Janice Beller

Published February 2022

While most folks rush in and out of their local post office, indifferently dropping off or picking up mail on their way to somewhere else, Malissa Poog remembers the Blackfoot Post Office with an entirely different set of feelings.  Melissa, a member of the Shoshone-Bannock Tribe, fondly remembers often visiting the post office with her mother as a child.  While there, she would look at a series of murals painted on the walls of the building, each depicting people who looked like her, busily working on the tasks of life in peace.

The murals, painted by the artist Andrew Standing Soldier, “showed life prior to the boarding school era,” remembers Melissa, “it was a snapshot of my people that always felt tranquil.”  The older she got, however, Melissa began to recognize the great disparity that exists between the mural’s scenes and the reality for her tribe and its children.

Melissa’s discovery eventually led her to a career in Tribal Social Services.  Her work is a labor of love over the last 25 years.  Today, as the Shoshone-Bannock Tribal Social Services Manager, Melissa spends her days working with tribal families, connecting them to resources, support, and assisting adults looking to reconnect with their tribal ties.  Too often those ties were severed while tribal members were children, many times as a result of a child protective act (“CPA”) case ending in the termination of parental rights.

Making the situation even more traumatic, the termination of parental rights to an Indian child also meant, functionally, the termination of connection between the child and his or her tribe.  These connections, Melissa notes, are critical to the survival of the tribe and the preservation of its history, culture, and traditions.  “Adults coming back to the tribe struggle,” she says, “because they have lost the values unique to the tribe.  They feel like they do not fit in either world – the white or the Indian – and it is difficult to reconnect.”

ICWA at the Crossroads

It also helps to explain why the current potential for a major change in Indian Child welfare policy concerns Melissa so greatly.  Currently, the Supreme Court of the United States is poised to consider whether to grant certiorari to a block of cases challenging the constitutionality of the Indian Child Welfare Act (“ICWA”).

The challenge is real and the potential impact to tribes fighting to keep their children is substantial.  “ICWA helps us fight to preserve the connection between a child and his or her tribe.”  Melissa notes, “[t]ribal children placed in the child welfare system without ICWA stand to lose so much more; their community, their tribe, their culture.  We lost so many children before….”  Melissa’s voice trails off and for a moment, it is easy to feel the hurt, anger, and fear the current situation creates for her.  “ICWA is in danger and not everyone knows it yet.  Some tribes are too trusting and take for granted the value ICWA provides.”

Understanding the weight of the current court battle first requires an understanding of the fight undertaken by America’s Indian tribes to secure the rights established in ICWA, over 40 years ago.

Responding to the Indian Boarding School Era

Congress passed the Indian Child Welfare Act in 1978, in response to significant concerns that Native children were still being disproportionately removed from their homes and tribes, when compared to non-Native children.[1]  Even after the closure of the Indian boarding schools, it was alleged that government child welfare entities would systematically remove Native children from their homes, doing so without first establishing any legitimate basis for removal.[2]

This policy silently replicated the atrocities experienced by tribes in the earlier days of Indian boarding schools, where it is estimated that 83% of Native children were removed indiscriminately from their tribes and placed in state-supported facilities.[3]

At the peak of the boarding school era, 367 schools existed in the U.S.[4]  In those facilities, children were forced to wear non-native clothing, could not speak their native languages, or participate in native traditions or ceremonies.[5]  Schools isolated the students from their families and tribes with the expressed purpose to “kill the Indian, save the man.”[6]  Often, children taken from their families never returned home, succumbing to rampant abuse and unchecked disease.[7]

In this context, the road to becoming law was not easy for ICWA.  Congress held multiple hearings and investigated the situation for over four years before enacting the legislation.[8]  In the hundreds of pages of documents creating the legislative record for ICWA, investigators concluded that in the 1970’s, “up to 35% of American Indian children lived in foster care, adoptive care, or institutions.”[9]  Instead of a blanket policy of ‘forced assimilation’ with the boarding schools, governmental agencies utilized state-run health and welfare agencies to remove children, predicated on ill-informed judgments about the conditions present on tribal reservations.[10]

One out of every three Indian children were still being taken, involuntarily, from their homes and tribes.  Instead of death from abuse and disease, the ties between child and tribe were permanently severed by state-sanctioned foster care placement and adoption.    

