Tribes watch carefully as the Supreme Court weighs ICWA, a landmark Aboriginal adoption law

November 7, 2022 at 6:16 a.m. EDT

Rosa Soto Alvarez visits her mother’s grave for All Souls’ Day at Monte Calvario Cemetery in Tucson. (Joshua Lott/The Washington Post) Comment on this story

Suspension

Pasco Yakui Indian Preserve, Arizona. Victor Cortez was only five months old when a tribal social worker brought him here from California and placed the baby in the care of a relative after his mother was imprisoned for drug smuggling. Today, 16-year-old and soft-spoken Victor is a rising star among traditional Basque Yaco dancers and still lives with that guardian, the only mother he has ever known.

Victor is also known as “ICWA Child,” a designation that includes a familiar acronym here – and it refers to a landmark Indian law whose fate was at stake in the US Supreme Court on Wednesday. The Indian Child Welfare Act governs foster care and adoptions involving Native American children, with priority being given to their placement with relatives, members of tribes, or in other Native homes.

“The culture we’re having here – I’m glad to be in it,” said Victor. “It’s a blessing.”

The law was passed unanimously in 1978 to help correct what Congress called at the time “the most tragic and devastating aspect of American Indian life today”: the widespread, and sometimes forced removal of Native children to boarding schools and families not connected to their tribes. Congress emphasized that the existence of tribes depends on their children.

Now, in a case that has arisen over the adoption of a Native boy by a white Texas couple, seven individuals and a Texas court are demanding the repeal of the law, which they say discriminates on the basis of race and unconstitutionally requires states to enforce federal law. Law. Defending the act is the Biden administration and five tribes, including the Cherokee and Navajo, who argue that the law is tied to tribal membership—a political category, not a racial one.

Bracken’s case is being watched with concern across India, with many expecting the conservative Supreme Court to strike down the law in whole or in part. Depending on the reasons, legal experts say, the ruling could have far-reaching repercussions undermining tribal sovereignty and federal laws regarding Indian gambling, fishing rights and other matters.

“If the plaintiffs win, that’s an earthquake,” said Dan Lorenz, associate professor at the University of North Dakota School of Law, attorney with the Native American Rights Trust, and Iowa Tribe member in Kansas and Nebraska. “The echoes will be felt in all areas of the law.”

The plaintiffs argue in a lawsuit that the law puts “Indian children” in an undesirable position, denying them a placement decision based on their best interests, and instead requiring appointments “based on the child’s biology. The lawsuit states that non-Indian adoptive parents end up doing so” In the last row to adopt an Indian child.”

The Pascua Yaqui Preserve, the 3.4 square miles where malls in southwest Tucson give way to saguaros, provides a glimpse of what tribes say is at risk. Here, the Supreme Court battle seems urgent and removed, a distant academic argument that could upend everyday practice that the tribe did a central mission.

Pascua Yaqui has built an entire infrastructure around the ICWA, or “ICK-wah,” which gives tribes the right to intervene in cases involving children of members or eligible to be members and not living in the reserve. About a quarter of the tribe’s 22,000 members live in the reserve, where custody proceedings are handled by a tribal court.

Over the past six years, the tribe’s attorney general has used federal funding to build a staff of three ICWA attorneys and three other staff dedicated to the cases. When the state notifies the office about a removed child who may be a member, the paralegal quickly orders a family tree, based on tribal registration, to determine which relatives can provide a home. The tribe’s social services department has four ICWA social workers who travel through Arizona, and sometimes beyond, to visit children and families involved in cases.

The lawyers said the expanded staffing allowed a tribal representative to be present at every state court hearing. Two years ago, Pascua Yaqui worked with the Pima County Court to create an ICWA Special Court, one of 17 courts nationwide. It serves 11 tribes.

Pasqua Yaki chief Peter Yokobichio said the reason for the tribe’s focus on these issues is simple. He said children are the future of a small tribe that wasn’t federally recognized until 1978 — and added that the tribe is their heritage.

“You begin to lose your identity. You begin to assimilate into the general population,” Yokobisio said of children separated from their tribes. Then one day they will wake up and say: I am before me. How do I go back to being before me? This is what I was meant to be.

When the Indian Child Welfare Act was passed, studies showed that 25 to 35 percent of Indigenous children were taken away from their parents for adoption or adoption, and over 85 percent of placements were in non-Indigenous homes.

The researchers found that social workers rarely transferred children because of abuse, a congressional report said, but instead because they equated Indians’ unequal poverty with neglect, and extended family care — common in indigenous communities — with parental abandonment.

It was still happening, said Alfred Urbina, the attorney general in Pasqua Yaqui, as he drove through the reserve’s quiet streets one recent evening, after building elegant homes he said were also aimed at stabilizing families by helping to address the acute housing shortage. Urbina said he consulted on ICWA issues with the neighboring nation of Tohono O’odham, which includes the extensive Tohono O’odham Reservation, he said, and some homes with earthen floors.

“Just because there is a dirt floor does not mean that this is a neglected situation,” Urbina said. “But a state court judge would refuse to put them there despite a loving grandfather.”

