A decision by the Washington Supreme Court said that state courts should not determine whether a child has tribal membership.
Citing the devastating history of the government-sponsored destruction of Native families, the Washington Supreme Court ruled Thursday that courts must use “a broad interpretation” in determining whether children facing removal from their parents have American Indian heritage.
Doing so means that more protective state and federal standards apply to these cases, which are intended to preserve Native American families and communities, as well as the sovereignty of their tribes.
The decision, while nonbinding outside Washington, may well have influence in other states, said Shannon Smith, executive director of the ICWA Law Center in Minneapolis, which was not a party to the case. “For example,” Smith said, “the Minnesota Supreme Court could look at it as, here’s what our peer thinks, and in that way it can have persuasive value.”
The unanimous decision was written by Justice Raquel Montoya-Lewis, a member of the Pueblo of Isleta and Pueblo of Laguna tribes from New Mexico. She is the first Native American on the Washington Supreme Court, and reportedly only the second in the nation.
The Washington case, filed earlier this year, centered on two young boys, ages 2 and 21 months, who were removed from their parents’ custody in 2018 due to concerns of neglect and unsanitary living conditions. Both parents of the boys, identified as M.G and Z.G., said they had Native heritage, and the mother believed they were eligible for tribal membership.
But the trial court determined – and the appellate court upheld – that the federal and Washington State Indian Child Welfare acts (ICWA and WICWA) did not apply to the proceeding because the trial court had no “reason to know” the boys were “Indian children.”
If a court has a “reason to know” a child is or may be Native, according to Washington state and federal laws, it must notify the involved tribes of the proceeding. The laws state that a child is an “Indian child” if he or she is a tribal member, eligible for tribal membership or has a biological parent who is a tribal member. The lower courts interpreted this to mean that the boys were not Native.
The Supreme Court – citing the trauma to individuals and tribes resulting from the removal of Native American children from their parents and the history of state courts undermining ICWA protections – adopted a broad interpretation of “reason to know.”
Noting that tribal membership and eligibility vary widely from tribe to tribe, the opinion said that it was the tribe’s exclusive role, and not the state’s, to determine who is a member. This interpretation, the court said, is supported by the language and implementation of the law and serves the underlying purposes of the state and federal Indian Child Welfare acts.
“State courts cannot and should not attempt to determine tribal membership or eligibility,” the court wrote. “This is the province of each tribe, and we respect it.”
The decision also said that the history of abusive removals without notice to tribes and the historical failure of state courts to provide due process to Native American families means that some tribal members may not know their tribal affiliation. But this doesn’t mean they don’t qualify under the law as American Indian.
In Washington state, where Native children are almost five times more likely than white children to be removed from their parents’ care, the decision pointed out that the state has work to do to strengthen enforcement of the Indian Child Welfare act protections.
The court cited a 2017 study published in the American Indian and Alaska Native Mental Health Research Journal showing that adoptees from those communities are more vulnerable to mental health problems than white adoptees, including depression, alcohol and drug addiction and suicidal ideation and attempts.
Sandy White Hawk, one of the authors of the study and a national expert on the adoption trauma of Native children, said she was thrilled with the court’s citation of the study.
“We’ve been telling our stories forever,” said White Hawk, a Sicangu Lakota adoptee from the Rosebud Reservation in South Dakota. “But it isn’t until we have this research that the court will actually believe us.”
There are about 10,000 children currently in foster care in Washington. According to the court, as of 2015, Native American children were represented in foster care at a rate of 3.6 times greater than the general child population.
“In Native American communities across the country, many families tell stories of family members they have lost to the systems of child welfare, adoption, boarding schools, and other institutions that separated Native children from their families and tribes,” Montoya-Lewis wrote in her Thursday opinion. “This history is a living part of tribal communities, with scars that stretch from the earliest days of this country to its most recent ones.”
The way to rectify that historic injustice, she wrote, is through ICWA and in Washington, the law known as WICWA.
“These are baseline protections, passed as a step toward rectifying the horrific wrongs of widespread removal of Native children from their families and states’ consistent failure to provide due process to tribes.”