Marchers gather at the base of the War Eagle Monument in Sioux City, Iowa, on November 22, 2017, as part of the 15th Annual Memorial March to Honor Lost Children. Photo by Kevin Abourezk

Court strikes down landmark Indian Child Welfare Act ruling

A federal appeals court has delivered a major blow to tribes and parents who have been seeking stronger enforcement of the Indian Child Welfare Act in South Dakota.

The Oglala Sioux Tribe, the Rosebud Sioux Tribe and three Indian parents went to court more than five years ago, alarmed by the large numbers of Indian children being taken from their families. They secured a historic ruling which confirmed that the state was violating ICWA by failing to provide adequate notice in child welfare proceedings.

"Indian children, parents and tribes deserve better," Judge Jeffrey L. Viken stated in his landmark March 2015 ruling.

But that victory is no more. In a unanimous decision, the 8th Circuit Court of Appeals last week set aside the ruling, saying Viken went too far when he ordered the state to improve compliance with ICWA, the 1978 law that remains under attack throughout the nation.

In doing so, however, the higher court did not disturb some of the key findings in the case. Under the guidance of one particular state judge who was eventually sanctioned for "concealing" information from the tribes, Indian children were removed from their families in 100 percent of the proceedings.

Indianz.Com on SoundCloud: 8th Circuit Court of Appeals: Oglala Sioux Tribe v. Fleming [Oglala Sioux Tribe v. Vargo]

Instead, the 8th Circuit focused on a procedural issue. The federal courts shouldn't have gotten involved at all as a result of the so-called "abstention" doctrine, Judge Steven Colloton wrote in the September 14 decision.

"The issue is whether the federal court should refrain from exercising jurisdiction and allow the claims to be resolved in the state proceedings," the 16-page decision read. "A federal court order dictating what procedures must be used in an ongoing state proceeding would 'interfere' with that proceeding by inhibiting 'the legitimate functioning of the individual state’s judicial system.'"

Still, the outcome of the decision is clear. With the original victory wiped from the books, South Dakota will be allowed to carry out its child welfare proceedings as it pleases, regardless of the impact on tribes and their communities.

The 8th Circuit in fact ordered Judge Viken to "dismiss the claims" that the tribes and Indian parents were pursuing as part of the litigation. Their objections included the state's practice of taking Indian children from their families and rushing to court -- no more than 48 hours was the standard -- to obtain a placement determination.

These hearings typically lasted fewer than five minutes -- with some even being concluded in about a minute. And it was in the 7th Judicial Circuit -- which covers the state's most populous area in and around Rapid City -- where the state won 100 percent of the child welfare proceedings, meaning Indian parents and guardians lost all of them.

As a result, more than 1,000 Indian children have been removed from their families since 2010, according to the tribes and the parents. That's just in Pennington County, where Native Americans represent 10.1 percent of the population.

The team that won the original Indian Child Welfare Act lawsuit in South Dakota, from left: Carole Crazy Thunder-O’Rourke, Oglala Sioux Tribe Vice-Chairman Tom Poor Bear, Oglala Nation Tiospaye Resource & Advocacy Center (ONTRAC) Director Juanita Scherich, Valerie Janis, Lema Richards, ACLU attorney Stephan Pevar, William Chase and Rapid City attorney Dana Hanna. Photo by Richie Richards / Native Sun News Today

ICWA was enacted in 1978 to address these kinds of situations. For decades, Indian children were being taken from the communities, without adequate notice and due process being provided to tribes and families.

Some 40 years later, compliance remains spotty in places like South Dakota, Arizona and California, home to some of the largest tribal populations in the United States. But battles over ICWA can be found in just about every court -- tribal, state and federal -- as conservative groups continue their long-running efforts to weaken the law, arguing that it is based on "race."

So far, the federal courts have not accepted that premise. In a series of rulings, judges have said ICWA is based on the unique political and legal status of tribal nations, whom Congress said have a right in determining where their children are placed.

But that isn't stopping the litigation. Tribes and their advocates are paying close attention to a case pending in federal court in Texas, which claims that ICWA regulations issued by the Bureau of Indian Affairs violate the U.S. Constitution.

"ICWA commandeers state agencies and courts to become investigative and executive actors carrying out federal policy, and to make child-custody decisions based on racial preferences," the complaint in Texas v. Zinke reads.

The states of Texas, Indiana and Louisiana are a part of the lawsuit, which has attracted interest from the Cherokee Nation and the Navajo Nation, the two largest tribes in the U.S. A key hearing that will determine whether the case moves forward took place on August 2 but advocates don't think the ICWA opponents will give up if the ruling doesn't go their way.

"Plaintiffs in effect ask this court to second guess the manner in which Congress responded to what it termed an 'Indian child welfare crisis of massive proportions,'" attorneys for the Trump administration defendants wrote in a recent filing which called for some of the more significant claims to be decided in the federal government's favor.

"Congress arrived at a statutory solution to this crisis that protects, first and foremost, the best interests of Indian children, but also the rights of their parents and families and the interests of states and tribes," the brief continued.

The fear with the case, despite being based on a "race" argument that has been rejected elsewhere, is that it will advance to the 5th Circuit Court of Appeals, a historically more conservative venue. From there, advocates fear it could easily wind up before the U.S. Supreme Court, whose last ICWA case went against tribal interests in Adoptive Couple v. Baby Girl back in 2013.

'Stand up, fight back!'

Annual march to honor lost Native children continues

Native parents and advocates march every year to honor children lost in the welfare system.

Photos: Memorial March to Honor Our Lost Children in Iowa

Tribes in Alaska, many of whom joined a brief in Texas v. Zinke, are in fact worried about such a possibility with the nomination of Brett Kavanaugh to the nation's highest court. They are calling on the Senate to reject his confirmation, citing his "misguided" views on some of the very same issues being argued in the ICWA case.

"Confirming a nominee with this viewpoint would be disastrous for Alaska, and would roll back the gains of self-determination and usher back in the losses of termination," the Alaska Federation of Natives, the largest organization of its kind in the state, said in a September 12 statement.

The Senate Committee on the Judiciary was due to vote on Kavanaugh's nomination this Thursday, a key step before he can be considered by the full chamber. But the executive business meeting was cancelled in light of an allegation of sexual assault that has upended the already contested confirmation process.

The committee has now extended the confirmation hearing to a fifth day next Monday. The purpose is to hear from Kavanaugh, who currently serves as a judge on the D.C. Circuit Court of Appeals, and Dr. Christine Blasey Ford, a California professor who has accused the nominee of assaulting her when both were teens in the early 1980s in the suburban Washington, D.C., area.

“As I said earlier, anyone who comes forward as Dr. Ford has done deserves to be heard," Sen. Chuck Grassley (R-Iowa), the chairman of the committee, said in a statement on Monday.

Grassley had previously hoped to advance Kavanaugh's nomination this week in order to secure a final vote on the Senate floor before the Supreme Court opens its next session on October 1. Three Indian law cases are currently on the docket and petitions are pending in nearly a dozen more cases that might be accepted.

The timeline has been cast significant doubt on that timeline although it is possible the Republicans who control the Senate could still move Kavanaugh forward. Alaska Natives are hoping that doesn't happen and are counting on deep divisions in the chamber to derail the nomination.

"Confirming a nominee who is unable to grasp the necessity of federal programs based on the political classification doctrine, and articulate why they must be protected, would be unwise," AFN said in its statement.

8th Circuit Court of Appeals Decision
Oglala Sioux Tribe v. Fleming (September 14, 2018)

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