Over time, the philosophy behind ICWA has become known as the “gold standard” in child care practices at a national level.

“Policies within the United States, from federal to state governments, have moved in the past two decades toward favoring family and kinship positions over others in all circumstances, not just with indigenous children,” said Barbara Atwood, a law student at the University of Arizona. Professor and expert in law.

The Pascua Yaki tribe says their focus has produced results, speeding up placements with kin and keeping families together. The tribe usually intervenes in cases within three days, down from 10 in 2006. In 2009, 18 percent of ICWA cases with children were closed and parents were reunited – the top goal. In 2021, 49 percent did. Urbina said that between 2016 and 2020, children were placed with tribal members in 91 percent of cases.

But the tribe insists that it is not rigid: if a non-tribal placement is best for the child, the lawyers said, they go with it but strive to develop cultural ties. They said one of the open cases involved a 16-year-old yaki girl in Oregon who was adopted by a non-indigenous family. Recently, Oregon took her to the reserve, where she met a man she knew was her uncle: Yokobichio, the board chairperson.

Urbina said that with the law under threat, more Yakis emerged to defend it. At the ICWA convention hosted by the tribe in the spring, two Army veterans tearfully revealed to the crowd that they were a father and an adopted son.

“This community, this is what saved me,” said the son, Augustin Lopez, 47. Lopez said he was taken from his mother, a drug addict, when he was a teenager in Tucson and was placed in custody with Alex Alvarez, a behavioral health counselor.

Rosa Soto Alvarez, 46, and her three siblings were removed as young children from their mother in Tucson. At first, she was separated from her siblings and placed in a non-native house. After a social worker realizes that the children are Yaqui, the Yaqui couple become permanent guardians of all of them. They later moved to the reservation, and Soto Alvarez, a former member of the tribal council, won the replacement.

“I would have grown up without my siblings. Without knowing I was yaki,” she said, “apart from people who know my family.”

Many Yahyas are devout practitioners of a form of Catholicism tinged with touches from pre-Columbian practices. On November 2, All Souls’ Day, the protected cemetery is filled with families sitting near the graves of ancestors who believed their souls were leaving after visiting during October.

Soto Alvarez prepared the favorite foods of her late loved ones as offerings – enchiladas for her adoptive mother, chocolate cake for her brother – and took them to the cemetery, where she plans to bury them between them. One row was around the graves of her mother and grandmother. Everywhere she was greeting people.

“I like to say I’m connected to just about everyone, through blood or celebration,” Soto Alvarez said.

Memos in support of the Indian Child Welfare Act have been submitted by nearly 500 tribes, tribal legal scholars, the American Medical Association, and child care and adoption organizations, among others. Twenty state attorneys general, including Arizona, warn that repealing the law “could force states and tribes to start from scratch.”

Some states, including New Mexico this year, have adopted state ICWA laws that experts say would protect existing practices if the Supreme Court overturned the federal law on the grounds that it provided for “leaders.”

Arizona did not. But in August, its Department of Child Safety signed an agreement with Pascua Yaqui to continue prioritizing keeping Yaqui children with family or other tribal members, “regardless of federal protection,” DCS Administrator Mike Faust said at the signing. The Navajo Nation has a similar agreement with the state of Arizona.

This provides some relief, Urbina said. He feels confident that ICWA’s strong Pasqua Yacoys program can pivot if federal law is repealed. The same may not apply to tribes that lack such resources for their childcare systems.

But there are concerns. He said the tribe could seek to refer all state cases to the tribal court, where it would have exclusive jurisdiction – but triple the number of cases. If ICWA dies, the tribe will not have the right to be notified when Yaqui children are removed from states other than Arizona.

On Tuesday, Arizona will also elect a new governor who could handle Native American relations differently. But Yokobisio said referees come and go, and so do court decisions.

“Whatever strength we have had over the 500 years of colonization, this has continued our survival,” he said. “So it won’t be a Supreme Court case that overturns it.”

Victor, the young dancer – who is also a high school student and baseball player – practices his craft three times a week. He said he was addicted when he first saw the ceremonial dance as a young child, and his skills are now in great demand at tribal occasions.

He ended up here because his mother was a Yaqui, and ICWA asked California to notify the tribe when he was removed from her care. Tony Sanchez, a longtime Pascua Yaqui ICWA social worker, traveled with the baby to Arizona — not the first time he’s brought back a Yaqui baby. He said, “They used to call me a stork.

In Arizona, tribal social workers turned to Vicki Homo, 67, a distant aunt and dependable foster mother.

Homo initially remembered that state social workers were concerned that she already had many adopted children in her home. But ICWA’s attorney for the tribe at the time, she said, made a compelling argument.

“There is no such thing as too many children in an Indian home,” said Homo.

revision

An earlier version of this article incorrectly stated that three states are plaintiffs in Haaland v. Bracken. While Indiana and Louisiana were parties to lower court cases, Texas is the only state to challenge the Indian Child Welfare Act in the US Supreme Court. The article has been corrected.

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