates the Constitution’s anti
commandeering doctrine, it will mean all plaintiff’s complaints in the
original case will be up for reconsideration.
The
law’s opponents are emboldened by each small favorable court decision
in their favor. For instance, since 2013, with an infamous lawsuit known
as “Baby Veronica” that reached the Supreme Court, challenges to ICWA
have increased. In the Baby Veronica case—formally called Adoptive Couple v. Baby Girl—powerful
interests in the adoption industry and evangelical churches joined with
high-profile attorneys to challenge ICWA’s authority regarding the
adoption of an infant citizen of the Cherokee Nation named Veronica.
Eventually the non-Native couple seeking to adopt Veronica, Matt and
Melanie Capobianco, prevailed.
Although
the court found that ICWA was, indeed, constitutional, it found in
favor of the Capobianco’s because the child’s Native father had not
maintained custody since her birth. Not long after the Supreme Court
ruled in the Capobiancos’ favor, Veronica’s non-Native biological
mother, Christina Maldonado, signed onto a lawsuit against the U.S.
government claiming that ICWA was unconstitutional. (She later dismissed
the suit voluntarily)
“ICWA
opponents want another crack at the Supreme Court,” said Nicole Adams
of the Colville Confederated Tribes and advisor at the Partnership for
Native Children.
“Redefining ICWA as race-based furthers their final agenda of dismantling Indian law as a whole,” she said.
Chiracahua
Apaches arriving at the Carlisle Indian School, 1886, and after
"training" in 1886. From the Records of the Office of the Chief Signal
Officer (National Archives)
The Roots of the child welfare act
Most
people in the U.S. have never heard of the Indian Child Welfare Act,
enacted in 1978 to stop the near wholesale removal of Native American
children from their birth families to non-Native foster and adoption
placements. Today, under that law, tribes typically try to place
children who come into tribal or state care with a family member, a
member of their tribe or, failing that, a family from another tribe.
“Typically,
the mainstream press picks up a story regarding ICWA only when a
non-Indian family has somehow been injured,” said Terry Cross, founding
director and current advisor for the National Indian Child Welfare
Association
But
the law stems from generations of abusive policies that tore Native
American families apart. Beginning in the late 19th Century, the federal
government forced or coerced the separation of thousands of Native
children from their families, sending them to federal or religious
boarding schools often many hours away from their homelands.
Created
as part of President Ulysses S. Grant’s Peace Policy of 1869, the
boarding school era was framed as a bloodless, more humane answer to the
country’s “Indian Problem.” The schools’ explicit mission was to
destroy Native cultures, languages, and spirituality, and prepare the
children for assimilation into American society. Modeled on education
tactics used on Native prisoners at Fort Mason in the 1870s by Captain
Richard H. Pratt, the boarding schools followed a punitive philosophy of
rigid order and Pratt’s motto: “Kill the Indian, and save the man.”
Today, Native American and Alaska Natives remain overrepresented in foster care at a rate 2.7 times greater than their proportion in the general population.
It’s
these dynamics that ICWA was created to address: helping ensure that
tribes, as sovereign nations, have jurisdiction over their own children.
Since the act’s establishment, several prominent child advocacy
organizations have declared it the gold standard for child welfare
policies and practices for American Indian children.
Despite
the law, tribes often decide not to transfer eligible children to
tribal jurisdiction for a number of reasons: that the child may have
close tribal and family connections in a non-Indian placement, or the
tribe may lack the resources to intervene in cases located far from the
reservation. Notably, in the Brackeen, the tribs ruled in favor of the
non-Native family’s adoptions. These scenarios, however, seldom receive
media coverage.
There is little data regarding states’ compliance with Indian Child Welfare Act, but a 2015 study by Casey Family Programs
suggests that many government child protection agencies fail to follow
the law. The lack of federal oversight for enforcing ICWA adds to gaps
in compliance.
