The Native adoption case that could dismantle the Indian Child Welfare Act, explained – UPDATE

This cultural difference — that a family’s fitness is determined by its wealth, and that those concerns should outweigh a child’s connection to their family and heritage — is essentially why the Indian Child Welfare Act was created in 1978. The law recognizes the history of federal policy aimed at breaking up Native families and mandates that, whenever possible, Native families should remain together.

Sarah Kastelic, the executive director of the National Indian Child Welfare Association, said that ICWA acknowledges important familial and tribal bonds that have long been disregarded, and that Native ways — such as extended families living under the same roof — have often been used to show unfitness in child welfare proceedings. “No matter the picket fences and swimming pools and things, most of the time, kids want to be with their families,” she said.

Hirsch worked as an attorney for these types of cases for four decades, and in that time, “I’ve seen a lot that makes my stomach turn, it’s just sickening,” he said. In the days before ICWA, a law that Hirsch helped to write and pass, judges “had no trouble just taking tribal kids away from their families and putting them in foster care, because they didn’t like Indians and they didn’t like their way of life. Ostensibly, they were removed for neglect, but really it was all about poverty,” Hirsch said. “If you’re poor and you’re Indian, you lose your kid.”

READ: The Native adoption case that could dismantle the Indian Child Welfare Act, explained – Vox


ICWA appeal goes before Fifth Circuit Court of Appeals for a second time

The closely-watched arguments for and against the constitutionality of the Indian Child Welfare Act are now in the hands of all 16 judges sitting on the Fifth Circuit Court of Appeals. The judges heard oral arguments Wednesday, January 22, after the court granted plaintiffs’ request for an en banc hearing. That action vacated the court’s previous decision in August by a three-judge panel affirming ICWA’s constitutional standing. The Fifth Circuit is determining whether or not to uphold a 2018 decision by a Texas district court judge that ICWA is based on race and therefore unconstitutional.

Navajo Nation Assistant Attorney General Paul Spruhan argued in defense of ICWA. He says the law fulfills treaty obligations, a purely political objective. He says that holds up even when examining racial terms “Indian,” “Indian child,” and “Indian tribe” in the Act.

“They are directly connected to membership in a sovereign tribal nation with a government to government relationship with the United States,” Spruhan said.

On the other side of the issue are the non-Native families who want to adopt or foster Indigenous children but have come up against ICWA regulations. Their attorney, Matthew McGill, ays ICWA preferences put his clients at the bottom of the list. He notes that under the law, consideration for a Native child’s placement goes first to the child’s family, then to the child’s tribe, then to other tribal affiliations.

“That is, in my view, just a naked and transparent racial classification and racial objective,” McGill said. “Simply to say we’re going to put any Indian child with any Indian family is the very definition of a racial categorization.”

Among those filing briefs supporting ICWA were 486 federally recognized tribes and 26 states. Among them is Mississippi, one of the states in the 5th Circuit. Texas and Louisiana are the other two states in the 5th Circuit. They, along with Indiana, are among the plaintiffs suing to overturn ICWA.

The appeals court opinion, when it comes, will apply only within the Fifth Circuit. Attorneys on both sides say the case could go to the the U.S. Supreme Court.


The Necessity of the Indian Child Welfare Act HERE

Congress today has substantial and sweeping powers over Native nations and Native people, including the authority to abolish tribes and tribal reservations, and to expand or restrict tribal authority. These powers come from a series of Supreme Court decisions in the late 1800s and early 1900s that were based on racist views about American Indians—that Congress needed virtually unlimited authority over American Indian affairs because Natives were not equipped to govern themselves. The Court reasoned that Natives’ “weakness and helplessness” gave the federal government “broad domain” over them; later cases pointed to Natives’ “condition of tutelage or dependency.” Those decisions gave Congress more power when it comes to Native affairs than it has when it comes to taxing or spending or regulating interstate commerce.

But over time, these cases have come to produce different results. These same decisions have empowered Congress, in recent years, to protect Native families from various new and old forms of discrimination, imperialism, and white supremacy. The U.S. Court of Appeals for the Fifth Circuit is poised to decide whether that will remain so. Oral Argument

More articles:

Morongo tribe heading to 5th Circuit Court of Appeals to defend Indian Child Welfare Act  

Cherokee Nation to be present at rehearing of Brackeen case

Turtle Talk Blog

by Matthew L.M. Fletcher

Whatever one believes about Native Americans as a racial archetype, however, is not relevant to an adequate understanding of Indian status as a legal phenomenon. Judge O’Connor and others fail to grasp that concept. 

