I’ve been thinking about the overview video I watched yesterday from Turtle Talk. I took a few notes as I listened and hope I got everything straight as I wrote it down. My notes:
In 1978, the US Federal Government enacted the Indian Child Welfare Act (ICWA.) At that time 1/3 of Indian children were in Out-of-Home (OHP) placements and due process for removing and keeping removed children in OHP was virtually non-existent. ICWA puts due process into place at least in theory.
Due process in the case of child welfare is to make sure the local/circuit courts send notices to all “Interested Parties,” which makes sure they know about upcoming court proceedings and have an opportunity to take actions in the court realm. One key area in notification is in the very beginning of the case, as that’s when “interested parties” are established and the list that the clerks use to send out all further notices. Because Indian Tribes have their own governments, many times the US local courts simply overlook them and don’t comply for one reason or another.
To compound the matter, many states are reluctant to enforce local court non-compliance. If the Tribe isn’t “noticed” at the local level, it is extremely difficult to move on to the appellate court. The Indian interested parties have no right to counsel. Currently there is no notification system in place for the appellate court. There are severe shortages of attorneys to get involved or to move the cases along when they need to be. Just as unfortunate, civil rights organizations who take on civil rights cases shy away from the ICWA cases as they aren’t able to get attorney fees. (Which I think they said may have changed or may change?)
Challenges to ICWA
The 2013 Baby Girl case made it to the US Supreme Court, which upheld ICWA – but barely.
The reality is that Tribes almost never appeal ICWA cases; it’s the child’s family that does.
There currently exists a coalition of “anti-ICWA” forces that are bringing a large number of Federal lawsuits that are trying to get ICWA considered “Unconstitutional”.
In 2017 a big case, Brackeen v. Haaland was heard in TX. ICWA’s Constitutionality has been challenged in four lower courts but is being appealed again and is now headed towards the U.S. Supreme Court. Please click on the case link to learn more.
PLEASE read this excellent essay by Nick Estes from the Opinion section from The Guardian’s August 23, 2021 issue with the headline:
Why is the US right suddenly interested in Native American adoption law?
Per The Guardian’s profile for Mr. Estes, he is a citizen of the Lower Brule Sioux Tribe. He is a journalist, historian, and host of The Red Nation Podcast.
Minnesota Public Radio (MPR) has an article about ICWA generally but more about the upcoming Supreme Court case.