The United States Supreme Court yesterday rejected challenges to the Indian Child Welfare Act, which requires that states seizing American Indian children and putting them into foster care must first try to place those Native children with relatives or other tribal members before assigning them to non-Indian families or institutions. Justice Neil Gorsuch wrote that ICWA redresses a long, ugly history of white folks separating Indian children from their families in a deliberate attempt to exterminate tribes:
Justice Neil Gorsuch, who has earned a reputation as the most knowledgeable justice on questions of Indian history and the most aggressive defender of Indian rights, joined Justice Barrett’s majority decision in full but wrote what was essentially a rebuttal to the dissenters.
The mass removal of children from their family homes in the 1950s, ’60s and ’70s, he wrote, “was only the latest iteration of a much older policy of removing Indian children from their families—one intentionally spearheaded by federal officials with the aid of their state counterparts nearly 150 years ago. In all its many forms, the dissolution of the Indian family has had devastating effects on children and parents alike. It has also presented an existential threat to the continued vitality of the tribes–something many federal and state officials over the years saw as a feature, not a flaw.”
“In adopting the Indian Child Welfare Act,” he concluded, Congress exercised its lawful authority “to secure the right of Indian parents to raise their families as they please; the right of Indian children to grow in their culture; and the right of Indian communities to resist fading into the twilight of history” [Nina Totenberg and Meghanlata Gupta, “The Supreme Court Leaves Indian Child Welfare Act Intact,” NPR, 2023.06.15].
While Justice Gorsuch notes that ICWA properly addresses systemic racism, the majority opinion did not address the arguments made by challengers that ICWA violates the Equal Protection Clause with race-based mandates (always gotta love white folks shouting racism! back at efforts to check racism). Instead, the ruling hinges on a rebuke of states’ rights absolutism:
Barrett first considered – and dismissed – the challengers’ contention that ICWA goes beyond the power that the Constitution gives Congress in Article I, which authorizes Congress to “regulate Commerce” “with the Indian Tribes.” Congress has broad – although not unlimited – power to enact laws with respect to Native Americans, Barrett explained. And although family law has traditionally been the domain of the states, Barrett acknowledged, Congress can supersede that law, just as it did in ICWA.
Barrett next rejected the challengers’ anticommandeering arguments. Two of those arguments relate to provisions in ICWA that impose requirements in involuntary proceedings to place a child in foster care or terminate parental rights and to a provision dictating placement preferences for Native American children. The challengers contended that the provisions required state and local government agencies to provide services, in violation of the 10th Amendment. But Barrett identified a “fundamental flaw” in that argument – specifically, that the requirements applied to “private individuals and agencies as well as government entities.”
Barrett was equally unpersuaded by the challengers’ third anticommandeering argument, which stems from the recordkeeping requirements that ICWA imposes on state courts. Although, Barrett wrote, the challengers “argue that Congress cannot conscript the States into federal service by assigning them recordkeeping tasks,” the Constitution actually does allow Congress to do precisely that, as a “logical consequence of our system of ‘dual sovereignty’ in which state courts are required to apply federal law” [Amy Howe, “Supreme Court Upholds Indian Child Welfare Act,” SCOTUSBlog, 2023.06.15].
Representative Peri Pourier (D-27/Pine Ridge) is mighty pleased that the Supreme Court has upheld the federal government’s power to challenge the systemic racism states have wages against Indian families:
The Indian Child Welfare Act (ICWA), enacted in 1978, was designed to address the alarmingly high rates of Native children being unjustly removed from their homes and placed in non-Native foster care and adoptive homes. It seeks to affirm the inherent right of Tribal Nations to govern their citizens, preserve the familial bonds vital to the well-being and political and cultural identity of Indigenous communities across the United States. The Supreme Court’s decision to uphold ICWA reasserts its crucial role in safeguarding the best interests of Indian children while respecting the sovereignty of Tribal Nations.
In response to the Court’s decision, Representative Pourier expressed her deep satisfaction stating, “This is a historic moment for Tribal Nations and ICWA. The Supreme Court’s ruling is a resounding recognition of the inherent rights of Tribal Nations to protect their children and the imperative of preserving our cultural identity and political status as citizens of Tribal Nations…. [W]e must do more to strengthen families of Tribal Nations, which will require collaborative work from all levels, including Tribal and State leaders and the citizens thereof” [Rep. Peri Pourier, press release, 2023.06.15].
