The Morongo Band of Mission Indians and four other tribes from across the country have joined the federal government to uphold a law in the US Supreme Court that gives American Indian families priority adoption of American Indian children.
In a petition filed on September 3, the tribes are essentially requesting that the High Court uphold a law enacted in the Indian Child Welfare Act, 1978, a trend among “alarmingly high percentages” of American Indian children among their children. separated from families. Non-tribal public and private agencies.
US Secretary of the Interior Deb Haaland, who is of American Indian descent, also petitioned the Supreme Court to uphold the law, while the state of Texas petitioned the High Court on behalf of Chad and Jennifer Brackin to repeal the law. filed, the claim is unconstitutional.
ICWA has faced legal challenges for more than 40 years, but over the past four years federal judges have been divided over its constitutionality.
According to the petition, filed by the Cherokee Nation Morongo of Oklahoma, “over the coming four decades, state courts have repeatedly referred to ICWA as the constitutional and child-welfare professionals who regard the procedural and substantive requirements of ICWA as the gold standard for child welfare.” has been accepted.” , Oneida Nation of Wisconsin and Quinault Indian Nation in Washington.
In its petition, Texas stated that the ICWA is a race-based system that creates a “child-custody regime for Indian children defined by the genetics and ancestry of the children”, and that it should further encourage the adoption of Indian children by non-Indians. Designed to be tough. .
Questions raised in the Texas petition include: whether Congress has the power to make laws governing state child-custody proceedings because the child is or may be an Indian, and whether the Indian Child Welfare Act is equal to the Constitution by providing the American Indian Violates security guarantees. Families’ priority in adopting American Indian children?
According to the petition, “the important constitutional questions in this case and their implications on the treatment of many vulnerable children deserve the attention of the Court.”
Challenge the law in 2017
ICWA was challenged in 2017, when Brackins joined a federal lawsuit testing the constitutionality of the Welfare Act as a plaintiff in the states of Texas, Indiana and Louisiana.
Brackins had successfully fought a state court effort by social activists to place a Navajo-Cherokee boy trying to be adopted with a Navajo family in New Mexico. However, the couple went another way when they tried to adopt the boy’s half-sister who was placed with a tribal family in Texas.
In October 2018, Federal Judge Reed O’Connor for the Northern District of Texas declared ICWA unconstitutional. The federal government appealed to the Fifth Circuit Court of Appeals in New Orleans, and in August 2019 a three-judge panel overturned Reid’s decision. But the matter did not end here.
The plaintiffs appealed again to the Fifth Circuit, only this time requesting that all 17 Circuit judges review the case and make a decision. The request was granted.
On April 21, the Fifth Circuit issued a more than 300-page opinion—a mixed bag that largely upheld the law, but in which some judges agreed that some of the ICWA provisions were unconstitutional and others constitutional, leading to consequences. was less than clear.
Now, both the plaintiff and the defendant have petitioned the country’s highest court for review of the case.
Texas noted in its petition that eight judges on the Fifth Circuit “demonstrated fully” that clarification was needed as to the limits of Congress’ authority to make laws with respect to Indians.
Brackins’ attorney Matthew D. McGill did not immediately respond to a request for comment.
The decision of whether the Supreme Court should hear the case will not affect the Breckins or their adopted children, but could determine the future of American Indian children in the future, and perpetuate the ICWA process that has existed for decades. is in.
“Our tribes continue to fight for ICWA as it ensures the best outcome for Indian children by connecting them to their families and tribal communities. We can never go back to the dark times when Indian children were thrown out of their homes and their heritage was taken away,” the petitioner tribesmen said in a statement.
According to the docket, the Supreme Court’s response to the petition of the tribes and the petition filed by the plaintiff is due on October 8.
David Simmons, director of government affairs and advocacy for the National Indian Child Welfare Association in Portland, Oregon, stressed that ICWA helped stop the centuries-old practice by the federal government and private agencies of systematically separating American Indian families. Is.
“We’re looking at almost 200 years of really tough policies and terrible practices,” Simmons said, adding, as another example, the establishment of Indian boarding schools in the 19th century that resulted in American Indian children being separated from their families. Have become.
The recent finding of mass graves in former Canadian boarding schools has prompted the US Department of the Interior to launch an investigation into the more than 350 American Indian boarding schools nationwide that were part of the government’s cultural history in the 19th and 20th centuries. were conducted under the assimilation programme.
Simmons said, “We know that (ICWA) is working very well across the country … yet some of our opponents are trying to dismantle it and have labeled it unconstitutional, there is evidence that Regardless of how well it works.” “There is a lot at stake here, and it is important that the general public understand that (ICWA) stands as a beacon in child welfare practices.”
Ken Ramirez, president of the San Manuel Band of Mission Indians in San Bernardino, said in a statement Friday that, for more than 40 years, the Indian Child Welfare Act helped reverse the tide of one of the most enduring historic attacks on Native Americans. Is. People: The forcible removal of American Indian children from their homes, tribal cultures, and tribal communities.
“We hope that the United States Supreme Court will review the matter and confirm the constitutionality of the Indian Child Welfare Act,” Ramirez said. “Those who wish to remove native children from their homes and Aboriginal communities should not be encouraged to return to the harmful and tragic practices of the past.”