Divided Supreme Court weighs Indian Child Welfare Act

Nov. 10—TRAVERSE CITY — As she watched the live feed on her phone from outside the Supreme Court building in Washington D.C, Linda Cobe said all she could feel was worry.

In Brackeen v. Haaland, justices heard three hours of arguments Wednesday on the most significant challenge to the Indian Child Welfare Act — a law that gives preference to Native American families in foster care and adoption proceedings of Native children.

"I'm nervous over the current state of Native rights," Cobe said. "It feels like we are always having to fight for our rights."

Cobe is an elder of the Lac Vieux Desert Band of Lake Superior Chippewa Indians in the Upper Peninsula.

As a child she attended Holy Childhood in Harbor Springs, before she became a victim of the "'60's scoops" — the period after the Bureau of Indian Affairs' Indian Adoption Project when the government paid the Child Welfare League of America to place Native children up for adoption, "scooped away" from their birth families and communities.

Cobe, who was 6 at the time, and her sister were adopted out of Holy Childhood to white families, several towns away. Her new adoptive family forbade her biological family from seeing her or her sister any time they reached out, Cobe said.

She said she felt helpless, leaving her sister behind in an abusive situation, when she left at 18.

"I was completely cut off from my cultural identity," she said. "It's taken a lifetime to reconnect with what was taken from me."

But after Indian Child Welfare Act passed, and her sister was placed with a Native family, they were able to reconnect, she said.

ICWA was unanimously passed by Congress in 1978 to help rectify what Congress then called "the most tragic and destructive aspect of American Indian life today" — excessive numbers of Native children removed from their homes by public and private agencies and placed in institutions or with non-Native families.

Tribes' existence, Congress asserted, depended on their children.

The National Indian Child Welfare Association (NICWA) reported that, prior to the ICWA, as many as 35 percent of Indigenous children were taken from their families, with 85 percent of these children placed outside their families and communities — even when safe relatives were willing and able to take them in.

It has long been championed by tribal leaders as a means of preserving their families, traditions and cultures. But it is now before the U.S. Supreme Court as plaintiffs argue ICWA violates the 14th Amendment because it gives a preference to one race over others.

Proceedings began Wednesday, as justices heard challenges to the law by a group of non-Native American adoptive families and the Republican-governed state of Texas after lower courts declared parts of it unconstitutional.

Democratic President Joe Biden's administration and several Native American tribes are defending the law.

While the justices do not appear willing to strike down ICWA, there was division over whether the U.S. Congress overstepped its authority in passing it.

Some members of the court's conservative wing indicated they were inclined to view the preference as a racial one.

"You would agree, I think, but tell me if you disagree, that Congress couldn't give a preference for white families for white children, for Black families for Black children," Associate Justice Brett Kavanaugh questioned the attorney representing the Department of the Interior. "And this is different because?"

The attorney, Edwin Kneedler, responded that the difference was because Native Americans have a different political relationship with the United States government as Native American tribes are sovereign entities.

"Over the more than 40 years since its enactment, ICWA has furnished vital protections against those practices and has become integrated in state child welfare practices," he said. "There is no basis for uprooting those practices or for overturning Congress's considered judgment and enacting ICWA."

Justices were split over whether some of the preferences under the law racially discriminate against non-Native Americans. The court's three liberal justices appeared supportive of the law, as did conservative Justice Neil M. Gorsuch, who has emerged as the court's leading proponent of tribal rights. But it was not clear that those four justices would capture the fifth vote they would need to prevail.

Liberal justices pointed to the reasons Congress had for passing the law, indicating that was in line with Congress' power to write laws on Native American affairs.

There's a long history to support the idea that the definition of "Indian" in U.S. law is "political in nature, not racial," said Justice Elena Kagan. Congress found that the law was required for the "continued thriving of Indian communities," she added.

Gorsuch questioned whether the challengers even had legal standing to bring the case, saying their arguments were suffused with "policy arguments" that "may be better addressed across the street," in reference to the Capitol building that sits opposite the Supreme Court in Washington.

Five sovereign nations intervened in the case, and a total of 497 Native tribes, including 11 of the 12 federally recognized tribes in Michigan, 62 American Indian organizations, 87 members of Congress, 23 states and Washington, D.C., have filed briefs in opposition to the Brackeen plaintiffs.

Elder of the Grand Traverse Band of Ottawa and Chippewa Indians, Tom Binesiwegiizhig (Peters) said the attacks on tribal nations is not new, but he worries "this consideration by the Supreme Court could be used to hurt our communities in many other areas other than the Child Welfare Act."

Binesiwegiishig formerly served on the Michigan ICWA original board when it was first enacted. Native nations need "to at least be given the opportunity to raise our children," he said.

Chairman of the Grand Traverse Band of Ottawa and Chippewa Indians David Arroyo also voiced support for ICWA.

"ICWA was the first time that the government recognized centuries of mistreatment of our Native children," Arroyo said. "As a tribe, we are saying it must be protected."

Nearly two dozen state attorneys general across the political spectrum, including re-elected Dana Nessel of Michigan, filed a brief in support of the law.

"We disagree on many things," the brief read. "But we all agree that ICWA is a critical — and constitutionally valid — framework for managing state-tribal relations, protecting the rights of Indian children, and preventing the unwarranted displacement of Indian children from their families and communities."

A ruling in favor of the families and Texas could undercut the 1978 law and, the tribes fear, have broader effects on their ability to govern themselves.

An official ruling in Haaland v. Brackeen will not be determined until June 2023.

Until then, Cobe said she will be anxious about the dark cloud that hangs over the protection of basic rights for Native Americans.

As a young adult when ICWA was first passed, she remembers feeling hope for the first time.

"I prayed the next generations would be protected and not have to endure what I went through," she said.

The Associated Press contributed to this report.

Report for America corps member and Indigenous Affairs' reporter Sierra Clark's work is made possible by a partnership between the Record-Eagle and Report for America, a journalism service project founded by the nonprofit Ground Truth Project. Generous community support helps fund a local share of the Record-Eagle/RFA partnership.

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