Tag: Navajo Nation

Will the US Supreme Court End the ICWA ?

Within my all things adoption group, I have become aware of the Indian Child Welfare Act, as one outspoken member has brought us awareness of this. The Indian Child Welfare Act was passed to redress years of mass separations of Native families.

In custody battles involving criminality and other race spouses, Native rooted children can find themselves removed over legal involvement and then removed again over abuse, ending up in and out of group homes and rehabilitation centers, and often eventually landing in foster care.

On November 9th, the Supreme Court will hear oral arguments in Haaland v Brackeen, a case challenging the constitutionality of the Indian Child Welfare Act. Designed to keep Native American children in their communities during custody, foster care and adoption proceedings, ICWA was passed in 1978 in response to the mass separations of families that had been customary since the 19th century. Many Native American activists are worried for the future of ICWA, given the rightwing composition of the supreme court.

Some history – In 1860, the Bureau of Indian Affairs opened the first of what would become more than 350 American Indian boarding schools, with the intention of “civilizing” Native American children – an assimilationist policy regarded by many as “cultural genocide” today. By the 1920s, nearly 83% of school-age Native American children were enrolled in boarding schools, where a government report found they were malnourished, overworked, harshly punished and poorly educated. As boarding school attendance increased into the 1960s and 70s – peaking at 60,000 in 1973 – the US government rolled out another program, called the Indian Adoption Project. It ended up placing 395 Native American children from western states with white families in the midwest and east coast.

By the 1970s, data showed that 25% to 35% of Native children had been removed from their families during the boarding school era, leading to the passage of the Indian Child Welfare Act in 1978. According to the law, states are required to follow protocols when handling certain custody cases involving a Native child, including involving the tribe in the proceedings. Perhaps most notably, ICWA also establishes a placement preference system, requiring child welfare agencies to try to keep Native children within their communities – by placing them, for example, with extended family or with a foster family in their own tribe – to ensure that they do not lose ties to their heritage.

Despite ICWA’s existence, the law has often gone unenforced. That’s in part because there is no federal oversight agency monitoring compliance. Although the Bureau of Indian Affairs released guidelines designed to improve enforcement in 2016, tribal officials say that state welfare agencies regarded them as suggestions that were not legally binding.

Therefore, regarding this Supreme Court case – in 2016, a 10-month-old Navajo and Cherokee boy was fostered by a white Texas couple, Chad and Jennifer Brackeen, who ultimately adopted him. When the Navajo Nation was alerted to the case and stepped in to place the child with a Navajo family, the Brackeens sued.

The Supreme Court is set to hear arguments on November 9 2022 and eventually decide these questions related to the Haaland v Brackeen case – does the ICWA discriminate on the basis of race and does the law supersede a state’s right to control child custody placements ? The Brackeens and their supporters argue that ICWA violates the constitution’s equal protection clause, discriminating against them as a white family, and imposes unlawful requirements on states. The federal government and Native advocates say that Congress may enact laws that apply to states in order to uphold its treaty obligations, and that Native Americans belong to a political class based on their sovereign status, not a racial group. Overturning ICWA would reshape the legal relationship between the federal government and Indian tribes.

Many states are now enshrining ICWA in their state law. To date, ten states have codified ICWA – and eight have added provisions to augment it. Native-led coalitions in other states are working to do the same.

The Indian Child Welfare Act

A lawsuit filed by a non-Native American couple in Texas claims the ICWA discriminates on the basis of race and infringes on states’ rights. It will be heard by the U.S. Court of Appeals for the 5th Circuit.

The federal law, passed in 1978, mandates that states prioritize placing Native American children up for adoption with members of their family, their tribe or other Native American families — a remedy to policies that had previously empowered the government to take native children from their parents without cause and eradicate their tribal identity.

The Texas couple, Chad and Jennifer Brackeen, sued the U.S. Interior Department in 2017 after their petition to adopt a Native American toddler they had fostered for more than a year was challenged in state court. Texas Child Protective Services had removed the boy, called A.L.M. by the court, from the custody of his paternal grandparents and placed him in foster care with the Brackeens.

He lived with them for 16 months, according to court documents. They sought to adopt him with the support of his biological parents — members of the Navajo Nation and Cherokee Nation — and his paternal grandparents. The ICWA requires, however, that a child’s tribe be notified before an adoption placement is approved.

The Navajo Nation located a nonrelative Native American family in New Mexico willing to adopt the boy, though that placement ultimately fell through. The Brackeens eventually successfully petitioned to adopt A.L.M. and are trying to adopt his younger sister.

In October 2018, a federal judge in the Northern District of Texas agreed that much of the ICWA is unconstitutional. Defendants in the case, include the federal government and the Morongo, Quinault, Oneida and Cherokee tribes. They have appealed that decision.

The Circuit Judge, James L. Dennis, wrote that the ICWA aimed to classify children not by race, but by politics. The definition of “Indian child” under the law is broad, he wrote, and extends “to children without Indian blood, such as the descendants of former slaves of tribes who became members after they were freed, or the descendants of adopted white persons.”

In a statement affirming ICWA intentions, tribal leaders wrote –

“We never want to go back to the days when Indian children were ripped away from their families and stripped of their heritage.”

The ICWA was passed in 1978 in response to what was viewed as a family separation crisis for American Indian and Alaska Native communities. Studies showed that 25 to 35 percent of all native children were being removed, and of them, 85 percent were placed in homes outside their families or tribes. This happened even when suitable family members were willing to foster or adopt.  Those trends followed decades of mistreatment of Native American communities by the U.S. government.