By Austin Vance, starting on page 12, here.


Shut Down Canada Until it Solves its War, Oil, and Genocide Problem

Indigenous people in Canada are giving the world a demonstration of the power of nonviolent action. The justness of their cause — defending the land from those who would destroy it for short term profit and the elimination of a habitable climate on earth — combined with their courage and the absence on their part of cruelty or hatred, has the potential to create a much larger movement, which is of course the key to success.

Solidarity of the longest victims of western imperialism with the newest ones is a source of great potential for justice in the world.

But I mentioned the war-oil-genocide problem. What does any of this have to do with genocide? Well, genocide is an act “committed with intent to destroy, in whole or in part, a national, ethnical, racial, or religious group.” Such an act can involve murder or kidnapping or both or neither. Such an act can “physically” harm no one. It can be any one, or more than one, of these five things:

(a) Killing members of the group;
(b) Causing serious bodily or mental harm to members of the group;
(c) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part;
(d) Imposing measures intended to prevent births within the group;
(e) Forcibly transferring children of the group to another group.

Numerous top Canadian officials over the years have stated clearly that the intention of Canada’s child-removal program was to eliminated Indigenous cultures, to utterly remove “the Indian problem.” Proving the crime of genocide does not require the statement of intent, but in this case, as in Nazi Germany, as in today’s Palestine, and as in most if not all cases, there is no shortage of expressions of genocidal intent. Still, what matters legally is genocidal results, and that is what one can expect from stealing people’s land to frack it, to poison it, to render it uninhabitable.


This is a really serious case. As an adoptee, I am praying that the federal law THE INDIAN CHILD WELFARE ACT of 1978 will stand.  Trace


  1. The US government seems really backwards in recognizing that the issue is a matter of indigeniety rather than race. Although they do some pretty awful things to Maori here in New Zealand, they are officially acknowledged as First Nations peoples here in New Zealand, and Te Reo Maori is an official NZ language (along with English and NZ sign language).

    Liked by 1 person

  2. yes, very sad indeed
    so sad that some people always have to abuse something, no matter what it is
    of course it’s natural, logical and most sensible that a child gets adopted by people who are closest to the child, I can’t see what justification there is to call that racist
    it’s common sense to leave the child in its natural environment

    Liked by 1 person

            • I am an adoptee. So much happened I wrote a memoir. And in the process of research I found out that two governments, the US and Canada removed Native kids as a project. They did this for a reason – to take land away from us. The whole thing is called genocide now.
              So I did suffer as a result. But I am pretty tough. A survivor.

              Liked by 1 person

            • Well they didn’t just do it to take the land away, they also wanted to erase the culture and the heritage.
              However I don’t think to begin with it was both sides against each other… but you know how it goes… you have sensible people talking to each other and then you have one or two on either side doing something in the background they shouldn’t have done, so eventually the situation gets totally out of hand, which then ends up in horrible consequences like that, like those so called boarding schools where it also pretty much was the idea to convert the children to Christianity. That way they lost touch with their families, their tribes and their heritage and conditions were pretty ruthless, to say the least.
              But then again… many years ago childhood abuse was pretty common, more or less everywhere. It is unbelievable what people do to their kids in their own homes, not even thinking there could be something wrong with this!
              Were you adopted by white folks who were not good to you?

              Liked by 1 person

  3. I think what has been made more clear by the rise of technology today is the way we tend to see Other cultures when we live life as the dominant one: we see all other humans as avatars…not real people like ourselves. There is something wrong with us if we don’t wake up. And if we refuse to acknowledge that some issues therefore have real teeth, then we deserve to get bit!

    Liked by 1 person

    • Good words, KC. Yes, right now there are little Native kids not with their family or tribe or kin, by design. ICWA is the best way to stop this, but as you can see, it’s not working but unravelling – again.

      Liked by 1 person

  4. That’s just criminal. Why does the world continue to allow these types of atrocities to happen? I wish I could clone myself into 100 different lawyers! I’d still be busy! Nice article. How does one like me support the children?

    Liked by 1 person

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