The Unknown Future of the ICWA

I want to start of this post by thanking everyone who took the time to read my last post. It is actually my most viewed blog post with over 2,000 views, which is amazing. It is really cool to know that people are actually engaging with the conversation, and even my opinion. Love that. But today I wanted to write about an issue that was brought up in my Native American Law class yesterday. This topic/issue is one that I also have a close connection with, mainly because my grandma Lou Crowe helped with the creation of it.

Today we will be discussing the Indian Child Welfare Act and its unknown future, the current threat it is posing to Indigenous youth, and even the debate surrounding Natives as "Political" or a "Race".

Just to give you all a brief history of ICWA, it was created in 1978 to combat the epidemic of Native American and Alaskan Native children being adopted and separated from their family and culture. During this time, there were actual people trying to BUY Native children, for the sake of assimilation and even to convert them to Christianity. This was another form of cultural genocide, and people like my grandmother were tired of seeing this. According to statistics, 25%–35% of all Native children were being removed; of these, 85% were placed outside of their families and communities—even when fit and willing relatives were available.

The Indian Child Welfare Act established federal requirements that apply to state child custody proceedings involving a Native child who is a member of or eligible for membership in a federally recognized tribe. If a Native child is placed in foster care, ICWA would try to place the child with immediate family, if no one in the immediate family can take the child, they would be placed in a foster home or other family within the tribe. If no family from the tribe can take the child, ICWA would try to place the child with a family from another tribe. The idea behind ICWA is to keep the Native child involved in some type of culture. The intent of Congress under ICWA was to “protect the best interests of Indian children and to promote the stability and security of Indian tribes and families” (25 U.S.C. § 1902).

ICWA has been around since the late 70's, and we can see today how congress has forgot about its promise to "promote the stability and security" of Native children. Especially after hearing about the issue in class yesterday. It was very scary to hear and I even called my mom to talk to her about it, so let me fill y'all in.

As of October 4th, 2018, Judge Reed O'Conner from the Northern District of Texas Federal Court issued a decision in the Bracken (Texas) v. Zinke lawsuit. This lawsuit challenged the constitutionality of the ICWA and the 2016 ICWA regulations. In his decision, the court granted all but one of the plaintiff's claims finding the ICWA statute and 2016 regulations unconstitutional.

This decision is very significant because it meant that the court had to ignore DECADES of federal court precedent, which affirmed the inherent right to tribal sovereignty, countless treaties and federal laws, and even the government-to-government relationship between Tribes and the United States that has been consecrated in the U.S. Constitution.

After calling my mom, she reaffirmed that this has always been the way Native people have been disregarded by the federal government. She is right. This is the type of bullshit Native people have to face everyday in "America". The United States has broken every treaty and agreement set with Native tribes.... And to be frank, I think we're all tired of the United States' "broken promithes promithes"...... Okay, I'm sorry lol IT HAD TO BE DONE!

Now back to the topic at hand, I am going to add an passage from the National Indian Child Welfare Association, explaining how the decision was made, and I will try to explain it to you all to the best of my ability.

"The decision relied heavily on subjecting ICWA to a strict scrutiny standard of judicial review regarding its constitutionality rather than a rational basis test typically used to establish federal Indian law precedent. Rational basis is used when a law is considered to have a rational basis for a legitimate government interest and there is no suspect classification at issue. A suspect classification involves a presumptively unconstitutional distinction made between individuals based upon race, national origin, religious affiliation, or alienage (citizens vs. non-citizens). The court’s decision to use strict scrutiny signaled their belief that there was no rational basis for concluding there was a legitimate governmental interest in providing requirements like placement preferences under ICWA, so the law must be race-based, and requires states to carry out unconstitutional policies that discriminate against different individuals (e.g., foster parents who are Indian and those who are not). The adoption of the use of a strict scrutiny standard in this case as it progresses could also spur constitutional challenges to many other federal Indian laws."

So in layman's terms, the decision was made on the basis of constitutionality, rather than determining whether a law is rationally related to a legitimate government interest, which the ICWA is, according to the original intent of congress. Now, because of the Trump Administration and a conservative Supreme Court, the future of the ICWA and tribal sovereignty is unknown, and could pose a real threat to other federal Indian laws.

The push to shift the way the United States views Native people as a race, rather than Nations, is apart of the longstanding erasure of tribal sovereignty. However, this is the same sovereignty that was promised to us in treaties, by same government that now does not want to acknowledge us.

There is a strong possibility that this case will go to the Supreme Court, and as previously stated, this could be an issue. With a Supreme Court who is majority conservative, the chances of them agreeing that Native American should be a race is greater than viewing us as Nations. So, if this is the ruling they make in the Bracken (Texas) v. Zinke case, that the ICWA is race-based, it would in fact make it unconstitutional. If this case sets any precedent, it could view other federal Indian laws as "race-based" and could even be deemed as unconstitutional as well.

The federal government could then argue, that sovereignty should not be granted to one race and not another...... Then, they can take away our sovereignty under the basis of race.

You may be thinking, "But Lou, how is this not illegal? To completely disregard treaties and decades worth of precedent?" Well folx, this is where I have to be the bearer of bad news... because the United States government does not and never has given a FUCK about us.

Think back to Andrew Jackson. The president who MY people saved during war, and later, the same president who wanted us removed from our homelands...

The Supreme Court ruled in OUR FAVOR! In Worcester v. Georgia, the ruling was that the Cherokee Nation is a separate political entity that could not be regulated by the state of Georgia. However, Andrew Jackson declined to enforce the Supreme Court’s decision, thus allowing states to enact further legislation that caused damage to my tribe. Including the removal of my people from our homelands, on the Trail of Tears...

Ultimately, it never mattered to them, and those people in power are going to make WHATEVER decision that want in the long run.

So that means we have to be ready to fight back. We have to be aware, but more specifically, we have to stay strong.

The future has always been unknown for Indigenous people, but look at us now. We are still here. Despite the constant disregard from the federal government, despite the unjust treatment from the United States, and despite the violence enacted towards our people, WE HAVE REMAINED! With the strength of our ancestors running through our blood, we cannot be scared during this time of the unknown.

For my grandmother, I will continue to fight for the Indian Child Welfare Act, because our Indigenous identity is so important and powerful.

For my Tribe, I will continue to fight for our rights as Cherokee people, but more specifically, I will fight for the respect that WE DESERVE!

For my ancestors, I will continue to fight to keep your legacy alive. The sacrifices you made will not be for nothing.

Will you join me in the fight?

If you would like to become involved or want to learn more about the case, NICWA has advocacy and communication materials available. Please contact David Simmons, NICWA government affairs and advocacy director, at desimmons@nicwa.org or call 503-222-4044, ext. 119.