Tribal leaders and tribal citizens take part in a 75th anniversary photo at the National Congress of American Indians in Denver, Colorado, on October 24, 2018. Photo by Indianz.Com (CC BY-NC-SA 4.0)

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'Intentional and direct attack': Tribes vow fight for Indian Child Welfare Act

Thursday, October 25, 2018

By Acee Agoyo

DENVER, Colorado -- One of the biggest threats facing tribal sovereignty are the coordinated attacks on the Indian Child Welfare Act, advocates repeatedly said here this week.

For years, conservative groups and private adoption agencies have been challenging the landmark law, which was enacted in 1978 to address a crisis in Indian Country. According to data from the era, 25 percent to 35 percent of tribal children were being taken away from their communities.

The anti-ICWA efforts generated unfavorable media coverage of the law and contributed to a frenzy when the U.S. Supreme Court took up a high-profile case several years ago. But despite a negative ruling from the justices at the time, the law and its provisions -- frequently described as the "gold standard" for child welfare -- remained intact.

The situation changed dramatically this month. A federal judge in Texas, who has little experience in Indian issues and who serves on a district court where no tribes are based, struck down ICWA as unconstitutional.

Why did Congress pass the Indian Child Welfare Act in 1978? “25 to 35 percent of Native children were being removed from their homes,” said Sarah Kastelic of the National Indian Child Welfare Association. #NCAI75 #DefendICWA pic.twitter.com/Pxnoj9GXOK
— indianz.com (@indianz) October 24, 2018

The devastating ruling has been a major topic of discussion as the National Congress of American Indians holds a milestone convention in the same city where tribal leaders came together in 1944 to address threats to their sovereignty. Decades later, the ICWA case stands out as one of the biggest.

"Make no mistake, this is an intentional and direct attack on tribal sovereignty and our families and children," Sarah Kastelic, the executive director of the National Indian Child Welfare Act Association, said on Tuesday at NCAI's 75th annual convention.

The decision in the ICWA case was issued by Judge Reed O'Connor, a Republican appointee, on October 4. In declaring the law unconstitutional for the first time in its history, he went against decades of precedent and concluded that it was based on race.

"It's not based on race," Kastelic countered at a follow-up session on ICWA in Denver on Wednesday. "It's based on citizenship."

Why is the Indian Child Welfare Act still needed in 2018? The rate of all children in foster care is 5 out of 1,000. “For tribal children it’s 15 out of 1,000,” said Sheri Freemont Casey Foundation Indian Child Welfare Program. #NCAI75 #DefendICWA pic.twitter.com/LElsQOIVFN
— indianz.com (@indianz) October 24, 2018

Four tribes who have intervened in the case. agree with that assessment. The Cherokee Nation, the Morongo Band of Mission Indians, the Oneida Nation and the Quinault Nation have asked for a stay of the judge's decision while they seek to overturn it at the federal appellate court level.

"We're likely to prevail on appeal," attorney Keith Harper, a citizen of the Cherokee Nation whose law firm is representing the four tribes, said here on Wednesday.

Tribes aren't the only ones alarmed. Speaking to NCAI on Monday on her 80th day as the Assistant Secretary for Indian Affairs, Tara Sweeney said the Trump administration remains committed to defending ICWA.

"I take my trust responsibility seriously," said Sweeney. So far, the Trump administration has not publicly disclosed what steps it will take to address the ruling, which also struck down Bureau of Indian Affairs regulations that were written to strengthen compliance with ICWA.

How are tribes protecting their children in 2018, four decades after the Indian Child Welfare Act? The Navajo Nation is currently handling 568 ICWA cases in 28 states, said Kandis Martine of the tribe’s Department of Justice. #NCAI75 #DefendICWA pic.twitter.com/FGZntS1a3P
— indianz.com (@indianz) October 24, 2018

Even though tribes are confident they will succeed once the 5th Circuit Court of Appeals hears their pleas, advocates believe the case won't end there. Many fear it will wind up before the Supreme Court, whose makeup has shifted in a more conservative direction since the Adoptive Couple v. Baby Girl decision was handed down five years ago.

"This is a real threat," said Kitcki Carroll, a citizen of the Cheyenne and Arapaho Tribes who serves as executive director of the United South and Eastern Tribes. He said Indian Country needs to be "aware and awake" of the ruling and its impacts.

Why are tribes fighting to overturn the court decision striking down the Indian Child Welfare Act as unconstitutional? “50 Cherokee kids in Texas right now are in ICWA cases,” said attorney Keith Harper. They need ICWA’s protections, he said. #NCAI75 #DefendICWA pic.twitter.com/C98o7JVJVm
— indianz.com (@indianz) October 24, 2018

The plaintiffs in the case, known primarily as Brackeen v. Zinke, are non-Indians who have been trying to adopt children who are eligible for citizenship in various tribes. They are being represented by a high-profile law firm with ties to the conservative Republican establishment.

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 the group has praised the October 4 ruling in the case.

What makes Brackeen different from prior anti-ICWA cases is the fact that it's known by another name, Texas v. Zinke. The states of Texas, Indiana and Louisiana are also plaintiffs and their presence helped convince the judge to rule that ICWA is unconstitutional because it forces their child welfare agencies and their courts to act in a certain way in violation of the so-called "commandeering" doctrine.

With tribal sovereignty at stake, attendees of NCAI have been sharing their personal stories about the need to protect Indian children. One of them was Rosa Soto Alvarez, a council member for the Pascua Yaqui Tribe.

"I'm an ICWA child," she said.

Without ICWA's protections in force in Arizona, Soto Alvarez said she likely would have been placed in a home outside out of her tribal community. But another Yaqui family was able to take her in, thanks to the law.

"ICWA works," she said. "I'm proof."

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.