By JOSEPH MARTIN
ONE FEATHER STAFF
FORT WORTH, Texas – The future of a law designed to help ensure the survival of tribal cultures and place Native American child custody decisions in the hands of tribes is in jeopardy. The federal Northern District Court of Texas ruled Thursday, Oct. 4 that the Indian Child Welfare Act (ICWA) is unconstitutional. Judge Reed O’Conner, an appointee of President George W. Bush (R), stated that the law is a race-based statute and that the law requires state courts to enforce a federal law.
The law placed issues of Native American child custody under the jurisdiction of tribes, and its intent was to protect the integrity of Native American families and culture. The law gave preference to tribes and the children’s families when it came to placement of native children.
In his order for the case of Brackeen v. Zinke, O’Conner wrote, “Plaintiffs argue that the ICWA and the Final Rule implement a system that mandates racial and ethnic preferences, in direct violation of state and federal law.”
He also argues that the law places tribes and states in the position of enforcing a federal law, particularly relating to determining whether a child is a native child (usually it’s if the child qualifies for enrollment). O’Conner wrote that congress in passing the act lacked the authority, despite the Interstate Commerce Clause of the U.S. Constitution. “The court declares that (federal code related to native child custody proceedings, record keeping and availability and portions relating to the interactions between tribes and states) are unconstitutional.”
Federal Code, in relation to placement of Native American children states: “Congress has declared that it is the policy of this nation to protect the best interests of Indian children and to promote the stability and security of Indian tribes and Indian families by the establishment of minimum federal standards to prevent the arbitrary removal of Indian children from their families and tribes and to ensure that measures which prevent the breakup of Indian families are followed in child custody proceedings.”
Plaintiffs in Brackeen v. Zinke argue that ICWA amounts to racial discrimination in that preference in adoptions and child placement is given to families and relatives who are members of a child’s tribe. The Goldwater Institute, an organization that advocates for limited government, economic freedom, and individual liberty, intervened on behalf of the plaintiffs. It argued that Native American children are being denied equal protection under the law through ICWA. “Today’s decision is a great victory for the rights of Native American children throughout the United States, who deserve the same strong protections against abuse and neglect as their peers of other races,” said Timothy Sandefur, Vice President for Litigation at the Goldwater Institute, which litigates ICWA cases. “ICWA denies them that protection and prioritizes their race over all other considerations. That’s immoral, and today’s decision rightly holds that it’s also unconstitutional.”
United South and Eastern Tribes (USET), of which the Eastern Band of Cherokee Indians is a member, called the ruling cruel in a statement. USET President Kirk Francis, who is also Chief of the Penobscot Indian Nation, “Because of this decision, many of our children, who should be raised in their native culture, are going to be raised in non-Indian homes. This is deeply distressing and a total violation of all the promises the Federal government has made to protect our communities.”
USET maintains because Congress has authority on Indian affairs that no federal Indian law has ever been struck down because of equal protection concerns. USET also says the ruling rejects well settled case law that establishes tribes as a political rather than racial status.
“This decision is wildly outside the main stream of Federal Indian law,” said Francis. “It will not only harm Native children and Native families, but it literally could call into question many other Federal actions taken to help Tribal Nations and Native peoples. It feels like a final betrayal. “There is literally nothing we value more than our children. This inhumane decision cannot stand.”
The National Congress of American Indians, Native American Rights Fund, Association on American Indian Affairs and National Indian Child Welfare Association issued a joint statement condemning the ruling. “This egregious decision ignores the direct federal government-to-government relationship and decades upon decades of precedent that have upheld tribal sovereignty and the rights of Indian children and families. Through 40 years of implementation, ICWA’s goal is to promote family stability and integrity. It continues to be the gold standard in child welfare policy. While this disturbing ruling is a pivotal moment for Indian Country, we vehemently reject any opinion that separates Native children from their families and will continue to fight to uphold ICWA and tribal sovereignty.”
Tara Sweeney, assistant secretary for the Department of the Interior’s Bureau of Indian Affairs (BIA), said in a statement that her agency, which once assisted in removing native children from their families, would continue to support ICWA. “The Department of the Interior strongly opposes any diminishment of ICWA’s protections for Indian children, families, and tribes. The Department will continue to work with tribes and states to implement ICWA moving forward. We reiterate our support for ICWA’s goals of ensuring the safety of Indian children, maintaining Indian families, and promoting tribal sovereignty.”
The Goldwater institute challenges the political classification based on the law’s application to children who aren’t members by eligible for membership, which brings ancestry into play. The institute also argues that the act overrules the “best interest of the child” requirement. “It’s illegal to delay or deny an adoption based on a person’s race, with a single exception: Indian children,” said Sandefur. “That’s wrong. It’s time that these kids got the same strong protections all other kids receive.”
However, the history of the act is rooted in the boarding schools and other efforts to force assimilation, some run by the federal government and some by religious missions, whose intentions were to remove any elements of native culture from Native American children. Children were forcibly removed from their parents and placed in environments where their languages and traditions were prohibited, and harsh punishments awaited those who disobeyed. It caused a disconnect between the children and their families. It caused a decline in the use of native languages and a decline in the practice of native traditions. It also caused a lifetime of trauma and psychological damage for the parents and their children. This practice ended in the 1960s.
Boarding schools weren’t the only institutions to play a role in stripping natives of their cultures. From 1958 – 1967 the Child Welfare League of America (CWLA) worked with the BIA to place native children with white families through the bureau’s Indian Adoption Project, an action for which the child welfare league would apologize in 2001. The league in 2016 issued a statement that they would work with ICWA. “CWLA will redouble its work to ensure that service providers fully implement ICWA and the CWLA standards of excellence in child welfare.”
Principal Chief Richard G. Sneed was appalled by the ruling and O’Conner’s statements. “ICWA was established to protect tribal members from a government and general population that were, at best patronizing, and at worst, hostile towards native people. Native people have long seen the importance of our children growing up surrounded by their families, with the opportunity to learn their culture from extended family members and the broader tribal community. ICWA is at its heart a nation-based program, recognizing the trust responsibilities of the federal government to federally-recognized tribes. It is my hope that this judge and all those presented with ICWA cases take the opportunity to learn about the history of treaty obligations granted to native peoples.”
The issue isn’t over. A joint statement from Bill John Baker, Principal Chief of the Cherokee Nation (whose ICWA battles made national news), Morongo Band of Mission Indians Chairman Robert Martin, Oneida Nation Chairman Tehassi Hill, and Quinault Indian Nation President Fawn Sharp said they will work state to state to ensure ICWA protections for native children and defend the law. “We remain steadfast in our commitment to defend the constitutionality of ICWA by all available means for one simple reason: If ICWA is struck down in whole or in part, the victims will be our children and our families, Native children and Native families.”
The joint statement alleges that opponents of ICWA have one extreme goal in mind, separating native children from their parents. “Before ICWA, as many as one-third of all tribal children were forcibly removed from their families and their communities by state governments. Thorough and objective analysis of the systematic removal of Indian children from Indian homes found many removals were wholly unjustified. These policies devastated tribal communities, and we refuse to go back to those darker days.”
These tribes vowed to continue the fight. “We are in consultation with our legal counsel and exploring all available options. Rest assured, we consider the trial level decision today as one part of a long process. In the interim, we will seek a stay of the decision until higher courts have an opportunity to review it. We will continue to work in state courts throughout the country to ensure the protections of ICWA for native children, families, and tribes. We strongly believe that, in the end, our rights protected by the Indian Child Welfare Act will be affirmed and reinforced.”