Bitter custody battles for Native American children have reached the U.S. Supreme Court, which will consider biology versus a child’s best interests, as well as culture and attachment.
At the heart of the argument is the constitutionality of the Indian Child Welfare Act of 1978, which prioritizes the placement of Indian children with relatives, other Native Americans, or a tribe to reinforce tribal identity. The ICWA was intended to heal the wounds caused by social workers and adoption agencies for forcibly removing 25-35% of Indigenous children and placing them with white families or group homes.
The ICWA covers Native American children who live off reservations, which places them under the jurisdiction of the state. The tribe has a say. If a biological family is deemed unfit, the tribe may find an extended family, then an unrelated tribal family, and finally another tribe. A judge can reject the tribe’s nominee for “clear and compelling” reasons.
Now the law is likely to fall. Opponents of ICWA say it is a race-based system defined by a child’s genetics and ancestry that ignores equal protection. We hope, however, that the ICWA survives judicial scrutiny.
The Supreme Court has consolidated four cases under Haaland v. Brackeen, which are expected to appear on the docket during the October 2022-2023 period.
Seven people and three states – Texas, Indiana and Louisiana – are challenging the law. Plaintiffs say ICWA requires state officials to set aside the norm of doing what is best for the child. They say it violates the Constitution’s promise of equal protection.
“The ICWA operates as a unified system that places ‘Indian children’ at a disadvantage, depriving them of a placement decision based on their best interests and instead requiring placements ‘based on the biology of the child’ , the individual plaintiffs said in their filing.
In September 2021, in her official capacity, U.S. Secretary of the Interior Deb Haaland, a Pueblo de Laguna member and 35th-generation New Mexican, petitioned the High Court to enforce the ICWA.
Overthrowing the ICWA would undermine the sovereign rights of the tribes. Cancellation of this law could threaten guardians of tribal water and land rights, as well as casinos. ICWA is more than a law. It involves a promise that the harm caused by forced assimilation will not happen again.
In 2013, in a 5-4 decision, the Supreme Court ruled in Adoptive Couple v. Baby Girl that Veronica’s 3-year-old biological father, Dusten Brown, a member of the Cherokee Nation, did not have parental rights under ICWA because he “abandoned the (American) Indian child before he was born and never had custody of the child.” In his concurring opinion, Justice Clarence Thomas said that by adopting the ICWA, the federal government may have interfered in family law, a subject constitutionally reserved for the states. The high court overturned a 2011 decision by the South Carolina courts, which ruled that under ICWA the child should be returned to his biological father.
We expect Thomas to be in favor of rescinding the ICWA for equal protection reasons. Judge Amy Coney Barrett has seven children, two of whom were adopted from Haiti. We wonder if she should recuse herself from this case.
In southwest Colorado, Martha Johnson, director of the La Plata County Department of Social Services, said that if a Native American child cannot return to a home for safety reasons, “we work with the tribe and court to finalize permanency for that child in a home that the tribe approves of. Johnson also said most contact was with out-of-state tribes.
Madlynn Ruble, assistant director of communications for the Colorado Department of Human Services, said, “CDHS supports ICWA legislation and works closely with our tribal partners to ensure we uphold the law and tribal sovereignty. .
Every child protection case is different. It’s heartbreaking to imagine the pain of losing a child to another family after becoming attached. But the tribes must maintain their authority. It retains the importance of the culture and heritage of an Aboriginal child.