Federal law to protect Indigenous families from separation is about to be sent to the U.S. Supreme Court, where the 41-year-old law could be changed – threatening tribal sovereignty.
And while child welfare is the specific issue at the heart of the matter, tribal advocates argue that the real goal of the massive effort to overturn the law is an erosion of tribal sovereignty for the sake of it. special interests, especially the extractive industries, in the hope of profiting from tribal lands.
Last month, the state of Texas, four tribes, several non-Native relatives and the Office of the Solicitor General of the United States formally asked the United States Supreme Court to decide whether the federal law on the protection of the Indian childhood conforms to the Constitution.
The law Prioritizes the placement of Indigenous children in the foster system with extended family or Indigenous communities to the extent possible.
The case, Brakeen v Haaland, stems from a 2018 Texas federal court ruling that declared ICWA unconstitutional for racial discrimination against non-Indigenous families in the placement of Indigenous children .
A couple from Texas have filed a lawsuit after seeking to adopt a Navajo child.
This decision was later overturned by a panel of three judges from the Fifth Circuit. The case was then considered by the 17 judges of the Fifth Circuit in a rare ‘en banc’ meeting, which resulted in a complicated and confusing final decision.
Nearly 200 tribes say the law is not based on race but on the rights of tribes as sovereign nations and political entities.
In a brief Before the Supreme Court, tribes argue that they have governance over all matters that affect their citizens due to their sovereign status recognized by the federal government, including matters that affect their children and families.
Tribes maintain that preserving Indigenous children’s relationships with their families and tribes is in the best interests of the children. It also helps protect their legal status and “political identity” as a Native American, making them eligible for several federal benefits, the brief says.
Indian Child Protection Act
Congress passed the Indian Child Welfare Act of 1978 in response to the massive removal of Indigenous children from their families by public and private child welfare agencies at far higher rates than non-Indigenous children, often without due process.
A report by the Association on American Indian Affairs at the time found that in the 1970s, Indigenous children were placed in foster care up to 20 times more than non-Indigenous children. Most of these children were then placed in non-native foster homes.
“The challenges to ICWA in this litigation are intended to diminish ICWA’s protections and undermine the unique trusting responsibilities that the United States owes to Indian children and Indian tribes,” read the brief at support of the law.
“If you look at the story of the kids who came out of their homes and placed in these boarding schools, that’s where it all started,” said Amber Torres, president of the Walker River Paiute tribe, who signed the tribal brief. in defense of ICWA.
“Indian children must stay within indigenous communities and indigenous homes,” Torres said.
Torres called the efforts to dismantle ICWA and tribal sovereignty a “blatant slap.”
“Our sovereignty and our children’s due process rights are being challenged,” Torres said. “We have to be at the table to decide what is best for our children and their future. The tribes know best and our people know best. It must be honored. “
The final decision of the Fifth Circuit judges is complex and upheld some aspects of ICWA while invalidating others.
An important ICWA provision that was struck down was the requirement that courts “actively endeavor” to keep Indigenous children with their families and reunite them if they are separated from their parents.
The removal of central tenets from 41-year-old federal law has baffled Torres, president of the Walker River Paiute tribe.
“What disturbs me is that these laws have been set in stone for as long as I can remember,” Torres said. “The state needs to reach out to these tribes and see if we want to get involved and see if we can find someone who can accommodate the child in these reservations and our respective homelands. And that’s not being honored right now. Why? What is the rationale for this?
Advocates fear the case will undermine the foundation of federal Indian law which views tribes as political entities rather than racial groups.
Tribal advocates warn that if key aspects of ICWA are canceled, it could not only remove protections for indigenous children, but also open the door to multiple legal challenges designed to undermine tribal protections, from environmental protections to India’s Gaming Regulation Act governing tribal casinos.
The attack on “established law” has raised questions and criticism from children’s rights groups, including the National Indian Child Welfare Association.
“It would certainly benefit certain interest groups if Indian federal law were weaker and if tribes could not easily exercise their sovereignty or protect their lands and rights. You just have to wonder if this is a much bigger problem than ICWA’s, ”said David Simmons, director of government affairs and advocacy for the association.
The case has caught the attention of powerful interest groups, including the Goldwater Institute, a conservative think tank who supported the 2018 trial. The Goldwater Institute was involved in 13 cases challenging ICWA for the past six years.
The Texas family attorney who filed a lawsuit against ICWA also includes large international law firm Gibson, Dunn & Crutcher, according to the court request. This company represented the Dakota Access pipeline, a multibillion-dollar project that is expected to transport half a million barrels of oil per day.
“As they challenge India’s child welfare law, the kinds of arguments they put forward – which have been in place for over 200 years – really seem to raise the question of whether it s This really is Indian Child Welfare Act or Indian Child Welfare Act. an attempt to break Indian federal law? Simmons said.
Not all Indigenous child separations are historic, Simmons said. The National Indian Child Welfare Association found that 15 states have a disproportionate number of indigenous children in the foster care system. In Minnesota, Indigenous children are placed in foster care up to 16 times more than non-Indigenous children. Nationally, Indigenous children are on average nearly three times more likely to be placed in foster care systems.
“The bias still works. We still need these protections for Indigenous children and families, ”said Simmons.
Simmons said attempts to challenge ICWA are unwarranted, calling ICWA a “gold standard” in child protection policy. Federal law has become an essential tool in protecting Indigenous children and fostering state-tribal collaboration, according to a brief signed by Nevada, 24 other states and the District of Columbia.
“As recognized in treaties with the United States, the Constitution, and 200 years of federal law and court affairs, the inherent sovereignty of the tribes is clear,” Simmons said. “Indian Child Protection Law recognizes their right to be involved in child protection issues affecting their tribal citizens. “