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Justice Department official warns of Indian Child Welfare Act fight

Tuesday, April 5, 2016

The National Indian Child Welfare Association is hosting its Conference on Child Abuse and Neglect in St. Paul, Minnesota. Photo by NICWA / Twitter

Opponents of the Indian Child Welfare Act are waging a war in the courts, the halls of Congress and in the media, a top Department of Justice official warned on Monday.

The landmark law has been on the books since 1978 and was written to keep Indian children from being taken from their tribal communities. At the time, as many as 25 to 35 percent of Indian children were being placed in non-Indian homes.

Nearly four decades later, ICWA's mandates still haven't been accepted by everyone in the adoption, foster care and child welfare industries. One high-profile case, Adoptive Couple v. Baby Girl, already went to the U.S. Supreme Court and opponents are still trying to undermine the law with new cases, principal deputy assistant attorney general Sam Hirsch said.

"I can’t talk in detail about pending litigation, but it is important to note that the claims in these cases are broad attacks on ICWA and go to the heart of Congress’ authority to pass legislation to benefit Indian tribes and Indian people," Hirsch said in prepared remarks at a meeting hosted by the National Indian Child Welfare Association. "These cases could potentially have repercussions for other laws benefiting Indian tribes and their members."

Sam Hirsch of the Department of Justice speaks at the National Indian Child Welfare Association's Conference on Child Abuse and Neglect in St. Paul, Minnesota, on April 4, 2016. Photo by NICWA / Twitter

The anti-ICWA movement suffered one defeat when a case filed by the National Council for Adoption and Building Arizona Families was dismissed in December. But another one filed by the conservative Goldwater Institute of Arizona is still pending and has attracted significant attention from tribes -- the Navajo Nation and the Gila River Indian Community are both seeking to intervene in the case.

The lawsuit seeks to invalidate ICWA, a step the high court refused to take in Adoptive Couple. But even if opponents don't succeed, they are still managing to draw negative attention to the law and to tribes through the media, influencing public and political sentiments along the way.

The attorney behind the case that was dismissed in December, for example, is also representing a non-Indian couple in California that tried to prevent a Choctaw Nation girl from being placed with relatives in Utah. Despite losing repeatedly in court, the media has focused almost exclusively on the couple's complaints and those of Lori Alvino McGill, who told the Associated Press last week that she will keep fighting all the way to the Supreme Court if necessary.

"There is no recognition of the sovereignty of tribes, the significance of tribal citizenship, or the legal and moral framework that underlies federal policy in this area," Hirsch told NICWA's Conference on Child Abuse and Neglect of the media coverage. "What we are seeing in the court cases and in the press is the notion that ICWA harms, rather than helps, Indian children and their families."

"We can’t rest on the knowledge that ICWA is the law; we must persuade our fellow citizens, lawmakers and judges that it is an important law that must be maintained and should be adhered to," Hirsch added.

Larry Roberts, the acting leader of the Bureau of Indian Affairs, speaks at the National Indian Child Welfare Association's Conference on Child Abuse and Neglect in St. Paul, Minnesota, on April 4, 2016. Photo by NICWA / Twitter

To counteract the negative focus on ICWA, Hirsch said the Obama administration is taking a more active role by filing briefs in cases across the country even though the United States is usually not a named party. One of those, Oglala Sioux Tribe v. Van Hunnik, resulted in a major victory for tribes and Indian guardians in South Dakota nearly a year ago. The state is still unwilling to accept the result, and has been trying to delay compliance with the ruling, the Native Sun News reported.

"This is a critical moment for Indian children," Hirsch said. "At the federal level, we are rising to the challenge. But we also need your help—tribes, social workers, child welfare attorneys—to ensure that Indian children, families and tribes continue to enjoy the protections of this important federal law."

The Department of Justice isn't the only federal body taking action to defend ICWA either. The Bureau of Indian Affairs has issued new guidance and is plans to finalize a new rule to ensure stronger compliance with the law among states, courts and child welfare agencies.

The BIA also signed a memorandum of understanding with DOJ and the Department of Health and Human Services to strengthen compliance and implementation of the law on the federal level. The agreement was announced at NICWA's meeting.

“We want to assure Indian families and tribal leaders that the Obama Administration’s dedication to ICWA’s goals remains an enduring policy for Indian Country," acting assistant secretary Larry Roberts the head of the BIA, said in a press release. "Focused implementation and compliance of ICWA protects Indian children and families, strengthens the social fabric of tribal communities, and ensures that tribes are able to serve their citizens for generations to come.”

NICWA's conference concludes on Wednesday.