Appeals court to hear Native American child welfare case
S E E D E D C O N T E N T
A federal law that gives preference to Native American families in foster care and adoption proceedings involving Native American children is facing the most significant legal challenge since it was enacted more than 40 years ago.
A federal judge in Texas ruled the Indian Child Welfare Act is unconstitutional, saying it is racially motivated and violates the equal protection clause. More than 20 states have joined hundreds of tribes, advocacy groups and the federal agency that oversees Indian affairs in urging an appellate judge to uphold the law. They say tribes are a political classification, not a racial one, and overturning the Indian Child Welfare Act would lead to untold damage in tribal communities.
"The fear is without the statute, Indian children will once again sort of disappear into the child welfare system and be lost to their families and their tribes," said Adam Charnes, who will present arguments on behalf of five intervening tribes before a panel of the 5th U.S. Circuit Court of Appeals on Wednesday.
The law has led to some emotional, high-profile cases, including one in 2016 in which a court ordered that a young Choctaw girl named Lexi be removed from a California foster family and placed with her father's extended family in Utah. Images of the girl being carried away from her foster home drew widespread attention.
In 2013, the U.S. Supreme Court ruled the law didn't apply in a South Carolina case involving a young girl named Veronica because her Cherokee father was absent from part of her life.
Congress passed the Indian Child Welfare Act in 1978 because a high number of Native American children were being removed from their homes by public and private agencies. In adoptions of such children, the law requires states to notify tribes and seek placement with the child's extended family, members of the child's tribe or other Native American families. Tribes also have a say in foster care placements.
The law allows states to deviate from placement preferences when there is "good cause." The U.S. Bureau of Indian Affairs sought to clarify the term in 2016 by saying state courts shouldn't consider socio-economic status, or ordinary bonding or attachment to host families, among other things.
The latest case centers on Chad and Jennifer Brackeen, a Texas couple who fostered a baby eligible for membership in both the Navajo and Cherokee tribes. The boy's parents voluntarily terminated their parental rights, and the Brackeens petitioned to adopt him.
The state denied their request after the Navajo Nation identified a potential home with a Navajo family in New Mexico. The Brackeens got an emergency stay and went to court.
They were able to adopt the boy in January 2018 after the placement fell through. The boy is now 3, and the couple is seeking to adopt his younger half-sister.
Attorneys general in Texas, Indiana and Louisiana joined in suing the federal government over the Indian Child Welfare Act in 2017. The states say the law is discriminatory, and the federal government has no right to tell states how to regulate child welfare cases.
"It coerces state agencies and courts to carry out unconstitutional and illegal federal policy, and it makes child custody decisions based on racial preferences," Texas Attorney General Ken Paxton has said.
Matthew McGill represents the Brackeens, two other couples from Nevada and Minnesota, and a birth mother in the case. He said the Indian Child Welfare Act may have been well-intentioned, but it illegally segregates Native American children by race and has upended his clients' lives.
"Fundamentally, the issue here is that the Indian Child Welfare Act subordinates individualized considerations of a child's best interest in favor of a blunt assumption that being placed with a tribe is going to be better for the tribe, and that's just demonstrably untrue," he said. "It's not going to be true in every case."
The Minnesota couple, the Cliffords, wanted to adopt a girl who lived with them after being in various foster homes for two years. The child ultimately was placed with her maternal grandmother, a member of the White Earth Band of Ojibwe. The tribe at first said she wasn't eligible for membership but later reversed course.
The Librettis in Nevada arranged with a pregnant woman, Altagracia Hernandez, to adopt her unborn child. Hernandez isn't Native American, but the biological father is from Ysleta del Sur Pueblo in El Paso, Texas. The tribe intervened and has identified three dozen possible placements. Hernandez is a plaintiff in the case.
Tribes and tribal advocates say Native American children are still separated from their families at rates higher than the general population, and the law helps them stay connected to their tribes, relatives and culture.
The Indian Child Welfare Act defines Indian children as enrollees or potential enrollees who have a biological parent who is a member of any of the country's 573 federally recognized tribes. About a dozen states have similar laws, some of which expand the definition, said Sarah Kastelic, director of the National Indian Child Welfare Association.