Child Welfare’s Gold Standard 

When President Jimmy Carter signed ICWA into law on November 8, 1978, it required a substantial shift in how state agencies approached child welfare cases involving Indian children.  Once established that a child of concern is or may be an Indian child, CPA courts must confirm that the responsible child welfare agency has notified the child’s potential tribe of the open child welfare case.[11]

For any child custody case involving an Indian child domiciled on tribal land, the tribe has exclusive jurisdiction over the child and may remove the case to tribal court.[12]  For those cases that originate from tribal lands, the tribe has concurrent jurisdiction in the case.[13]

What Does ICWA Do? ICWA governs State child-custody proceedings in multiple ways, including: (1) by recognizing Tribal jurisdiction over decisions for their Indian children; (2) by establishing minimum Federal standards for the removal of Indian children from their families; (3) by establishing preferences for placement of Indian children with extended family or other Tribal families; and (4) by instituting protections to ensure that birth parents’ voluntary relinquishments of their children are truly voluntary.  *Box 2*

One of the primary improvements mandated within ICWA is the requirement that the state utilize “active efforts” to reunify a child identified as an Indian child with his or her biological parents.[14] For non-Indian children, the standard is “reasonable efforts,” which is generally considered a slightly lesser level.

A state court may terminate an Indian child’s biological parent’s rights only once the state has made its case beyond a reasonable doubt, as compared to the clear and convincing standard used in non-Indian child proceedings.[15]  Additionally, the State must offer the testimony of a Qualified Indian Expert, who must conclude that a parent’s or Indian custodian’s continued custody of the Indian child will result in serious emotional or physical damage.[16]

Another important difference are the rules around foster placement of an Indian child.  Long before the Families First Act firmly established a requirement for kinship placement, ICWA mandated that Indian children must, wherever possible, be placed with extended family or other tribal foster families.[17]  Why is this important?  Melissa has seen the impacts of placing Indian children in non-Indian foster or kinship placements.  “Even if foster parents want to do right by an Indian child, there is no guarantee the community or extended family will,” she says, “these children are subjected to fear and hatred, judged in the community, and lack a sense of acceptance.”

Together, these protections, in addition to many others built into ICWA, create what has been called the ‘gold standard’ of child welfare; a structure of checks, balances, resources, and heightened judicial oversight that gives Indian families and tribes every opportunity to prevent the loss of children from tribal communities.[18]  This standard and its disproportionately high use of limited resources, however, has not gone without judicial challenge.

Legal Challenges to ICWA

Unsurprisingly since 1978, multiple groups have challenged ICWA.  Over time, and with the changing of the U.S. Supreme Court’s composition, ICWA’s scope has been modified.  In Mississippi Band of Choctaw Indians v. Holyfield, twin children born to members of the Mississippi Band of the Choctaw Indian tribe were born off the reservation and adopted (with the parents’ consent) by non-Indian parents, the Holyfields.[19]

The mother attempted to locate an adoptive family or relative on the reservation to take the children, but was unsuccessful in doing so.[20]  She moved off the reservation solely for the purpose of giving birth and when the tribe found out two months after the State finalized the adoption, they filed suit.[21]  The tribe claimed it had exclusive jurisdiction and sought to reverse the previous adoption order.[22] 

Both the trial court and Mississippi Supreme Court upheld the trial court’s original decision that because the children were not born, nor resided, on the reservation, ICWA did not apply.[23] 

The Supreme Court of the United States, however, reversed the lower court decisions, holding that ICWA does apply to the adoption of Indian children, provided the child(ren) or biological parents resided on the reservation.[24]

