“ICWA should be upheld!”

Indian Children Welfare Act pending Supreme Court judgment

    The issue is whether Native American kids have the right to Native care. Put simply like that, it’s a no brainer. Of course, they should. They always did so why should anyone get in the way of that. Enter ‘anyone’ aka the United States Supreme Court. A case is pending there that could overthrow the 45 year legal precedent that is the Indian Children Welfare Act.

    The case is currently on SCOTUS’ pending docket, not a legal term by the way. So you still have time to call your local Supreme Court judge and tell them to support ICWA. Except, of course, it doesn’t work that way.

    “Later this year, the High Court could overturn the senator’s landmark piece of federal legislation,” wrote Daniel Sheehan, president of the Lakota People’s Law Project. The senator in question is Senator James Abourezk, the first Arab-American to serve in the U.S. Senate. Sheehan says he was a “tireless champion of the rights of the Indigenous Peoples of North America.” Sen. Abourezk was also the architect and author of the original Indian Child Welfare Act (ICWA).

    To be clear the ICWA, originally passed in 1978, is a“federal law that governs jurisdiction over the removal of American Indian children from their families in custody, foster care and adoption cases,” according to Wikipedia. “It gives tribal governments exclusive jurisdiction over children who reside on, or are domiciled on a reservation.”

    Sheehan’s letter to Carole Crumley which she shared with me, is at first an alert that the ICWA is threatened again, but also a eulogy to Senator Abourezk, of whom I admit I have never heard. He appears in his eminence just as we learn he had died last month in Sioux Falls at 92 years.

    His passing wouldn’t be something of interest to me if it wasn’t for the urgency of something needing to be done, protect the Indian Child Welfare Act. My way of doing that is alerting you to it.

    Sheehan wrote, “Lakota Law’s legal team filed this amicus brief to the Supreme Court on behalf of Sen. James Abourezk — the Indian Child Welfare Act’s original author — in the case of Brackeen v. Haaland,” Dowload full Amicus Curiae.

People as ‘Commerce’?

    The initial challenge is based on the word ‘Commerce’ as in ‘regulate Commerce’. In Article 1 of the US Constitution, Congress is given the right to ‘regulate Commerce’ with Indian tribes. The challengers contend ‘children and families’…’are not articles or instrumentalities of commerce.’

    The Biden administration aka Haaland in this case counters that “Native American children have ‘always been a federal (and tribal) sphere.’” I’m not sure what that means in English ergo, it probably has a legal meaning.

    Regarding children not being Commerce, in other words, arguing that in fact they are, the Administration say “Congress’ power to regulate commerce with tribes has never been limited to ‘buying, selling and transporting goods’; rather, the Constitution gives Congress the power to regulate all interactions between Native Americans and non-Native Americans,” which, to me, sounds like we’re all Commerce to the Government I.

    For the record, this brief lists other cases involving both parties, Chad Everet Brackeen and Dab Haaland, aka Auntie Deb, U.S. Interior secretary. Cherokee Nations v. Brackeen and State of Texas v. Deb Haaland. The Court consolidated the cases under Brackeen v. Haaland. The author of Carole’s original letter, Daniel P. Sheehan, is counsel of record. It is titled ‘Brief of Amicus Curiae Senator James Abourezk in Support of Federal and Tribal Parties.” And dated August 18, 2022.

    The defense argument goes Sen. Abourezk is qualified to be here at the highest court in the land because he is the author of the ICAW. Then, the reason it was enacted was because of “disparate rates of Indian child removal and the unique family structures shared among tribes.” Finally, the ICAW was designed to further “the Federal government’s trust responsibility to Indian Tribes.”

The second issue: Racism

    The challengers, led by the State of Texas in the second issue, argue that there is a racial element to the Tribes choosing “to shore up tribe’s numbers” by being selective about who can adopt Tribal children. “The second issue in the case is whether ICWA violates the Constitution’s guarantee of equal protection.” This is what rings that racial bell.

    In other words the challengers are playing the race card. The would-be adoptive white parents, who are part of the challenge team, say they are being treated differently than Indians. “To treat Indian children, parents, and potential adoptive families differently from non-Indians in order to shore up tribe’s numbers.”

    They correctly ascribe the motive of the Indians to increase their numbers. Go forth and multiply, Didn’t the Bible say something like that? Besides Biblical precedent, the Indians have an even stronger case. These white folk challengers are the intellectual offspring of the people who practiced cultural genocide on Indian children throughout most of the 20th Century. That, alone, gives them the right to ‘shore up’ their number.

    In her SCOTUSblog of Nov. 8, 2022,  Amy Howe wrote about a third issue, “Texas, one of the challengers, argues that ICWA ‘has not achieved its stated ends of improving stability and security among Indian tribes,’ so that Native American children covered by ICWA ‘remain at a greater risk for abuse and neglect than other children.’”

    Except for the blatant accusation, this is the same argument made when the ICWA was first contemplated. From the Amicus’ Conclusion: “ICWA was enacted in response to the chronic failures of child welfare agencies across the country to protect the wellbeing of Indian children.”

    The millions of Tribal children living off reservation are currently subject to only the minimum standards of the ICWA in state court child-custody proceedings. But how about this: Enshrine Indian children’s welfare as treaty language, and these millions of Tribal children might then receive the full safety benefits of the Act. That is, if Texas is wrong, and there actually are some.

    Amy Howe wrote, “The Biden administration and the tribes reiterate that the treatment of Native American children has long been the purview of the tribes and the federal government. ICWA, they contend, merely provides rules for state courts to apply in cases involving Native American children — which is not commandeering, the tribes say, but instead preemption, the idea that federal laws trump state or local laws.”

Solution: Put Indian Child Welfare in the Treaty

    To my simplistic mind there’s a natural filter here which could clarify the rule of legal succession from federal to local. As I learned and wrote about last week, “In these Indian treaty cases, federal courts have ruled that under the Supremacy clause of the United States Constitution, that State laws must give way to Indian treaties.”

    So open up treaty negotiations again and include this provision in the treaty. Then when the treaty is finalized and ratified, tribes would have constitutionally enabled supremacy over the states in Indian child custody cases. But that’s probably a lot more complicated to do than to say.

Indian Boarding School at La Du Flambeau in northern Wisconsin

    There’s another not exactly hidden side to this touchy subject, the removal of Indian children from their homes and tribes, and that is the ever darkening shadow of the Indian boarding school. The ‘removal processes’ spoken of in this case included “a century of abusive removal policies” which included the now infamous Carlisle Indian boarding school model, which the Amicus calls “a systematic attempt at cultural genocide.”

    The defense argues, “Finding the ICWA unconstitutional would reverse a half century of improvements for Indian child welfare and undo an Act of Congress rooted in longstanding legal precedent. Such a repudiation would not only threaten the wellbeing of Indian children, their families, and communities, it would undermine the federal government’s longstanding trust responsibility to Tribes.”

    Consequently, it concludes, “ICWA should be upheld.”

Behind the Green Door you’ll find— Indian Boarding School Act action; Google predicts ICWA SCOTUS victory;

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