When the federal law was enacted, studies showed up to one-third of Native American children were being taken from their homes by private and state agencies, including church-run programs, and placed with mostly white families or in boarding schools. Testimony in Congress showed that was due to ignorance of tribes' values and social norms. Kastelic also said there was a misconception that Native American families were unfit or too poor to care for their children.
"It was important to halt that removal, to correct state behavior, to put in minimum standards," she said.
Many Native American families have stories about loved ones who disappeared and never returned.
Allie Greenleaf Maldonado said her grandmother and uncles were placed in boarding schools, forced to cut their hair and beaten if they practiced their religion. When the grandmother died, Maldonado's mother was sent to live in Indiana with a Mennonite family who put bleach on her skin to lighten it, told her to say she was Armenian and kept her from communicating with her family, she said.
"They were ashamed she was Native American, and they made her ashamed she was Native American," Maldonado said. "To this day, she's never come back to the reservation. She says she's an apple, red on the outside, white on the inside."
Maldonado and her husband have an adopted son from a neighboring tribe. She said unlike her, 11-year-old Riley is growing up on the reservation and learning about traditional medicine and a culture that includes hunting and fishing.
"Only because of the Indian Child Welfare Act, (and) people following it, he has a community," she said.
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Interesting - if SCOTUS has already declared, in two cases, that the Indian Child Welfare Act was constitutional, why do these outlying courts still fight it?
Racism.
Exactly - and the fact that many people STILL believe we are all dead.
You may have to educate a bit here, but it was my understanding that once a precedent has been established by SCOTUS (two in this case) that was fairly much it. You can continue the attempt but an overturn is extremely unlikely.
The states say the law is discriminatory, and the federal government has no right to tell states how to regulate child welfare cases.
Part 2 of my education, it is also my understanding that Native American affairs fall under the auspices of Congress and the Federal Government, so in this case it would not fall under State jurisdiction.
Luther - Kavika pretty much covered it with the Goldwater Group and Cato group as the primary war machines in this battle. Regardless of what SCOTUS has stated in the past, these organizations are attempting to utilize two other sections of the Constitution to base their arguments on, which, in SCOTUS wars, means the cases can be readdressed based on "new evidence" - which would be the two Constitutional Amendments - the Equal Protection Clause and the 5th Amendment. So, it appears that the appeals court will be hearing "supposedly" new evidence. If the Appeals court disagrees, as you know, it will be sent back to the District Court or may even be sent back to the local court for re-evaluation.
You are totally correct on your 2nd part - and that is what many states - SD, MT, ID, ND, CA, OR and WA - have argued in the past that since they have such a large Native American population, they should be making the decisions, not the Feds. Hell, Congress even had to authorize OK's ICWA that was revised due to the many nations/tribes located in OK. But, yes, Congress has the ultimate "authority" over the Native American nations/tribes based on the Commerce Clause (which nobody can figure out how that happened).
Good questions. Did my responses help?
Did my responses help?
Yes they did, thank you.
One further query, I believe Federally recognized tribes are considered sovereign entities (at least in CT), between themselves and the Feds can they not tell the States to butt out.
Sure they can - butttt - depending on the power of the state's legislature, do they listen?? Nope.
After the state and the nation/tribe reach a standstill in any discussions, the nation/tribe then goes to the "Big Guns" - the BIA. That usually ends the discussion.
Unfortunately, some states, such as RI, have pretty much told the nations/tribes/BIA to kiss off and do it their way or hit the highway. That involves a reclamation of lands that were illegally taken by RI in the 1700's when they weren't even a state.
Thank you, very informative.
Groups like the Goldwater Group and the various Churches and adoption agencies want it overturned, which will give them access to Indian kids...South Dakota anyone.
Remember in the "Little Brown Girl" case, the NC courts all agreed that she should be with her Dad and that the Act was correct. But - Scalia, with support from Roberts and Thomas, totally disregarding the law, and said she needs to be in a "stable" household. The following investigations showed that the Christian Adoption agency was funded by the attorney for the non-Indian family and they received big bucks for that adoption. The state tried to shut them down, but it is a "Christian" organization in the South, and you know that ain't gonna happen.
Sadly I do remember that case.