In Justice Brennan’s majority opinion, he noted that “[t]hese congressional objectives make clear that a rule of domicile that would permit individual Indian parents to defeat the ICWA’s jurisdictional scheme is inconsistent with what Congress intended.  The appellees in this case argue strenuously that the twins’ mother went to great lengths to give birth off the reservation so that her children could be adopted by the Holyfields.  But that was precisely part of Congress’ concern.  Permitting individual members of the tribe to avoid tribal exclusive jurisdiction by the simple expedient of giving birth off the reservation would, to a large extent, nullify the purpose the ICWA was intended to accomplish.”[25]

Chipping Away at ICWA’s Scope

The tide began turning against ICWA in the 2013 Adoptive Couple v. Baby Girl decision, where the Supreme Court held that several sections of ICWA apply only to biological fathers with custodial rights to an Indian child.[26] The case focused on a baby girl whose father was a registered member of the Cherokee Nation, but who had no formalized custody of the child because he and the child’s mother terminated their relationship.[27]  While he privately told the mother he was not interested in parenting the child, he reacted differently when he realized his child was set to be privately adopted.[28]  He objected, claiming his rights under ICWA, and the state court awarded him custody of the little girl.[29]

The identified adoptive parents appealed to the Supreme Court of the United States, who reversed the lower court decisions.[30]  The Court held that for an Indian child without a formalized relationship to his or her father, ICWA does not apply.[31]  Additionally, the Court held that ICWA’s requirements for active efforts to preserve the Native American family do not apply if no other party (presumably a tribal party) steps forward to seek adoption of an Indian child.[32]

The decision rocked the child welfare world, not only because it left the future of ICWA uncertain, but because it led to a worst-case scenario for the young girl; the case began in 2009, the biological father was awarded custody in 2011, and custody of the child was returned to the adoptive couple in late 2013.  For the tribe, it was a reversal of fortune that foreshadowed the legal challenges happening now.

Zeroing in on the New Fight

Just five years after the final decision in the Baby Girl case, multiple cases directly challenging the constitutionality of key ICWA provisions began making their way through the federal courts.  The cases surviving an initial appellate review all come from the Fifth Circuit Court of Appeals.  While a few cases arrived at Courts of Appeal in the Second, Eighth, and Ninth Circuits, none of the cases were decided on substantive legal grounds tied to ICWA.

In fact, of the three cases taken up by the Ninth Circuit Court of Appeals since Baby Girl, all of them were summarily addressed without the bench commenting on ICWA.  The Eighth Circuit examined a basic jurisdictional issue related to ICWA and quickly upheld the tribal court’s exclusive and primary jurisdiction for incidents occurring on tribal land with Indian children.[33]  The battle for ICWA, it seems, comes from deep in the heart (and tribes) of Texas.

The Anti-Commandeering Question One of the central issues in the potential Supreme Court cases questions whether the federal government, through ICWA and the judicial system, has impermissibly allocated state resources without the authorization of the state involved.  The basic “anti-commandeering” doctrine notes: “[t]he Constitution confers on Congress not plenary legislative power but only certain enumerated powers, and conspicuously absent from those is the power to issue direct orders to the governments of the States.”   The challenge?  This directive conflicts with the Supremacy Clause, which requires state courts to follow validly enacted federal laws – like ICWA.  “Typically, if a federal law is enforceable in state courts or preempts state law, no “commandeering” arises from the fact that state courts must apply the federal enactment—rather, this is what the Supremacy Clause demands.”  Since the enforcement of ICWA occurs directly through the judicial intervention of a child welfare case, the question before the Fifth Circuit was whether federal law commandeers state courts.  The judges acknowledged, prior to their analysis, that an overlap exists.  **Box 3**

Awaiting Certiorari: Brackeen v. Haaland

Over the last two years, four cases in the Fifth Circuit have put ICWA’s fundamental provisions front and center of judicial review.  These cases, collectively identified under the Brackeen v. Haaland umbrella, challenge significant portions of ICWA, and the Fifth Circuit, en banc, split on the issues presented.[34] 

The cases have garnered substantial attention by multiple states, numerous tribes, and additional special interest groups, all of whom are trying to advocate for their own special mix of affirmations and reversals.

