More tribal leaders criticize ruling in Indian Child Welfare Act case

Wednesday, October 10, 2018

Tribal leaders continue to criticize a federal judge's decision to strike down the Indian Child Welfare Act as unconstitutional.

Kirk Francis, the president of the United South and Eastern Tribes, called the October 4 ruling a "betrayal" to Indian Country. He said it goes against decades of settled law and precedent, all of which recognize tribal nations as a political -- not racial -- class.

“Because of this decision, many of our children who should be raised in their Native culture are going to be raised in non-Indian homes,” said Francis, who also serves as chief of the Penobscot Nation. “This is deeply distressing and a total violation of all the promises the Federal government has made to protect our communities.”

“This decision is wildly outside the main stream of federal Indian law,” Francis added. “It will not only harm Native children and Native families, but it literally could call into question many other federal actions taken to help tribal Nations and Native peoples. It feels like a final betrayal.”

Darrell G. Seki, Sr. serves as chairman of the Red Lake Nation. Photo from Senate Indian Affairs Committee

Darrell G. Seki, Sr., the chairman of the Red Lake Nation, was equally critical. He called the ruling a return to the "dark days" of Minnesota history, when courts frequently terminated the rights of Indian parents and placed tribal children in homes away from their communities.

“We refuse to go back to the dark days before the enactment of the Indian Child Welfare Act when our children were forcibly removed from their families and their communities by state courts and state agencies without recourse, and the Red Lake Nation supports all efforts to have the recent wrongly decided Texas court decision reversed.”

Strong reactions aren't just coming from Indian Country either. Alaska Gov. Bill Walker, a political independent who is running for re-election, said the decision threatens ICWA, 40 years after it became law in 1978.

“There is nothing more important to Alaskans than the well-being of our children," Walker said in a statement.

"Lieutenant Governor Byron Mallott and I continue to stand with Alaska tribes in supporting the Indian Child Welfare Act,” he added. Mallott, who is Tlingit, is running for re-election as a Democrat.

Happy #IndigenousPeoplesDay2018! I'm looking forward to spending time today with students at the University of Alaska Fairbanks honoring our people, culture and knowledge. Each campus across Alaska will celebrate. Proud to officially recognize this day in #Alaska pic.twitter.com/USutISffBZ
— Lt. Governor Byron Mallott (@LtGovMallott) October 8, 2018

The state of Alaska was among several states which submitted a friend of the court brief in defense of ICWA. So did more than 120 tribes and tribal organizations, including the National Indian Child Welfare Association, the National Congress of American Indians, the Association on American Indian Affairs.

All of the attention did not sway Judge Reed O'Connor, a Republican appointee who has little experience in Indian law. He serves on the United States District Court for the Northern District of Texas, where no tribes are based.

"No matter how defendants characterize Indian tribes—whether as quasi-sovereigns or domestic dependent nations—the Constitution does not permit Indian tribes to exercise federal legislative or executive regulatory power over non-tribal persons on non-tribal land," O'Connor wrote in a section of the decision which struck down ICWA's tribal participation provision as illegal.

The Cherokee Nation, the Morongo Band of Mission Indians, the Oneida Nation and the Quinault Nation were allowed to intervene in the case as defendants. They plan to ask the judge who issued the decision for a delay while they appeal, a step supported by other tribal leaders, including President Francis and Chairman Seki.

“There is literally nothing we value more than our children. This inhumane decision cannot stand,” said Francis.

The case is known as Brackeen v. Zinke and Texas v. Zinke. The individual plaintiffs are non-Indians who have been trying to adopt children who are eligible for citizenship in various tribes. They are being represented by a law firm with offices in Texas and Washington, D.C.

The Goldwater Institute, a conservative organization that has been trying to undermine ICWA with lawsuits around the country, is not representing any of the individual plaintiffs but submitted a friend of the court brief in the case. The group praised the judge's ruling in an October 4 statement.

According to Timothy Sandefur, the vice president for litigation at Goldwater, "ICWA denies them that protection and prioritizes their race over all other considerations. That’s immoral, and today’s decision rightly holds that it’s also unconstitutional.”

But Chairman Seki disputed the group's motivations. He said conservation organizations like Goldwater are intent on undermining federal Indian law and aren't concerned about the bests interests of Native children.

"These conservative groups have no understanding of tribal cultures, they have no respect for the rights of Native people, and they work together in unison to strip away federal protections for Native people for their own selfish ends," the Red Lake Nation said in a statement.

Goldwater, though, isn't alone in criticizing ICWA -- the states of Texas, Louisiana and Indiana joined the non-Indian plaintiffs in the lawsuit. Together, they succeeding in striking ICWA down as unconstitutional and in striking down recent Bureau of Indian Affairs regulations that were meant to strengthen compliance with the law.

The defendants include Secretary Ryan Zinke and other officials at the Department of the Interior. The Trump administration has not disclosed its next step in the case but Tara Sweeney, the recently-installed Assistant Secretary for Indian Affairs, defended ICWA in a statement this week.

"For nearly forty years, child advocacy organizations across the United States have considered the Indian Child Welfare Act to be the gold standard of child welfare policy," Sweeney said on Sunday. "The Department of the Interior strongly opposes any diminishment of ICWA’s protections for Indian children, families, and tribes."

ICWA and the Media

The Native American Journalists Association recently updated its guide to ethical reporting on the Indian Child Welfare Act.

"It’s not a journalist’s duty to determine if a child is Native 'enough,' but whether or not they are citizens under Tribal law," the guide states. "Reporting phenotypes and blood percentages is culturally offensive, and disregards and diminishes the political rights of Indigenous people."

The document can be found on naja.com.