{"id":9490,"date":"2019-11-14T16:41:22","date_gmt":"2019-11-14T21:41:22","guid":{"rendered":"https:\/\/unitedresourceconnection.org\/cannon-ball-nd-58528\/tribal-families-get-priority-in-native-american-adoptions\/"},"modified":"2019-11-14T16:41:23","modified_gmt":"2019-11-14T21:41:23","slug":"tribal-families-get-priority-in-native-american-adoptions","status":"publish","type":"post","link":"https:\/\/unitedresourceconnection.org\/cannon-ball-nd-58528\/tribal-families-get-priority-in-native-american-adoptions\/","title":{"rendered":"Tribal families get priority in Native American adoptions"},"content":{"rendered":"
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Tehassi Hill, tribal chairman of the Oneida Nation, stands outside a federal appeals court in New Orleans in March 2019 following arguments on the constitutionality of a 1978 law giving Native American families preference in the adoption of Native American children.<\/p>\n<\/div>\n

In the 40 years since Congress enacted the Indian Child Welfare Act, the law has been criticized in legal challenges that have climbed all the way to the U.S. Supreme Court. But the ICWA, as the act is known, has always prevailed.<\/p>\n

Now its constitutionality is being questioned again. Last week the U.S. Court of Appeals for the 5th Circuit agreed to rehear a lawsuit filed by a non-Native American couple in Texas claiming the ICWA discriminates on the basis of race and infringes on states\u2019 rights.<\/p>\n

The federal law, passed in 1978, mandates that states prioritize placing Native American children up for adoption with members of their family, their tribe or other Native American families \u2014 a remedy to policies that had previously empowered the government to take native children from their parents without cause and eradicate their tribal identity.<\/p>\n

The Texas couple, Chad and Jennifer Brackeen, sued the U.S. Interior Department in 2017 after their petition to adopt a Native American toddler they had fostered for more than a year was challenged in state court. Texas Child Protective Services had removed the boy, called A.L.M. by the court, from the custody of his paternal grandparents and placed him in foster care with the Brackeens.<\/p>\n

He lived with them for 16 months, according to court documents. They sought to adopt him with the support of his biological parents \u2014 members of the Navajo Nation and Cherokee Nation \u2014 and his paternal grandparents. The ICWA requires, however, that a child\u2019s tribe be notified before an adoption placement is approved.<\/p>\n

The Navajo Nation located a nonrelative Native American family in New Mexico willing to adopt the boy, though that placement ultimately fell through. The Brackeens eventually successfully petitioned to adopt A.L.M. and are trying to adopt his younger sister.<\/p>\n

Their suit was joined by state attorneys general from Texas, Louisiana and Indiana.<\/p>\n

Texas Attorney General Ken Paxton (R) said last year that the ICWA unlawfully \u201celevates a child\u2019s race over their best interest,\u201d reported the Texas Tribune<\/a>.<\/p>\n

In October 2018, a federal judge in the Northern District of Texas agreed with their challenge, ruling that much of the ICWA is unconstitutional<\/a>. Defendants in the case, including the federal government and the Morongo, Quinault, Oneida and Cherokee tribes, appealed the decision.<\/p>\n

In March of this year, a panel of three judges on the 5th Circuit heard oral arguments in the case, and in August they ruled 2 to 1 to overturn the federal judge\u2019s ruling<\/a>. In their decision, Circuit Judge James L. Dennis wrote that the ICWA aimed to classify children not by race, but by politics. The definition of \u201cIndian child\u201d under the law is broad, he wrote, and extends \u201cto children without Indian blood, such as the descendants of former slaves of tribes who became members after they were freed, or the descendants of adopted white persons.\u201d<\/p>\n

The plaintiffs in the case chose to appeal the panel\u2019s ruling, initiating a process that can kick the case back to a court of appeals and force the entire bench to hear it \u2014 rather than just three judges.<\/p>\n

Last week the 5th Circuit ruled to rehear the case \u201cen banc,\u201d<\/a> writing that oral arguments will be scheduled at a later date.<\/p>\n

Cherokee Nation Principal Chief Chuck Hoskin Jr., Morongo Band of Mission Indians Chairman Robert Martin, Oneida Nation Chairman Tehassi Hill and Quinault Indian Nation President Fawn Sharp issued a statement affirming their support of the ICWA:<\/p>\n

