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.

Here is my latest article at Indian Country Today: We Are Still Wounded by Wounded Knee.

I wrote it in response to all the moving social media coverage I was seeing on Facebook and Twitter and Youtube about the Dakota 38 riders retracing their ancestors' path back to their homelands in Minnesota and commemorating the hangings of 38 Dakota men, the largest mass hanging in U.S. history for the Dakota Sioux Uprising in 1862.  If you want to learn more about this ride I highly recommend this documentary about it:



This contrasted greatly in my mind with the lack of coverage of these important events in our people's history nationally by the mainstream media.  As I say in the article,

There are always things happening in Indian country that never make it into the mainstream news, and we Indian people are accustomed to it. We never expect the issues near and dear to our hearts to be covered 24 hours on CNN or to trend on Twitter or on Buzzfeed. And yet, this year, I felt it more than usual.

And then, three days after the Dakota 38 riders made it to Mankato, Minnesota the site of the hangings, a tweet about the Wounded Knee anniversary featuring a photo of the burial of the Lakota victims with my twitter handle attached began filling up my twitter feed.  I clicked on the photo only once but the image remained burned into my mind.


Not the kinds of things the rest of America was thinking about during the holiday season.  In fact, what was on TV that day was 3 and half hours of the Washington Redsk*ns losing yet again.  Yes, a football team in our nation's capital with an ethnic slur against us got all the coverage.  Yeah, this guy's team:



I couldn't help but to think about the stories I'd been told about about both the Minnesota Sioux Uprising and Wounded Knee.  In my family, we have a personal story about each of them.  The first has to do with my grandmother's great-grandfather Owl Man.  The Santee Dakota were refugees and fled Minnesota and came to our people, the Yankton Dakota Sioux in South Dakota.  We took them in, but Owl Man was forced to make a terrible sacrifice to protect the people from the wrath of the U.S. Military.  He had to kill one Santee to save the rest and our own people from mass slaughter.  It was a decision that haunted him for the rest of his life.  Here are some photos of him taken during his visit to Washington DC in 1867 as part of the Yankton Delegation.  In the photo taken with President Andrew Johnson at the White House he is the only one in an eagle feather headdress.

Owl Man

Yankton Sioux Delegation at White House, 1867

It also made me think of my grandmother's uncle the Rev. Charles Cook who was the mixed-blood Yankton Dakota Episcopalian minister at Wounded Knee during the massacre.  She told me how he had turned his church into a hospital during the massacre and with Dr. Charles Eastman, another Dakota worked tirelessly to save the lives of their people.  She told me he died two years later of a broken heart.  He was only in his 20's at the time.  Funnily enough, in the HBO movie done about Charles Eastman's life he is portrayed by a balding, middle-aged white man.  However, Eastman is more accurately depicted by Canadian Saulteaux actor Adam Beach.

Actor Adam Beach (and as Charles Eastman)

The actual Dr. Charles Eastman

Scene from HBO's Bury My Heart at Wounded Knee of Rev. Charles Cook's church being used as hospital with holiday decorations still up and a banner "Peace on Earth, Goodwill to Men."