“We will not go back to a time when our children were stolen from our communities without cause.”
These were the determined words on Monday of Charles Martin, chairman of the Morongo Band of Mission Indians. Martin joined other tribal leaders and legal professionals at a virtual press conference to express support for the 1978 Indian Child Welfare Act, which faces a challenge next month before the U.S. Supreme Court.
California’s Morongo Band of Mission Indians is one of five tribes that have intervened in the Brackeen v. Haaland case, scheduled for oral arguments Nov. 9. The tribes spoke out this week alongside leaders of the Oneida Nation of Wisconsin, the Quinault Indian Nation of Washington, the Cherokee Nation of Oklahoma and the Navajo Nation.
They want more attention paid to the vital role played by the law known as ICWA, which requires that child welfare systems take extra measures to maintain the bond between Native children and their families, kin and tribes. The law was passed to counteract centuries of attempts at cultural genocide through forced boarding school attendance, excessive removals into foster care and adoption into non-Native homes.
Three sets of white foster parents say the law hindered their ability to adopt Native children. They are at the center of the Brackeen v. Haaland case challenging ICWA, along with the states of Texas, Louisiana and Indiana. The plaintiffs argue the law is race-based and denied the foster parents equal protection. They also argue states should not be forced to comply with ICWA, and that Congress overstepped its authority in passing the law, which turns 44 years old the day before the Supreme Court challenge.
Chairman Martin emphasized the overwhelming number of ICWA supporters who have filed amicus briefs to the Supreme Court, including 497 Indian tribes, 62 American Indian organizations, 87 members of Congress, 23 states and Washington, D.C. They say the law must be upheld to maintain the best interests of sovereign nations and their children.
“It’s really frustrating that we’re having to fight again,” Martin said. “Tribes could lose the right to have a voice in the care of their children.”
Kimberly Cluff, legal director of the California Tribal Families Coalition, and Kathryn Fort, director of Michigan State University’s Indian Law Clinic, joined the tribal leaders in highlighting contingency plans to provide protections against Indigenous family separation should the ruling expected next year favor the plaintiffs. The plans include promoting state-level ICWA laws and ensuring that tribal justice systems are fully funded.
Cluff cited a recent study by the Capacity Building Center for Courts, a partnership between the American Bar Association, the National Council of Juvenile and Family Court Judges, and the National Center for State Courts. The study found when tribes were able to intervene in child welfare cases early on, children spent less time in the foster care system — “upwards of over 100 days fewer than if the tribe was not involved,” she said. “That tells us that ICWA is a benefit to children in the system.”
Prior to ICWA’s enactment, Native children were routinely wrenched from their homes through foster care and adoption, as well as forced attendance in the more than 400 government-run residential schools. All told, the impact resulted in one-third of all American Indian children removed from their families and tribes.
‘It would be a tragedy’
At Monday’s press conference, Chairman of Oneida Nation, Tehassi Hill, condemned the false narrative surrounding the Brackeen v. Haaland case.
“It would be a tragedy if we lose a widely supported, wildly successful child welfare law because of a misleading campaign of political attacks,” Hill said. “Despite what those seeking to overturn this law might claim, ICWA is not simply about keeping Native children out of non-Native homes above all else.”
He went on to state that ICWA prioritizes keeping tribal children with their families and gives tribes a voice in court, but also seeks to find safe homes, “even if the family is non-Native.” Sometimes, he added, “the tribes and all parties agree that a non-Native home may be the best for the child.”
ICWA’s defenders include a coalition of more than two dozen state prosecutors representing states from Arizona to Rhode Island that collectively account for 86% of all federally recognized tribes. In their amicus brief, the attorneys general write that their states disagree on many things, “but we all agree that ICWA is a critical — and constitutional — framework for managing state-tribal relations and for protecting the rights and stability of Indian children, families, and Tribes.”
All this means higher stakes for the law that hinges on the ability of tribes to remain independent, sovereign political entities, in a working, treaty-based relationship with the federal government.
Under the threat posed to ICWA by the Brackeen v. Haaland case, “tribes have a lot to lose,” chairman Hill said. Tribes could lose the right to be notified of abuse and neglect cases that involve their members and to provide input in the decisions made in the cases. They could also lose ICWA’s requirement that the high standard of “active efforts” be applied, ensuring parents the supportive services they need before their legal rights to their children are terminated.
Without ICWA protections, Hill added: “We would return to a time where our entire history and heritage was at risk of being lost.”
While the Principal Chief of Cherokee Nation Chuck Hoskin was not present, the tribe’s deputy attorney general Chrissi Ross Nimmo read a statement on his behalf, saying that overturning ICWA would lead to widespread harm across Indian Country.
“Administrations, Congress, tribes and states know that a ruling overturning ICWA could mean a level of disruption and upheaval in tribal communities unforeseen for decades, as well as tremendous disruption in tribal-state relations and for families in the state foster care system,” Hoskin’s statement said. “It will hurt our children and our families but it will also be responsible for creating chaos in areas extending far beyond child welfare.”
The legal experts who joined the tribes in Monday’s briefing pointed to still broader implications and harm to tribal communities, if ICWA is partially or fully overturned.
A pending court case focusing on the constitutionality of the Indian Gaming Regulatory Act in Washington state also claims the federal law violates equal protection. That legal challenge to gaming on tribal lands threatens a vital revenue source needed to build independent tribal infrastructure that the federal government doesn’t provide. The plaintiffs in the case are represented by the same international corporate law firm representing the foster parents in the Brackeen case, Gibson Dunn & Crutcher.
Deputy Chief Counsel for Oneida Nation Jim Bittorf said Monday that it will be easier for his tribe, which has a “very good relationship” with Wisconsin, a state that has its own version of ICWA. But that leaves states without federally recognized tribes — or tribes located within states that haven’t implemented a state ICWA-type law — with an uncertain future resting on the highest court’s ruling.
Fort, director of the Michigan Indian law clinic, noted that while it’s impossible to predict the outcome of the Brackeen case, she said ICWA has a “severability clause,” meaning “if there is a portion of the law that struck down, the whole law is not necessarily struck down.”
That said, she added that a full overturn is “one possibility.”