\u201cWe never want to go back to the days when Indian children were ripped away from their families and stripped of their heritage. We continue to believe that the Fifth Circuit decision affirming the constitutionality of ICWA was the right decision. While it is unfortunate that the attacks on this critical law continue, we are confident that the court will once again uphold the constitutionality of ICWA, as courts have repeatedly done over the past 40 years. ICWA provides a process for determining the best interests of Indian children in the adoption and foster care systems, which is why it is overwhelmingly supported across the political spectrum. We remain devoted in our efforts to defend ICWA because our number one priority remains fighting for the well-being, health and safety of children and families.\u201d<\/p>\n

The day before the court\u2019s decision, Paxton posted a video interview to his Twitter page with the Brackeens.<\/p>\n

#ICWA<\/a> law continues to be unconstitutional and has real, painful consequences for children and families. Learn more from the Brackeen family and the process they went through to give their son a forever home.<\/p>\n

The law, he wrote, \u201ccontinues to be unconstitutional and has real, painful consequences for children and families.\u201d<\/p>\n

After the ruling, Marc Rylander, director of communications in the Texas attorney general\u2019s office, wrote in a statement that \u201ca child\u2019s best interest should supersede politics and race.\u201d<\/p>\n

\u201cThe Constitution makes clear that the law must never single anyone out for disparate treatment on the basis of their race,\u201d Rylander said in the statement. \u201cHowever, ICWA clearly coerces state agencies and courts to carry out an illegal federal policy based around a child\u2019s race. This unconstitutional and dangerous law should not stand.\u201d<\/p>\n

Kathryn Fort, a Michigan State law professor and one of the nation\u2019s foremost ICWA experts, told The Washington Post she thinks there are more important battles to wage on behalf of children.<\/p>\n

\u201cGiven that a federal judge this week fined Texas $50,000 a day until they fix their broken child welfare system,\u201d Fort said, \u201cit seems beyond the pale for them to try to continue to strike down a law that is designed to help children and families in that very system heal and reunify.\u201d<\/p>\n

Fort said the court\u2019s decision is disappointing, but it\u2019s not the end. \u201cState courts continue to apply the law in the hundreds of ICWA cases filed each year to protect Indian children and families,\u201d she told The Washington Post.<\/p>\n

The ICWA was passed in 1978 in response to what was viewed as a family separation crisis for American Indian and Alaska Native communities. Studies showed that 25 to 35 percent of all native children were being removed, and of them, 85 percent were placed in homes outside their families or tribes, according to the National Indian Child Welfare Association<\/a>. This happened even when suitable family members were willing to foster or adopt.<\/p>\n

Those trends followed decades of mistreatment of Native American communities by the U.S. government, as The Post has previously reported<\/a>.<\/p>\n

In 1869, as a way to end the violence inflicted by white settlers upon Native American land in the West, President Ulysses S. Grant implemented a \u201cPeace Policy.\u201d<\/p>\n

\u201cLet us have peace\u201d had been his campaign slogan the previous year, and after his election, Native people were forcefully confined to reservations where they would become \u201ccivilized.\u201d To sidestep the abuse and corruption within the government\u2019s Indian Bureau, Grant awarded contracts to religious groups to run reservation boarding schools. Those would eventually be dominated by Catholic missionaries, who took Native children from their parents and placed them in classrooms where they were taught to dress, speak and pray like white people.<\/p>\n

Native people\u2019s autonomy was further diminished in 1871, when the Indian Appropriations Act declared Native Americans wards of the state.<\/p>\n

The ICWA has faced challenges in court before, and one such case in 2013 was reviewed by the U.S. Supreme Court. The high court ruled 5 to 4 that Dusten Brown, a member of the Cherokee nation, did not have a right to his child because he had signed away his rights, though he claims he did so under misleading circumstances.<\/p>\n

The justices instead granted custody to a white couple from South Carolina who had adopted the child while he was serving in the Army.<\/p>\n

\u00a0<\/p>\n

(Article courtesy of the Washington Post)<\/p>\n

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Tehassi Hill, tribal chairman of the Oneida Nation, stands outside a federal appeals court in New Orleans in March 2019 following arguments on the constitutionality of a 1978 law giving Native American families preference in the adoption of Native American children. In the 40 years since Congress enacted the Indian <\/p>\n

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