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.”
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.
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
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.
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