“For
years, under ICWA, tribes have been making determinations in child
welfare cases based on the best interest of the child,” noted law
professor Matthew Fletcher. “Suggesting that tribes don’t routinely make
child welfare decisions based on the best interest of the child is just
ignorant.”
The
legal battle over ICWA will likely continue for several years, and
Fletcher and others believe that future challenges are inevitable.
Termination of tribal sovereignty
From
the mid-1940s through 1970, the federal government employed a series of
assimilationist policies designed to privatize American Indian lands,
destroy tribal cultures, and reverse the tribes’ and government’s “trust
relationship,” which protects tribal treaty rights, lands, assets, and
resources.The assault on this trust responsibility and Indian rights
became known as the Termination Era.
But the 2018 ruling Brackeen v. Bernhardt, Judge O’Connor seemed to endorse the anti-tribal government view that it’s a race-based statue.
“If
you’re a right-wing interest group and can figure out a way to get the
case heard in Judge O’Connor’s court, you can expect a sympathetic ear,”
Fletcher said.
The
leading figures in the newest anti-Indian Child Welfare Act drama
include the right-wing think tank the Goldwater Institute; the National
Council for Adoption, representing the private adoption industry; and an
evangelical Christian adoption movement that sees adoption as a means
to live out their faith.
Ancillary supporters include the Koch brothers; the DeVos family; the Mercer Family (who are among Trump’s largest donors); the Cato Institute; the American Legislative Exchange Council (ALEC); the anti-treaty group Citizens Equal Rights Alliance which advocates for the termination of U.S. and tribal treaty agreements; the Southern Baptist Convention, and others.
“It’s
like this weird triad of strange and powerful bedfellows,” said Adams.
Some of the players may have unwittingly signed on to this war and don’t
necessary share the duplicitousness of others. But their combined
opposition to ICWA represents titanic influence, power, and money in
service of an anti-tribal sovereignty agenda.
One of the richest anti-ICWA funders is the Goldwater Institute.
Since 2015, the libertarian non-profit has underwritten several legal
challenges to ICWA. Attorneys at the Goldwater Institute filed an amicus
brief in Brackeen v. Bernhardt,
reiterating its past claims that ICWA is race-based and
unconstitutional. And Timothy Sandefur, the Institute’s vice president
for litigation, compared ICWA to discrimination suffered under Jim Crow
laws, telling The Nation in 2017 that ICWA subjects Native children to an unfair set of rules based on race.
The Institute, along with the Cato Institute and the Texas Public Policy Foundation filed an amicus curiae brief supporting the current Fifth Circuit’s decision to hold En Banc hearings on ICWA.
The
Institute describes Indian communities as environments “where poverty,
crime, abuse and suicide are rampant,” and cites data showing that
American Indian children have the highest rate of foster care of any
ethnic group as an argument against ICWA. In essence, this blames
American Indians for the outcomes of generations of federal
assimilationist policies and recommends more of the same as a solution.
And
yet, as Fletcher noted, “The Goldwater Institute has no history of
expressing interest in either Indian or family law.” Although the
Goldwater Institute has created an organization called Equal Protection
for Native Children and frequently works with other ICWA opponents such
as the Cato Institute, it has no history of working to improve the
economic, educational, or health circumstances of Native children.
Indeed, according to the organization’s income tax filing from 2016, its primary areas of research include constitutional law, education reform, and healthcare policy.
Among the Goldwater Institute’s major donors are the Koch
brothers, well-known opponents to federal power and spending. Through
their various advocacy organizations, the Koch brothers fund and support
groups such as ALEC, which, like the Goldwater Institute, has called
for a constitutional convention that would focus on elevating states’
rights and reducing federal oversight and regulation.
The other ally against the child welfare law the National Council for Adoption, and the adoption movement it represents. Matthew McGill, the lead plaintiffs’ attorney in Brackeen v. Bernhardt, is part of a husband-and-wife legal team with a long history of challenging the Indian Child Welfare Act.
McGill’s
wife, Lori Alvino McGill, also a lawyer, represented the adoptive
parents and the non-Indian biological mother in the Baby Veronica case
,accompanying them on a media tour, including an appearance on the Today Show that helped make their challenge to ICWA a national story.
