Photo by Robin Bravender | Arizona Mirror
A federal law to protect Native families from being separated is on a likely path to the Supreme Court where the 41-year-old law could be upended, threatening tribal sovereignty.
And while child welfare is the specific issue at the heart of the case, tribal advocates fear the real goal of the deep-pocketed effort to overturn the law is an erosion of tribal sovereignty to benefit special interests, particularly extractive industries, hoping to profit from tribal lands.
Last month, the state of Texas, four tribes, several non-native parents and the Office of the U.S. Solicitor General formally asked the Supreme Court to decide whether the federal law is in line with the Constitution.
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Now scores of tribes have filed briefs with the Supreme Court to protect the federal law known as the Indian Child Welfare Act, which prioritizes placement of Native children in the foster system with extended family or Native communities whenever possible.
The case, Brakeen vs. Haaland, stems from a 2018 Texas federal court decision that ruled ICWA unconstitutional for race-based discrimination against non-native families in the placement of Native children after a Texas couple seeking to adopt a Navajo child filed a federal lawsuit.
That decision was later reversed by a Fifth Circuit panel of three judges. The case was then eventually taken up by all 17 judges on the Fifth Circuit in a rare “en banc” convening, which resulted in a complicated and muddled final decision.
Nearly 200 tribes, including 11 from Arizona, say the law is not based on race but on the rights of tribes as sovereign nations and political entities.
In a brief to the Supreme Court, tribes argue they have governance over all matters that affect their citizens due to their federally recognized sovereign status, including matters that affect their children and families.
Tribes maintain that preserving Native children’s relationships with their families and tribes is in the children’s best interest. It also helps protect their legal status and “political identity” as a Native American that renders them eligible for several federal benefits, the brief says.
History provides a counterargument to dismantling ICWA. Congress passed the Indian Child Welfare Act of 1978 in response to the wholesale removal of Native children from their families by state and private child welfare agencies at rates far higher than those of non-native children, often without due process.
A report by the Association on American Indian Affairs at the time found that by the 1970s Native children were removed to foster care as much as 20 times more than non-Native children. Most of those children were then placed in non-Native foster homes.
“The challenges to ICWA in this litigation seek to diminish ICWA’s protections and undermine the unique trust responsibilities the United States owes to Indian children and Indian Tribes,” reads the brief.
Arizona has its own history of separating Native children from their homes and families to forcibly send them to boarding schools to strip them of their language, culture and religion.
“If you look at the history of children being taken out of their homes and placed in these boarding schools, that’s where it first started,” said Amber Torres, chair of Nevada’s Walker River Paiute Tribe, who signed onto the tribal brief in defense of ICWA.
“Indian children need to stay within Native communities and Native homes,” Torres said.
Torres called efforts to dismantle ICWA and tribal sovereignty “a blatant slap in the face.”
“Our sovereignty and our children’s due process rights are being challenged,” Torres said. “We have to be at the table to decide what’s best for our children and their futures. Tribes know best and our people know best. That needs to be honored.”
The final ruling by the Fifth Circuit judges is complex and upheld certain aspects of ICWA while striking others down.
One important provision of ICWA that was struck down was the requirement that “active efforts” be made by courts to keep Native children with their families and reunify them if separated from their parents.
Removing central tenets of the 41-year-old federal law has baffled Torres.
“What perturbs me is that these laws have been written in stone for as long as I can remember,” Torres said. “The state has to reach out to those tribes and see if we want to get involved and see if we can find someone who can take the child in on these reservations and our respective homelands. And that is not being honored right now. Why? What’s the justification for that?”
Advocates worry the case could undermine the bedrock of federal Indian law which views tribes as political entities rather than racial groups.
Tribal advocates warn that if key aspects of ICWA are overturned it could not only eliminate protections for Native children, but also open the door to multiple legal challenges designed to undermine tribal protections, from environmental protections to the Indian Gaming Regulatory Act governing tribal casinos.
The attack on “settled law” has raised questions and criticisms from child advocate groups, including the National Indian Child Welfare Association.
“That would certainly benefit some interest groups if the federal Indian law was weaker and tribes couldn’t exercise their sovereignty easily or protect their lands and rights. You just have to wonder if this is about a much bigger issue than just ICWA,” said David Simmons, director of government affairs and advocacy for the association.
The case has drawn the attention of powerful interest groups including Arizona’s Goldwater Institute, a conservative think tank that backed the 2018 lawsuit. The Goldwater Institute has been involved in 13 cases challenging ICWA in the last six years.
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Counsel for the Texas family who filed the lawsuit against ICWA also includes the massive international law firm Gibson, Dunn & Crutcher, according to the court petition. That firm represented the Dakota Access pipeline, a multibillion-dollar project estimated to carry half-a-million barrels of oil per day.
“While they are challenging the Indian Child Welfare Act the kinds of arguments they are bringing forward — which have been settled law for well over 200 years — really seems to raise the question if this is really about the Indian Child Welfare Act or is this about some attempt to break down federal Indian law?” Simmons said.
The separations of Native children aren’t all historical, Simmons said. The National Indian Child Welfare Association found that 15 states have a disproportionate number of Native children in the foster care system. In Minnesota, Native children are removed to foster care as much as 16 times more than non-native children. Nationwide, Native children are on average nearly three times as likely to be in state foster care systems.
“The bias is still operating. We still need those protections for Native children and families,” Simmons said.
Simmons said attempts to challenge ICWA are unwarranted, calling ICWA the “gold standard” in child welfare policy. The federal law has become a critical tool for protecting Native children and fostering state-tribal collaboration, according to a brief signed by Nevada, 24 additional states and the District of Columbia.
“As recognized by treaties with the United States, the Constitution, and 200 years of federal law and court cases, tribes inherent sovereignty is clear,” Simmons said. “The Indian Child Welfare Act recognizes their right to be involved in child welfare matters affecting their tribal citizens.”
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