ICWA & Indigenous Nations’ Right to Their Children

A demonstrator outside the Goldwater Institute in Phoenix. Photo Credit: @DefendICWA

On Thursday, October 4, a U.S. District Court for the Northern District of Texas declared the Indian Child Welfare Act unconstitutional claiming it is a “race-based statute.” The ruling ignores hundreds of years of federal Indian law recognizing Native American tribes as nations. Judge Reed O’Connor claimed. Indigenous nations are not governments at all and not to possess national interests in children born to their tribal members. Congress passed the law in 1978 in response to a study finding 25-35 percent of Native children were taken from their homes and over 80 percent placed with non-Native families. This high rate of removal falls under the United Nations’ Convention on the Prevention and Punishment of Genocide,  Section II  which defines genocide as “any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group … (e) Forcibly transferring children of the group to another group.”

In a joint statement, leaders of the four tribes named in the suit restated their commitment to protecting children of their respective nations saying in part, “If ICWA is struck down in whole or in part, the victims will be our children and our families, Native children and Native families.”
This ruling represents the culmination of years of work by the Goldwater Institute, a conservative think tank. By using the 14th Amendment’s “equal protection under the law” clause, the institute finally obtained a ruling that alleges the definition of “Indian” is illegal because it is race-based. Native attorneys I have interviewed believe the organization’s goal is to create a circuit court split and take the case to the Supreme Court. There, a very conservative court could declare unconstitutional the protections of ICWA and, by extension, make tribes, themselves, illegal. Thus, this ruling has serious implications for both the unity of Native families and the sovereignty of their respective nations. Ironically, “Indians” are not named in the 14th Amendment because when it was passed in 1868, Native Americans were not viewed as citizens of the United States by Congress, but as citizens of their Indigenous nations and thus, did not require an exemption under the amendment. Native Americans were not granted U.S. citizenship until 1924.

How ICWA does and does not work at the state court level illuminates how ignorance of the law puts Native American parents in danger of losing their children every year. Colorado is unique in that it has a state-level ICWA law on the books, two dedicated ICWA courts, and a dedicated en banc court of appeals panel for ICWA review. However, there is still a great deal of education that needs to occur. It should be noted most judges and attorneys are not required to learn Indian Federal Law in law school or to pass the bar and therefore do not know it. Even Justice Sonia Sotomayor admitted she had no familiarity with Indian Federal Law before she arrived at the Supreme Court. Allegedly, the late Justice Scalia bragged about his ignorance of it to Native lawyers and claimed to be “just making it up” as he went along.

And the results of this ignorance can be devastating to Native families. In 2011, NPR in a series about Native foster care in South Dakota found 700 Native children, a disproportionate number for their percentage of the population were being placed in foster care every year. Reporters also found that ICWA, which gives preference to placement with relatives or their tribe, was not being followed.

“Cousins are disappearing; family members are disappearing.” Peter Lengkeek, a Crow Creek Tribal Council member, told NPR 33 years after the passage of ICWA. “It’s kidnapping. That’s how we see it.”

I hope more states do more to implement ICWA fully and to understand what sovereignty means to Indigenous nations.