The couple represent a larger constituency in the private adoption industry,
which has become a powerful lobby against ICWA. Private adoptions are a
lucrative business, with attorney fees routinely running between
$10,000 and $40,000. But as obstacles to international adoptions have
grown, there is a greater interest in domestic adoptions in the U.S.—including adoptions from Indian Country.
Many
clients of private adoption attorneys like the McGills are members of a
Christian adoption movement that encourages evangelicals to see
adoption as a means to live out their faith help the needy, and
evangelize children. The statement of faith for Nightlight Christian
Adoptions — the agency affiliated with the Baby Veronica case — holds
that adoption fulfills the Bible’s mandate to make disciples of all
nations.
Practicing Christians are more than twice as likely to adopt than the general population, according to a 2013 study by the Barna Group. The study also found that most adoptive parents are White, while the children they adopt are overwhelmingly non-White.
For
many Native Americans, these demographics bear a troubling resemblance
to historical interactions between White Christians and Native
peoples—whether the Catholic Church’s 15th Century documents granting
European Christian explorers permission to use any means necessary to subdue and convert indigenous peoples, or the more recent abuses of the boarding school era.
“There
is nothing original about some of the evangelical Christian adoption
movements to focus on Native children and take it upon themselves to
decide what’s best for Native families,” said the Partnership for Native
Children’s Nicole Adams.
Sandy White Hawk, program manager with the Indian Child Welfare Act Law Center in Minneapolis, and a team of researchers, found
that adult American Indians who were adopted to non-Indian parents
experienced high rates of sexual, physical, and emotional abuse in their
adoptive families. Adoptees also experience traits common to trauma
survivors such as anxiety, intrusive imagery or nightmares, depression,
withdrawal/isolation, guilt, and unresolved grief. The National Indian
Child Welfare Association also cites studies
indicating that Indian children placed in non-Indian adoptive homes
suffer a far greater risk than the general American Indian population of
psychological damage and have a higher tendency to abuse drugs and
alcohol.
“I
believe some of the motivation for evangelical Christians to adopt
American Indian children comes from a savior complex,” said White Hawk.
“Minority populations are often portrayed as unable to care adequately
for their children; some of the adoptive parents may believe they are
offering homes for unwanted, neglected children.”
But
too often, then as now, this impulse may spring from a failure to
understand American Indian culture or extended family structure, wherein
aunts or uncles might raise a child instead of her biological parent.
As child welfare workers labeled that tradition as neglect, generations
of Indian children were removed from their homes.
“Instead
of saving Native families, these policies robbed them of the nurturing
traditional values where the whole community embraced the child,” said
Nicole Adams. “Who are these people to think they can take away ICWA,
one of the few good things Native people have to protect our families?”
What’s next?
“Right
now we know one judge from the panel (Owen) was concerned about one or
two sections of the statute, but not its entirety. It may be the En Banc
court will re-open the whole panoply of constitutional challenges; We
just don’t know yet,” said Matthew Fletcher.
Amicus
briefs are due December 16 and January 14, 2020. Oral arguments and
case hearing are scheduled in New Orleans for the week of January 20,
2020.
Mary
Annette Pember works as an independent journalist focusing on Indian
issues and culture with a special emphasis on mental health and women’s
health. Winner of the Ida B. Wells Fellowship for Investigative
Reporting, Rosalynn Carter Fellowship for Mental Health Journalism, the
USC Annenberg National Health Fellowship and Dennis A. Hunt Fund for
health journalism she has reported extensively on the impact of
historical trauma among Indian peoples. She has contributed to
ReWire.News, The Guardian, The Atlantic and Indian Country Today. An
enrolled member of the Red Cliff Band of Wisconsin Ojibwe, she is based
in Cincinnati, Ohio. See more at MAPember.com.
Portions of this article first appeared in Public Eye Magazine on November 11, 2019 for Political Research Associates