Pourier is right that all parties in South Dakota need to do more to protect Indian families. Even with ICWA, South Dakota has been separating Indian children from their parents at a higher rate than the rest of the nation:
Since its passage, ICWA has played a key role in keeping many Native American families intact, according to tribal leaders, attorneys and child welfare experts. And while federal foster care data — the only national dataset that describes outcomes of the child welfare system —doesn’t track whether a child is covered by the law, a ProPublica analysis found that, in recent years, children identified as Native American were less likely to be taken permanently from their parents than white children once they have entered the system.
The reverse is true in a handful of states, including South Dakota. There, more than 700 Native American children — or about one of every 40 living in the state — experienced the termination of their parents’ rights from 2017 to 2021, the ProPublica analysis found. That was one of the highest rates in the country and nearly 13 times the rate for white children in the state.
“ICWA only works if you follow it,” said Marcia Zug, a professor of family law at the University of South Carolina School of Law [Jessica Kussenhop and Angel Philip, “Native American Families Are Being Broken Up in Spite of a Law Meant to Keep Children with Their Parents,” ProPublica, updated 2023.06.15].
With the Supreme Court’s upholding of the Indian Child Welfare Act, South Dakota must work harder to eliminate the systemic racism of its foster care system and follow the federal mandate to protect the integrity of American Indian families.
In 2011 NPR took on the Daugaard Duck Dynasty in a three part exposé. Pennington County’s behavior has been called shocking and Democratic former US Senator James Abourezk even urged the federal government to sue the State of South Dakota after the Guardian published a long piece on the plight of thousands of American Indian children seized by the South Dakota Department of Social Services. I even have direct personal knowledge of those horrors. Republican former South Dakota Governors Rounds and Daugaard and Attorney General Marty Jackley covered up their state’s abuses.
From Slate today…. https://slate.com/news-and-politics/2023/06/neil-gorsuch-so-good-native-americans-scotus.html
He had to be good at something, I guess.
Well ICWA is intended to keep Native children in tribal homes it has often failed. Several points come to mind.
1. Well it is a good law it does not have a mechanism in place for enforcement. A hand slap is the only conscience. It would appear to me anything that happens with regards to ICWA is after the fact.
2. Tribes fail to intervene in these cases for a lack of resources including financial, families must meet strict guidelines that are often based financially. Please remember where the poorest counties in the nation are located. On the reservations in South Dakota and reservations across the nation.
3. Placement standards are set by the state and or BIA for Native families. Tribes struggle to set placement standards that do not mimic State and BIA standards that are not alway applicable in tribal communities.
4. The state of South Dakota has made a half attempt to give tribes the ability to contract services with the state. This effort failed miserably as the state was restricting dollars they were spending on these children in their child welfare system but not allowing those same dollars being used by tribes. This would require tribes to spend dollars that their own system lacked. Tribes also wanted the state to share in the responsibility for caring for these children who are SD citizens and follow the Federal law.
5. Much of the issue is culturally based, a lack of tribal cultural acceptance has created a stalemate of issues in state standards.
Well laws are great, there has to be a financial method of following and or enforcing them. Tribes are strapped to meet the needs of their citizens everyday.
The majority of children in the SD child welfare system are Native American, they are not because of physical abuse, but physical neglect do to the financial hardships of parents.
The far white wing of the Republican Party has been working to erase tribal sovereignty in states like Montana for decades. New Mexico codified protections in 2022 but tribal nations are recognized by the federal government as political sovereigns and not a racial group. South Dakota’s current Republican governor conspired with the Trump Organization in their effort to exterminate Indigenous Americans by introducing a deadly virus to Native communities creating a raging pandemic.
While the Palestinian homeland looks like holes in the slice of Swiss cheese analogous to the illegal Israeli state, progress toward resolutions of Native trust disputes would have far more political traction after tribes secede from the States in which they reside and then be ratified to form one State, the 51st, sans contiguous borders with two Senators and two House members as there are an estimated 2.5 million indigenous living on reservations.
https://turtletalk.blog/2022/08/25/neoshia-roemer-on-icwa-as-reproductive-justice/
https://thehill.com/regulation/court-battles/4062301-supreme-court-rules-against-navajo-nation-in-colorado-river-case/
Magat majority on scotus has no problem ignoring treaties regarding water rights for Navajo tribes. GoSuck vited with three libs in favor of water rights.