Why?  The problems created by the Fifth Circuit are stated succinctly in the Petition for Certiorari Review submitted in Brackeen v. Haaland,

“[a]cross six splintered opinions, eight judges concluded that all three of ICWA’s placement preferences were constitutional, six judges concluded that all three violated equal protection, and two judges concluded that at least the third placement preference was unconstitutional, resulting in an affirmance of the district court’s invalidation of that provision. A different majority of the en banc court further held that certain provisions of ICWA violated the anti-commandeering doctrine, and an equally divided court affirmed the district court’s holding that the preferences unconstitutionally commandeered state agencies. Yet another majority of the Fifth Circuit, however, upheld the placement preferences as applied to state courts based on the conclusion that the anti-commandeering doctrine provides no protections to state judiciaries.”[35]

While the Supreme Court will not make its decision on the petitions until sometime in January, most leading court experts agree that based on the split within the circuit, there is a high degree of likelihood the Court will take up these cases.  Given the differences in the composition of the Court from 2013 to now, the end result is unclear and troubling to tribal advocates like Melissa.

Why ICWA Matters

When asked why ICWA matters to her tribe, Melissa’s answer is quick and definite, informed by her twenty plus years of experience.  “Indian children are the children of the tribe.”  She pauses and then adds, “[w]e must get states to recognize that the tribe is a child’s family.”  She notes as an example, “[w]hen the boarding school children came home and had children of their own, they were unable to raise them.  Those children, as adults, came home traumatized and with problems.  It was the Grandparents in the tribe that took over parenting responsibilities for their grandchildren, and in this way, began to heal the damage caused by the boarding schools,” said Melissa.

Without that transfer of history, culture, and language to the next generation of tribal members, a crisis looms for America’s smaller tribes as their elders succumb to time.  The Kootenai Tribe of northwestern Montana and northern Idaho exemplifies this dire problem.

The Kootenai are a small tribe with a “language isolate:” a language which stands alone, unrelated to any other tribal tongue.[36] 

In the 1970’s, linguists and sociologists began recording the elders telling the stories of the tribe, but failed to appreciate the loss of new language speakers who could understand the stories.[37] 

The fix is not an easy one.  For a tribal member to gain fluency in the Kootenai language with the proper context, tone, and syntax, it requires a lifetime of exposure, instead of an intensive workshop or written primer.

Today, this is a pervasive problem among the Indian tribes of the United States.  “The U.S. Census Bureau reported in 2011 that the 169 Native North American languages it tracks have only about 375,000 total speakers; the 10 most prominent languages account for about three-quarters of them.”[38] 

The United Nations identified 140 languages within the U.S. that are “dying,” and most belong to Indian tribes.[39] 

Now, instead of battling a concerted effort to “remove the Indian from the man,” tribes face losing culture and heritage due the loss of its treasured elders, who die without passing on the knowledge they have guarded for generations.

“Today, this is a pervasive problem among the Indian tribes of the United States.”

The Role of Practitioners

While an urgent situation exists every time the state removes a child from his or her home, when an Indian child is removed from his or her family, a companion risk of disconnection from the tribe’s history, culture, and language exists.  When removal of a child cannot be prevented, it is critical that child protection practitioners support the effort to identify Indian children quickly. 

This process could require something as simple as establishing parental ancestry, or something as technical as confirming a child’s paternity.  Confirming a child’s ICWA status gives the tribe a chance to engage as early as possible and opens up additional resources to assist the child and parents with reunification.

“ICWA gives us the resources and authority to continue to look after our tribe’s children,” Melissa says.  “The people in our tribe must be committed to making it work, but,” she notes, “we are resilient.”

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Janice Beller served as a child protection GAL and spent seven years working on the Child Protection team at the Idaho Supreme Court.  After serving as a Deputy Criminal Prosecutor for the Cities of Boise and Meridian for five years, she currently handles a child protection calendar in Canyon County.  She remains hopeful that someday, her guitar-playing teenager will expand his repertoire of guitar solos and playing prowess beyond his beloved Metallica.

