Tulalip lawyer: Native rights at risk in pending SCOTUS decision

TULALIP — Lawyer Lisa Koop saw “a lot of intergenerational trauma” while working on child welfare cases for the Tulalip Tribes in the 2000s.

Some tribal members “didn’t have parenting skills” and didn’t learn any “because their parents were in the boarding schools,” said Koop, now the tribes’ senior attorney.

Federal Native American boarding schools existed across the U.S. and here in Tulalip as a product of federal assimilation policies. For almost a century, federal officials forcibly took Indigenous children from their families and placed them in military-style schools where abuse, disease and death were common. Boarding school survivors carried that trauma. Many passed it on to their kids.

Breaking the cycle, Koop said, starts with giving parents the support and resources to heal. It also starts with letting parents stay with their kids and raise Indigenous children in their culture, she said. For over four decades, the Indian Child Welfare Act has given tribal governments authority over the adoption of Native American children.

Now, the U.S. Supreme Court could roll back those protections.

In February, the court decided to hear challenges to the constitutionality of the 1978 legislation. Justices are expected to hear the case this fall.

“ICWA,” as legal experts call the act, was an effort to keep families together and keep children with their tribe. It requires child placement cases to be heard in tribal courts when possible, and it allows a child’s tribe to take part in all court proceedings.

If a child is legally removed from their home due to family turmoil or abuse, it requires Native American children to live with extended family members, other tribal members or other Native American families — or at least to make an effort prior to placement in non-Native homes.

According to a 1978 congressional report, prior to the Indian Child Welfare Act, somewhere from 25% to 35% of all Native American children were removed from their homes by state child welfare and private adoption agencies. At the time, the adoption rate of Native American children was 19 times higher than non-Natives. The foster care rate was 10 times greater. And in the states surveyed, about 85% of Native children removed from their homes were placed with non-Native families.

Separating Indigenous children from their families, communities and culture was a continuation of the federal Indian Boarding School era, Koop said. Parenting skills and cultural connections were damaged.

Misty Napeahi, vice chair of the Tulalip Tribes, worked for the tribes’ child welfare department for about a decade. She has seen the benefit of keeping children in the community.

“That way they don’t come back home as broken adults,” Napeahi said.

Healing is ongoing, Koop said. If Indian Child Welfare Act protections are overturned, that progress could be lost.

Koop has been personally touched by the governments child-removal policies. She knows the damage that can be done by growing up in a non-Native family, rather than with an Indigenous community.

The Canadian government took her mother, then 3 years old, and placed her with a white family where she was raised until 17.

“The emotional and psychological consequences are far reaching,” Koop said. “These consequences are life lasting and passed down through the generations. When you are stripped of your culture, it’s difficult to fit in anywhere, and this leads to serious identity crisis and despair.”

‘Washington has gone a step further’

In Washington, the state’s high court narrowly reaffirmed a commitment to keeping Native American families together in late July.

In a 5-4 split, the court ruled the state is required to help Native American families stay together before placing a child in emergency care.

The case, appealed from the Snohomish County Superior Court, hinged on whether the state acted in accordance with Washington’s Indian Child Welfare Act when an 8-year-old Oglala Sioux child was taken from his family and placed in protective custody.

“We recognize that the Court of Appeals reached a different conclusion based largely on (the federal) ICWA,” Chief Justice Steven Gonzalez wrote. But, he continued, breaking up the family before taking the child into temporary care, then keeping the child in care, was a violation of the Washington Indian Child Welfare Act.

“The court recognized that whatever the federal Indian Child Welfare Act says, Washington has gone a step further,” said Tara Urs, special counsel for civil policy and practice at the King County Department of Public Defense.

The state Legislature passed its Indian Child Welfare Act in 2011, seeking to build on lessons learned while handling Indian Child Welfare cases since 1978, when the federal law was enacted.

The most recent state Supreme Court ruling affirms this.

In the majority opinion authored by Gonzalez, the court found “active efforts” to keep a family together need to happen in the earliest hearings. This means the state will now be required to provide support as soon as they see problems undermining family unity. That support could come in the form of housing, parenting courses, and mental or behavioral health treatment.

