FEATURE: ICWA & Indigenous Nations’ Right to Their Children
“The two hours a week I spend arguing more parenting time for our children is the hill I die on," says Angela Bibens (Santee Dakota descent) managing partner of Red Owl Law, an Indigenous-focused law firm in Denver, Colorado with expertise in the Indian Child Welfare Act. "Studies show reunification is more likely when parents spend more time with their kids."
She emphasizes the need for "active efforts," which ICWA requires to prevent the breakup of Indian families.
"You can put these wraparounds, in-home therapy, and visiting nurses," Bibens explains that instead of having specialists (who are often white) coming to your home, the system in effect defaults to white people raising Native kids.
"Neglected families need these programs," she stresses. "It's not rocket science; it's just about money."
However, on October 4, a U.S. District Court for the Northern District of Texas found it to be more than just about the money but the legality of the term "Indian" itself. In the case Brackeen v. Bernhardt (formerly Zinke), Judge Reed O'Connor declared the Indian Child Welfare Act unconstitutional claiming it to be a "race-based statute." His ruling ignored hundreds of years of federal Indian law recognizing Native American tribes as nations going back to the Constitution, itself. In the Commerce Clause (Article I, Section 8, Clause 3) it says, "The Congress shall have power…to regulate commerce with foreign nations, and among the several states, and with the Indian Tribes."
The decision also advanced the notion that Indigenous nations do not possess national interests in children born to their citizens. Imagine if the country of France, facing a 30 percent out adoption rate by a foreign power, were told the same thing?
Congress passed ICWA in 1978 after a study finding 25-35% of Native children were taken from their homes and over 80 percent placed with non-Native families. This high rate of removal falls within the purview of the United Nations' Convention on the Prevention and Punishment of Genocide, Section II which defines genocide as "any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group…Forcibly transferring children of the group to another group."
In a joint statement, leaders of the four tribes named in the suit restated their commitment to protecting children of their respective nations saying in part, "If ICWA is struck down in whole or in part, the victims will be our children and our families, Native children and Native families."
This ruling represents the culmination of years of work by the Goldwater Institute, a conservative think tank. Although the institute is not a plaintiff in the case, the arguments used by the prosecution were distilled by and developed over nearly two decades by the conservative think tank. Namely, the 14th Amendment's "equal protection under the law" clause that alleges the definition of "Indian" is illegal because it is race-based.
Timothy Sandefur, vice president for litigation at the Goldwater Institute, was quoted in The Nation claiming ICWA "is obviously racial discrimination." An admirer of the abolitionist Frederick Douglass, Sandefur goes even farther speculated that Douglass, a black ex-slave, would be anti-ICWA if he were alive today saying, "I think his answer is that we all have a right to be treated equally by the law."
On March 13, 2019, Fifth Circuit Court of Appeals heard oral arguments in the Brackeen v. Bernhardt case. If the appeal fails, the fear is that anti-ICWA activists will seek to create a circuit court split and take the case to the Supreme Court. There, the court could declare unconstitutional the protections of ICWA and throw into question the legal status of tribes. Thus, this ruling has serious implications not only for Native families butthe sovereignty of their nations. Ironically, "Indians" are not named in the 14th Amendment when it was passed in 1868, because Native Americans were not viewed as U.S. citizens by Congress at the time. Instead, they were seen as citizens of their respective Indigenous nations and thus, did not require an exemption under the amendment. Native Americans were not granted U.S. citizenship until 1924.
How ICWA does and does not work at the state court level illuminates how ignorance of the law puts Native American parents in danger of losing their children every year. Colorado, where Bibens practices, is unique in that it has a state-level ICWA law on the books, two dedicated ICWA courts, and an en banc court of appeals panel for ICWA review.
"State of Colorado had a failing grade on ICWA implementation," Judge Katherine Delgado of Adams County recalls. She serves on the executive committee of the court improvement program and presides over an ICWA court. To change that grade, members of the committee including the judge and ICWA attorneys like Bibens and Sheldon Spotted Elk director of Indian Child Welfare at Casey Family Programs totake a road trip to Montana and South Dakota visiting four tribes: the Crow Nation, Northern Cheyenne, Oglala Sioux at Pine Ridge and the Rosebud tribe.
It's one thing to follow the black letter of the law," Delgado says, "but if you don't understand why it's there, you won't be as compliant as you could be."
The judge was in her own words "overwhelmed" by the number of notices for ICWA cases the tribes received from all over the country. She was, even more, astounded the Oglala Sioux tribe had only recently received computers and before that were answering requests by hand.
Delgado notes she has only seen one parental termination since the started the new ICWA courts and it was from one the tribes she visited in 2017, and that the tribe fully supportive of the outcome.
However, there is still a great deal of education that needs to occur. Most judges and attorneys are not required to learn Indian Federal Law in law school or to pass the bar and therefore do not know it. Even Justice Sonia Sotomayor admitted she had no familiarity with Indian Federal Law before she arrived at the Supreme Court.
And the results of this ignorance can be devastating to Native families. In 2011, NPR in a series about Native foster care in South Dakota found 700 Native children, a disproportionate number for their percentage of the population were being placed in foster care every year. Reporters also found that ICWA, which gives preference to placement with relatives or their tribe, was not being followed.
"Cousins are disappearing; family members are disappearing." Peter Lengkeek, a Crow Creek Tribal Council member, told NPR 33 years after the passage of ICWA. "It's kidnapping. That's how we see it."