The author wishes to express her thanks to Debra Alsaker-Burke, for her critical feedback and insightful suggestions on this topic as the article took shape. 

The Brackeen v. Haaland Cases Haaland v. Brackeen  (Petition 21-376) Issues: (1) Whether various provisions of the Indian Child Welfare Act of 1978 — namely, the minimum standards of Section 1912(a), (d), (e), and (f); the placement-preference provisions of Section 1915(a) and (b); and the recordkeeping provisions of Sections 1915(e) and 1951(a) — violate the anticommandeering doctrine of the 10th Amendment; (2) whether the individual plaintiffs have Article III standing to challenge ICWA’s placement preferences for “other Indian families” and for “Indian foster home[s]”; and (3) whether Section 1915(a)(3) and (b)(iii) are rationally related to legitimate governmental interests and therefore consistent with equal protection. Cherokee Nation v. Brackeen  (Petition 21-377) Issues: (1) Whether the en banc U.S. Court of Appeals for the Fifth Circuit erred by invalidating six sets of Indian Child Welfare Act provisions — 25 U.S.C. §§1912(a), (d), (e)-(f), 1915(a)-(b), (e), and 1951(a) — as impermissibly commandeering states (including via its equally divided affirmance); (2) whether the en banc Fifth Circuit erred by reaching the merits of the plaintiffs’ claims that ICWA’s placement preferences violate equal protection; and (3) whether the en banc Fifth Circuit erred by affirming (via an equally divided court) the district court’s judgment invalidating two of ICWA’s placement preferences, 25 U.S.C. §1915(a)(3), (b)(iii), as failing to satisfy the rational-basis standard of Morton v. Mancari. Texas v. Haaland  (Petition 21-378) Issues: (1) Whether Congress has the power under the Indian commerce clause or otherwise to enact laws governing state child-custody proceedings merely because the child is or may be an Indian; (2) whether the Indian classifications used in the Indian Child Welfare Act and its implementing regulations violate the Fifth Amendment’s equal-protection guarantee; (3) whether ICWA and its implementing regulations violate the anticommandeering doctrine by requiring states to implement Congress’s child-custody regime; and (4) whether ICWA and its implementing regulations violate the nondelegation doctrine by allowing individual tribes to alter the placement preferences enacted by Congress. Brackeen v. Haaland  (Petition 21-380) Issues: (1) Whether the Indian Child Welfare Act of 1978’s placement preferences — which disfavor non-Indian adoptive families in child-placement proceedings involving an “Indian child” and thereby disadvantage those children — discriminate on the basis of race in violation of the U.S. Constitution; and (2) whether ICWA’s placement preferences exceed Congress’s Article I authority by invading the arena of child placement — the “virtually exclusive province of the States,” as stated in Sosna v. Iowa — and otherwise commandeering state courts and state agencies to carry out a federal child-placement program.                                                                                                                                       *Box 4*

Endnotes

[1] Indian Child Welfare Act (ICWA), Child Welfare Information Gateway, https://www.childwelfare.gov/topics/systemwide/diverse-populations/americanindian/icwa/ (last visited Dec. 7, 2021).

[2] Id.

[3] The National Native American Boarding School Healing Coalition, A Primer on American Indian and Alaska Native Boarding Schools in the U.S., 1 Healing Voices, June 2020, at 1. https://secureservercdn.net/198.71.233.187/ee8.a33.myftpupload.com/wp-content/uploads/2021/09/NABS-Newsletter-2020-7-1-spreads.pdf.

[4] Id at 9.

[5] Id at 2.

[6] History and Culture: Boarding Schools, Northern Plains Reservation Aid,  http://www.nativepartnership.org/site/PageServer?pagename=airc_hist_boardingschools (last visited Dec. 7, 2021).

[7] The National Native American Boarding School Healing Coalition, note 3 at 3.