In the Snohomish County case, state workers knew one parent was struggling with substance use, but didn’t do anything to help. The family destabilized. Then the state took the child at a shelter care hearing.

The state court emphasized the historical significance of keeping Indigenous families together.

“Historically, however, Native children were separated from their families not because of any danger to them but, instead, in an effort by the government to destroy Native tribes and nations,” Gonzalez wrote in the majority opinion. “… To end the widespread abusive practice of removing Native children from their families and destroying Native communities, Congress and the Washington State Legislature passed the Indian Child Welfare Act (ICWA) and the Washington Indian Child Welfare Act.”

Dissenting justices argued the state statute doesn’t require proof of “active efforts” prior to an emergency removal.

“The whole purpose of the emergency removal is to keep a child safe on a short-term basis while the dependency proceedings continue,” Justice Debra Stephens wrote.

The majority opinion builds from an earlier state Supreme Court decision, which ensured the Washington Indian Child Welfare Act would be invoked as soon as a court had a “reason to know” a child is an Indigenous child.

In the 2020 case, a judge in a lower court ruled there wasn’t enough “reason to know” the children were Indigenous under state law, suggesting the state’s Indian Child Welfare Act didn’t apply. The Supreme Court found lower courts had “reason to know” when both parents said they were Native American.

‘This could declassify us as a political class’

If the U.S. Supreme Court were to declare some pieces of the Indian Child Welfare Act unconstitutional, Washington state could maintain its protections.

But current challenges to the federal law also put state law at risk.

The case, Brackeen v. Haaland, includes several challenges to the Indian Child Welfare Act, including those on the basis of alleged violations of “the anti-commandeering doctrine,” which prohibited the federal government from issuing commands directly to states. The challenge also cites the “equal protection” clause of the Fourteenth Amendment, arguing that it’s a policy based on race.

If the Supreme Court were to find the federal act violates the anti-commandeering doctrine, Washington’s law could remain intact, according to legal experts. But the state law would be under threat if the federal law was found unconstitutional.

One of main concerns with the Plaintiff’s argument that the Indian Child Welfare Act violates the Equal Protection Clause, Koop said, is it “mischaracterizes the core aspects of tribal membership and native extended kinship.” Native Americans are a political class of people, not a race-based group, she said.

The purpose of the Indian Child Welfare Act is to keep Native families in-tact and if not at a minimum staying connected to and learning their Native culture and heritage, she said. The legal challenge in Brackeen “really stands to weaken the protections for Native children.”

A non-Native family — the Brackeens — sued after struggling to adopt a Native child, because the Navajo tribe found an Indigenous family to host the boy. So the Brackeens challenged the Indian Child Welfare Act.

The case is a direct challenge to tribal sovereignty, Napeahi said.

“This is actually not about Indian child welfare,” Napeahi said. “… The actual issue is it is the first step in the Supreme Court trying to negate the trust responsibility of the federal government to federally recognized tribes. This could declassify us as a political class of people.”

In late June, in deciding Castro-Huerta v. Oklahoma, the U.S. Supreme Court ruled 5-4 that the state of Oklahoma had the power to prosecute a non-Native man for the abuse of his Native American stepdaughter on a reservation.

In the majority opinion, Justice Brett Kavanaugh wrote: “Indian country is part of the State, not separate from the State.”

Kavanaugh’s “framing of tribal jurisdictions as state ‘territory’ does not bode well for tribal sovereignty before the Court,” said Anthony Broadman, an Indigenous rights attorney, in an interview with The Daily Herald last month. The reasoning could be cited in taxation, civil jurisdiction and other cases, he said.

“We know that it’s in the best interest of an Indian child to be in an Indian home, where the child is growing up connected to their culture and community in some way,” Koop said. “As tribal nations we are still in a state of recovery and trying to heal from the federal government’s assimilation policies. If ICWA’s protections for Native children are overturned, our ongoing recovery as nations is at risk.”

Isabella Breda: 425-339-3192; isabella.breda@heraldnet.com. Twitter: @BredaIsabella.