Tulalip Tribe: SCOTUS ruling on protection of Native American children ‘not upholding case law’

Sep 4, 2022, 9:04 AM
Indian Child Welfare Act...
(Associated Press)
(Associated Press)

The Indian Child Welfare Act (ICWA) — a law that establishes basic requirements to protect Native American children from continued forced removal from their families, tribes, and tribal culture — is slated to be reviewed by the Supreme Court this fall through a collection of cases anchored by Brackeen v. Haaland.

Brackeen v. Haaland was brought to the Supreme Court by the states of Texas, Louisiana, and Indiana, alongside individual plaintiffs, seeking to declare the (ICWA) unconstitutional. The case centers on Chad and Jennifer Brackeen, a couple from Texas who fostered a child eligible for membership in the Navajo and Cherokee tribes, according to The Associated Press.

When the boy’s parents voluntarily ended their parental rights, the Brackeens tried to adopt him. But the state denied their request after the Navajo Nation found a possible home for the boy with a Navajo family. The Brackeens went to court and were able to adopt the boy after the judge ruled in their favor.

The couple is also trying to adopt the boy’s younger half-sister.

“I firmly believe that this Supreme Court is doing their will. They’re not upholding precedent or law or case law. These laws have been on the books for over 50 years, and they just overturned McGirt v. Oklahoma. And that was another precedent that they overturned after 100 years of case law,” said Misty Napeahi, vice chair of the Tulalip Tribes, on Seattle’s Morning News. “So I feel like they’re going to do their will. And we cannot ignore that six of our justices are Catholic. The Catholic Church was one of the churches that, through government policies, built boarding schools to fulfill the government’s policies to destroy Indian families.”

Since 1978, when the Indian Child Welfare Act was passed, the federal government has given tribal governments primary jurisdiction over the removal of American Indian children in custody, foster care, adoption cases, and their placement in appropriate homes.

“The [children] were placed in outside families, in nontribal families outside of our communities,” said Napeahi. “And oftentimes, that was deliberate. It was a spring-off policy from the boarding schools, another way to try to assimilate natives and basically destroy the Native American family unit. And so that law was designed to help tribes, and tribal children and the state, really to find the biological and the families of these children that were removed and placed into state foster care.”

Indigenous children are four times more likely to be removed by state child welfare systems than non-Native children, even when their families have similar presenting problems, according to the National Indian Child Welfare Association.

The fear of the potential overturning of the ICWA stems from an ugly history of cultural genocide taking place in federally-installed Native American boarding schools from 1819 to 1969.

Federal Indian boarding schools implemented systematic cultural whitewashing, new report reveals

The U.S. Interior Department published a report investigating these boarding schools, which were described as fostering “rampant physical, sexual, and emotional abuse; disease; malnourishment; overcrowding; and lack of health care.”

The report also stated the federal government used money from Indian Trust Funds to pay schools, including those run by religious organizations, to take children away without parental consent and force them into environments designed to destroy generational bonds by eliminating language and culture.

“They didn’t want us to have strong family units, because they felt like, if we did, we would continue to fight. And I just firmly believe that the Supreme Court is going to do their will,” said Napeahi. “They’re going to overturn ITW [Indian Tuition Waiver]. They’re not even a branch of the government that has the authority to overturn what happens to tribes. The tribes are founded under Congress. So it’s because Congress is not acting in the ways that they want them to, they’re going to take it on themselves.”

Listen to Seattle’s Morning News with Dave Ross and Colleen O’Brien weekday mornings from 5 – 9 a.m. on KIRO Newsradio, 97.3 FM. Subscribe to the podcast here.

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Tulalip Tribe: SCOTUS ruling on protection of Native American children ‘not upholding case law’