[8] Lynelle Hartway & Adrea Korthase, The Indian Child Welfare Act and Active Efforts: Past and Present 2 (2020).

[9] Id.

[10]  Boarding School Blues: Revisiting American Indian Educational Experiences 205 (Clifford E. Trafzer et al. eds., 2006).

[11] ICWA Notice, Bureau of Indian Affairs, https://www.bia.gov/bia/ois/dhs/icwa/icwa-notice (last visited Dec. 7, 2021).

[12] Native American Rights Fund, A Practical Guide to the Indian Child Welfare Act: Topic 2. Jurisdiction, National Indian Law Library, https://narf.org/nill/documents/icwa/faq/jurisdiction.html (last visited Dec. 7, 2021).

[13] Id.

[14] Hartway & Korthase, note 8 at 3. 

[15] Native American Rights Fund, A Practical Guide to the Indian Child Welfare Act: Topic 13. Termination of parental rights, National Indian Law Library, https://narf.org/nill/documents/icwa/faq/termination.html (last visited Dec. 7, 2021).

[16] Native American Rights Fund, A Practical Guide to the Indian Child Welfare Act: Topic 14. Expert Witnesses, National Indian Law Library, https://narf.org/nill/documents/icwa/faq/expert.html (last visited Dec. 7, 2021).

[17] Native American Rights Fund, A Practical Guide to the Indian Child Welfare Act: Topic 11. Foster care placement & removal, National Indian Law Library, https://narf.org/nill/documents/icwa/faq/foster.html (last visited Dec. 7, 2021).

[18] Hartway & Korthase, note 9 at 2.

[19] Miss. Band of Choctaw Indians v. Holyfield, 490 U.S. 30, 37–38 (1989).

[20] Id. at 38–39.

[21] Id.

[22] Id.

[23] Id. at 53.

[24] Id.

[25]  Id. at 51–52.

[26] Adoptive Couple v. Baby Girl, 570 U.S. 637, 643 (2013).

[27] Id.

[28] Id. at 644.

[29] Id. at 645.

[30] Id. at 641–42.

[31] Id.

[32] Id.

[33] Watso v. Lourey, 929 F.3d 1024, 1027 (8th Cir. 2019), cert. denied sub nom. Watso v. Harpstead, 140 S. Ct. 1265 (2020).

[34]  Andrew Hamm, Four petitions on the constitutionality of the Indian Child Welfare Act, SCOTUSblog, Sept. 24, 2021, 2:59 PM), https://www.scotusblog.com/2021/09/four-petitions-on-the-constitutionality-of-the-indian-child-welfare-act/.

[35]Petition for Writ of Certiorari at 2-3, Brackeen v. Haaland, No. 21-380 (filed Sept. 8, 2021).

[36] Kevin Dupzyk, NOT TRANSLATABLE: On the Flathead reservation, recording the Kootenai worldview in its own words, Native News, http://nativenews.jour.umt.edu/2014/?page_id=18 (last visited Dec. 7, 2021).

[37] Id.

[38] Id.

[39] Id.

Sidebar Boxes:

Box 1:  History and Culture: Boarding Schools, Northern Plains Reservation Aid,  http://www.nativepartnership.org/site/PageServer?pagename=airc_hist_boardingschools (last visited Dec. 7, 2021).

Box 2:   Frequently Asked Questions, Bureau of Indian Affairs, Final Rule: Indian Child Welfare Act (ICWA) Proceedings, U.S. Dep’t of the Interior Indian Affairs 3 (June 17, 2016), https://www.bia.gov/sites/bia.gov/files/assets/bia/ois/raca/pdf/idc1-034295.pdf.

Box 3:  Andrew Hamm, Four petitions on the constitutionality of the Indian Child Welfare Act, SCOTUSblog, Sept. 24, 2021, 2:59 PM), https://www.scotusblog.com/2021/09/four-petitions-on-the-constitutionality-of-the-indian-child-welfare-act/.

Box 4:  Brackeen v. Haaland, 994 F.3d 249, 402–03 (5th Cir. 2021).