by Jeniffer Solis, Nevada Current
Several Nevada lawmakers, tribes, and state leaders are urging the U.S. Supreme Court in an amicus brief to reject a challenge to the federal Indian Child Welfare Act, saying that disturbing the law would damage Native American families and could ripple through other important aspects of Native American law.
The Indian Child Welfare Act of 1978, or ICWA, imposes federal standards for state child custody cases involving Native American children. The 44-year-old law prioritizes placement of Native children in the foster system with extended family or Native communities whenever possible.
The case, Haaland v. Brackeen, was brought in 2017 by a white Texas couple, who sued in a federal district court in Texas after the Navajo Nation intervened under the ICWA to object to their attempt to adopt a Navajo child. The district court ruled the law unconstitutional after Texas and other opponents claimed the law is based on race, but was later reversed twice by the U.S. Court of Appeals for the 5th Circuit.
Tribal Nations, including the Walker River Paiute Tribe in Nevada, have argued the law is not based on race but on the rights of tribes as sovereign nations and political entities.
The Supreme Court will hear arguments in November weighing whether ICWA discriminates on the basis of race and whether Congress overstepped its authority when it enacted the law.
Earlier this month Nevada Attorney General Aaron Ford and Sens. Catherine Cortez Masto and Jacky Rosen joined 16 tribal nations in Nevada in submitting briefs supporting the U.S. Department of the Interior and five tribes backing the law.
“I’ve been a strong supporter of the Indian Child Welfare Act, which was enacted to protect the best interests of Native American children and keep them from being removed from their families and communities. It includes necessary safeguards against systemic abuses that target Native Americans, and it must be upheld,” said Cortez Masto.
“For years, the Indian Child Welfare Act has helped protect and support Native children, and ensure the continuation of Tribal communities’ rich histories and cultural traditions. I joined colleagues from both sides of the aisle in expressing our support for this important law and urging the Supreme Court to uphold it,” said Rosen.
In their brief, lawmakers in Congress argued that ICWA is supported by centuries of precedent that gives Congress authority to legislate Native American affairs in order to fulfill its federal obligations to Native American tribes and their citizens.
Nevada officials and representatives are part of a bipartisan coalition of 497 Tribal Nations, 62 Native organizations, 23 states and the District of Columbia, 87 members of Congress, and 27 child welfare and adoption organizations calling on the Supreme Court to rule in favor of upholding ICWA.
Tribes in Nevada say challenges to ICWA will have far-reaching consequences that will be felt for generations. Native American rights groups, including National Indian Child Welfare Association, warn that if ICWA is dismantled it could set legal precedent leading to far-reaching consequences for other issues like tribal economic development and land rights.
Congress enacted ICWA in response to the wholesale removal of Native children from their families by state and private child welfare agencies at rates far higher than those of non-Indian families, often without due process.
States and the federal government continued to forcibly remove Native children from their families by enlisting them in boarding schools. Nevada has its own history of separating Native children from their homes and families in the Stewart Indian School, a boarding school many Native children were forced to attend. The removals had negative impacts on the children, who were cut off from their families and culture.
Nationwide, Native children are still on average nearly three times as likely to be in state foster care systems. The National Indian Child Welfare Association found that in 10 states Native children are more than three times as likely to be removed to foster care, the highest being Minnesota, where children were placed in foster care 16 times more than non-native children.
Nine states have incorporated ICWA’s framework into their own statutes and policies governing child-and-family services, including New Mexico most recently.
The case has drawn the attention of powerful interest groups including the Goldwater Institute, a conservative think tank that backed the 2018 lawsuit in Texas. The Goldwater Institute has been involved in 13 cases challenging ICWA in the last six years.
Counsel for the Texas family who filed the lawsuit against ICWA also includes the massive international law firm Gibson, Dunn & Crutcher, according to a court petition. That firm represented the Dakota Access pipeline, a multibillion-dollar project estimated to carry half-a-million barrels of oil per day.
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