The nation’s highest court could soon decide a federal law meant to keep Indian children with their families and tribes is racist.
The Indian Child Welfare Act of 1978, known as ICWA, was passed by Congress as a response to nationwide Indian child removal policies which saw more than one-third of native children being systematically taken from their homes by state social-service workers and delivered to non-native families and institutions. They were stripped of their identities and assimilated into America’s predominantly white society. Remnants of such policies are still scattered throughout Oklahoma today, mostly in the form of federally funded religious boarding schools and their survivors.
The ICWA prioritizes family and tribal placements for Indian children in child custody cases and requires states to notify tribes when those proceedings occur.
A white family from Texas said that should change. Plaintiffs in Brackeen v. Haaland argue the law violates the Constitution by discriminating against non-native families who want to adopt Indian children.
If the U.S. Supreme Court agrees, Native children will be subject to removal from their tribes for the first time in four decades. Other federal Indian laws could be challenged on the same grounds, putting those longstanding protections in peril.
“If we were to lose on an equal protection challenge, there is no aspect of tribal sovereignty that isn’t at risk,” said Chrissi Ross Nimmo, the Cherokee Nation’s deputy attorney general and expert on Indian child welfare law.
Being a tribal citizen is a political distinction, not a racial one, Nimmo said. Tribes are sovereign nations in relationship with the U.S. government via treaties, some of which were established in the earliest years of American independence.
The agreements were between nations, outside the structure that dictates the relationship between states and the federal government. The deals, often forced upon Natives and then violated by the U.S., were largely an exchange of peace and preservation for aid in warfare — and later land, as colonists pushed west.
Mike McBride III, a federal Indian law attorney in Tulsa with the Crowe and Dunlevy law firm, said that relationship sets the foundation for the ICWA and laws governing gambling, trade and environmental protection in tribal territories.
Challenges to Indian laws on the basis of race discrimination are not new. McBride referred to a pending federal court case out of Washington state in which casino company Maverick Gaming argued that tribes having the exclusive rights to certain kinds of gambling under the Indian Gaming Regulatory Act created a discriminatory monopoly.
The cases have much in common. Both plaintiffs are represented by the Washington D.C. law firm Gibson Dunn. Both make the case that a federal Indian law discriminates based on race, and both pose a threat to the legal right of self-determination of tribes as their own governments.
The question of tribal sovereignty has been debated since Chief Justice John Marshall issued an opinion in the 1831 case Cherokee Nation v. Georgia, in which Marshall called tribes domestic dependent nations, said Gary Allison, a constitutional law professor at the University of Tulsa’s College of Law.
“By dependent, he meant that though they still have governmental existence, that existence is dependent upon a broader country allowing it,” Allison said, “That’s the whole basis for the sovereignty movement among Indian nations.”
The equal protection clause should not apply to tribes because they are recognized as sovereign nations in the constitution, Allison said, pointing out that Native people weren’t considered U.S. citizens until 1924.
Some States Plan For The Worst
Some state legislatures are trying to codify the language of the Indian Child Welfare Act to get ahead of the potential federal-level overturn.
Oklahoma is among 12 states with a form of the Indian Child Welfare Act in place, according to Turtle Talk, a blog run by three Indian law professors in Michigan. Four other states considered similar laws this year. All failed or stalled in committee.
Nimmo said if any part of the federal Indian Child Welfare Act is overturned on the basis of racial discrimination, those state laws will also likely be ruled unconstitutional in state courts.
Oklahoma passed its version in 1982. While the state law adds some protections for Oklahoma tribes by requiring the state to notify them of all child welfare cases involving Indian children, Nimmo said it doesn’t adopt the full language of the ICWA, making it unclear if the state statute would survive a constitutional challenge.
“The federal act only requires tribes to be notified of involuntary proceedings. The Oklahoma Indian Child Welfare Act requires the state to notify tribes of both involuntary and voluntary child welfare proceedings,” Nimmo said.
Voluntary means the parents of the child consent to foster care and adoption, while involuntary means the state is taking a child against the wishes of the parents.
“I don’t know if that enhanced notification requirement survives if the underlying law were to be struck,” Nimmo said. “But it might, because it is the state’s policy to cooperate with Indian tribes.”
How Life In Oklahoma Could Change
Overturning of the Indian Child Welfare Act wouldn’t automatically reverse all federal Indian laws in Oklahoma and beyond, but it would open the door for rampant lawsuits challenging them, Nimmo said.
She used the attempts to dismantle tribal gaming laws as an example. The overturn of the ICWA would mean the race-based argument in the Maverick Gaming case would gain precedent. If gambling is extended to private and government entities beyond native tribes and their members via a court decision, revenues it yields to those tribes will also be spread out, she said.
Tribal gaming revenues fund social services, environmental protection and disaster relief in their nations. While those funds are supplemented by federal dollars, reduced gaming revenue would mean less money allocated by the tribes to provide for their citizens. The chipping away of tribes’ ability to self-govern could be carried out one lawsuit at a time, Nimmo said.
Tribes also use money they collect to bolster non-Native infrastructure within their reservations, Nimmo said. For example, the Cherokee Nation uses money collected from allowing its citizens to register vehicle tags to donate to public schools within its boundaries, as well as volunteer fire stations and municipal police departments.
“These are all things that Cherokee Nation provides in our community, not just to Cherokee citizens. If they’re giving money to volunteer fire departments, that impacts everyone,” she said.
Overturning the ICWA would be devastating to native and non-native communities in the state, said Sarah Adams, a Choctaw Nation citizen and co-founder of the non-profit Matriarch, which focuses on promoting social welfare for Native women through education, community building, and other direct services.
“Our tribes contribute so much to our state that without them our schools would be less funded, our roads would be worse, our infrastructure would be worse,” Adams said. “Not to mention the cultural piece we add to the state.”
Adams said tribes and the communities they support across the state are threatened under the guise of deciding what’s best for native children in foster care.
“It can be seen as another step in the genocide of our people,” Adams said. “It’s about the survival of a people, of cultures, languages, of ceremony and art. It’s everything. And the fallout always happens first for women and children.”
Lionel Ramos is a Report for America corps member who covers race and equity issues for Oklahoma Watch. Contact him at 405-905-9953 or [email protected]. Follow him on Twitter at @LionelRamos_.
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