Editorial: Federal, state courts respect Native kids, tribes

By The Herald Editorial Board

The U.S. Supreme Court’s decision last week upholding the federal Indian Child Welfare Act was a strong reaffirmation — in a 7-2 vote — of judicial precedent, Congress’ authority and — most importantly — the sovereignty of Native American tribal nations and their interests in protecting their peoples and their cultures.

The act was adopted in 1978 following a congressional report that found that 25 percent to 35 percent of Native American children were being removed from homes by state child welfare agencies and typically placed in non-native adoptive homes or foster care or in institutions, under the privileged belief that the children were better off away from their families and their tribes. The practice of adopting Native children to white families was a continuation of the institution of Indian boarding schools — run by the government or Catholic church — that operated throughout the United States and Canada and were used to remove children from their tribal lives and communities and assimilate them into American culture following the Civil War era and the Indian Wars until the mid-20th century.

That assimilation effort — believing it necessary to “kill the Indian to save the man” as one Civil War-era boarding school founder put it — resulted in generational trauma and loss of cultural connection, Native American languages, history and customs that the nation’s 574 federally recognized tribes are now working to restore and revitalize.

The Indian Child Welfare Act sought to at least stanch the bleeding of Native culture by giving tribal governments and courts authority when a child must be removed from the family home because of turmoil or abuse, giving preference for placement first to extended family members, then members within the local tribe and followed by members of other tribes, before placement in a non-Native home is allowed.

The opinion, written by Justice Amy Coney Barrett, herself an adoptive mother, upheld the 1978 law and reaffirmed court precedent, rejecting the challenge to the law that it was beyond Congress’ constitutional authority and that family law was a matter for the states, as described by Noah Feldman, a Harvard law professor, in a recent commentary for Bloomberg Opinion.

Feldman does note that the opinion, and a concurrence by Justice Neil Gorsuch — recognized as a defender of tribes regarding issues of sovereignty — didn’t address the lawsuit’s challenge that the ICWA violated the Constitution’s equal protection clause because, it alleged, the ICWA bases adoption rights on race; Barrett’s opinion instead held that the parties lacked standing to raise the issue, leaving the question for another day, if ever.

But the issue here is not of race but tribal sovereignty, the rights that remain with Native American nations that existed before the United States. The case involves the interests of children and families who are citizens of both the United States and of their member tribes; the adoption of children, then, must consider more than the child’s race but their association within their tribal nation.

Last summer, Misty Napheahi, vice chair for the Tulalip Tribes board of directors, told The Daily Herald the case that was then going before the U.S. Supreme Court was “not actually about Indian child welfare.”

“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,” Napheahi said last August. “This could declassify us as a political class of people.”

Happily, that wasn’t the outcome.

Opponents of the Indian Child Welfare Act have claimed that the decision in Brackeen v. Haaland places the interests of the tribes above the welfare of children. Washington Post columnist George Will, in a column published Monday in The Herald, dug up two lurid examples of Indian children, returned to family by tribal courts after removal over concerns of abuse, who later died at the hands of those family members. Without a doubt, however, a plethora of stories are readily available where children came to harm at the hands of adoptive parents, foster parents or institutions.

Any competitive tally of anecdote vs. anecdote, however, won’t save the lives of children or protect their rights to their culture and heritage.

Last July, the Washington state Supreme Court upheld this state’s own Indian Child Welfare Act, regarding a case out of Snohomish County, in which an 8-year-old Ogalala Sioux boy was taken from his family and placed in protective custody, following reports of abuse, most of which, the court found, had been deemed unfounded.

Chief Justice Steven Gonzalez, writing the 5-4 majority opinion, found that both the federal and state law required the state Department of Children, Youth and Families to use “active efforts,” “timely and diligent” to prevent the breakup of an Indian family before removal of a child, unless not removing the child would subject the child to substantial and immediate danger or threat of danger.

That decision places a responsibility on the state to provide support to tribal families before removal becomes necessary, support that could include parenting resources, mental and behavioral health treatment and housing. But it is support that is mandated by state and federal law, Gonzalez wrote “to end the widespread abusive practice of removing Native children from their families and destroying Native communities.”

In other words, saving the Indian, the child and the culture.