“Kill the Indian, save the man…. Transfer the savage-born infant to the surroundings of civilization, and he will grow to possess a civilized language and habit.”
– Captain Richard Pratt, 1879
Since the first treaties were signed between the United States government and the various Native American tribes, Native populations have had to fight endlessly to see these agreements fulfilled. Yet as can be seen by the "Civilization Fund Act of 1819" [1], "Indian Removal Act of 1830" [2], the several "Indian Appropriations Acts" [3-6], and other laws enacted prior to the "Indian Reorganization Act of 1934" [7], the interests of non-Indian settlers were generally prioritized above and beyond the Native residents. Even law enforcement on Tribal lands has been under contention since the passage of the "Major Crimes Act of 1886" [8]. Unique to the legal process in Tribal lands is the piece of legislation approved in 1953 [9] whereby Federal jurisdiction is ceded to State courts for both civil and criminal cases.
Each of these elements plays into the larger story that is Haaland v. Brackeen [10]. As described by the case, the petitioners challenged the Indian Child Welfare Act (ICWA) as unconstitutional because 1) racial classifications are set for non-Indian families wishing to foster or adopt Indian children, 2) the ICWA violates 25 U.S.C. § 1915(c) [11] upon the "non-deligation" doctrine, and 3) the ICWA violates 25 U.S.C. §§ 1912(e) and 1912(f) [11], alongside the 10th Amendment of the United States Constitution under the rationale that the ICWA "unconstitutionally commandeer[s] the States" [10, p. 1616-1617]. Per the lower court's opinion, 1) and 2) above were found not to "exceed" Congress' legislative power. Ultimately, it is determined that the State of Texas lacks standing to challenge the placement preferences set forth by the ICWA [10, pp. 1640 - 1641]. This reversal of the lower court's determination matches the claim the defendants were making in the first case [12] in the overall chain of appeals, and begs the question of why the initial case held that Texas did hold jurisdiction to file suit.
While Texas does have two recognized "Indian Entities" which receive services from the US Bureau of Indian Affairs (BIA) [13], the suit does not target specific adoption cases from that state. Rather, the ruling states that "Texas, Louisiana, and Indiana bring this suit in their capacities as sovereign states...They claim that the ICWA and the Final Rule harm state agencies charged with protecting child welfare by usurping their lawful authority of the regulation of child custody proceedings and management of child welfare services...Additionally, the ICWA and the Final Rule jeopardize millions of dollars in federal funding...The State Plaintiffs have at least one Indian tribe living within their borders and have regular dealings with Indian child adoptions and the ICWA" [12, p. 8]. The State is furthermore alleging that the ICWA “injures Texas by requiring it to break its promise to its citizens that it will be colorblind in child-custody proceedings" [10, p.1641]. Ultimately, the courts are attempting to determine the minimum bounds under which Tribal laws (and Federal laws which support them) can be litigated.
But the question remains within this confluence of jurisdiction: Are Tribes (like states) entitled to ensure the "general welfare" of their peoples--and therefore immune from suits that would infringe upon their rights to execute their Constitutional duties? And if so, do States have a right to sue against this immunity given how their rights have frequently superseded those of Native populations for much of the nation's history (despite the several treaties established between the US and Tribal peoples)?
Citations:
[1] Public Law 15-85.
[2] Public Law 21-148.
[3] Public Law 31-14 {Indian Appropriations Act of 1851}.
[4 Public Law 41-120 {Indian Appropriations Act of 1871}.
[5] Public Law 48-341 {Indian Appropriations Act of 1885}.
[6] Public Law 50-412 {Indian Appropriations Act of 1889}.
[7] Public Law 73-383 [25 U.S.C. ch. 14, subch. V § 461 et seq].
[8] 18 U.S.C. § 1153
[9] Public Law 83-280 [18 U.S.C. § 1162, 28 U.S.C. § 1360, 25 U.S.C. §§ 1321–1326].
[10] 216 L.Ed.2d 254 (2023) (143 S.Ct. 1609).
[11] Public Law 95-608, Title I, § 105, 92 Stat. 3073.
[12] 2018 WL 10561971 (2018).
[13] 88 FR 2112 (2023).
This is a fantastic post. You marry concepts from numerous cases, laws, and Constitutional Amendments in a way that flows very nicely and is easy to understand. You definitely have skill in legal summary.
ReplyDeleteI am also grateful for the topic at hand. Environmental law and service to underrepresented communities like the American Indian communities are my two biggest motivators for learning legalese, so your an Harley's post this week were a double-feature for me.
I am quite naive to tribal law, and certainly do not know enough to weigh in with substantiated claims. Everything I say is opinion, and somewhat biased since I am Choctaw, but there needs to be a recognition of the very delicate balance tribes have between relying on the U.S. government for assistance in their survival, while needing the U.S. government to stay out of their sovereign self-governing rights. It is a difficult path for the U.S. to navigate in allowing Indian tribes to self-govern, while using U.S. tax-paid resources. Logically, this implies that tribes are subjected to U.S. federal laws, and need to confer with states to create their own laws if not abide by them completely.
The recent decision made by SCOTUS to, essentially, not preserve water rights for tribal nations (found here: https://www.nrdc.org/stories/what-you-need-know-about-sackett-v-epa?gclid=CjwKCAjwu4WoBhBkEiwAojNdXj5iqNBEfiD6pyEeRO0dU-cLvZ94Oa5IFgly-x7jki4fxTFiwwkDFhoCa1EQAvD_BwE ) is indicative of impartiality overruling morality, and can be a precursor to decisions to come. That is why these fights are going to get louder, as native people continue to disappear, assimilate, or lose resources.
Water policy and Native American policy in the same week. Goodness, my brain.
ReplyDeleteI think Tribes are entitled to ensure the welfare of their citizens, however I think that the Federal government has failed to ensure that this actually happens. Reservations resort to casinos as their primary source of revenue and alcoholism and abuse are huge problems. They lack basic utilities and housing. But these are failures from the Federal government for not keeping any promises they made, not failures from the tribe. They are granted sovereignty, they are allowed to make and govern their own choices. Any issues that States have with them, in my opinion should be brought against the Federal government, not the tribal nation themselves.
Pine Ridge Reservation has been in the spotlight over the issue of substance use - alcoholism. Nebraska Supreme Court ruled to close several liquor stores that border the reservation.
DeleteOriginally when I read this; I did not think that the states would have a right to file the lawsuit because they did not suffer an "injury" and were suing on grounds that ICWA is unconstitutional without an actual "injury". However, when I read the summary of the Haaland v. Bracken decision it states that individuals involved in adoption placement proceedings in Texas were named in the suit. If that is the case, then those individuals would seem to have a case for "injury" and would sue individually, instead of the state filing suit. Please correct me if I did not read that right.
ReplyDeleteIt stuck out to me that in the opinion for Haaland v. Bracken Justice Barrett writes "In a long line of cases, we have characterized Congress’s power to legislate with respect to the Indian tribes as “‘plenary and exclusive.’...Our cases leave little doubt that Congress’s power in this field is muscular, superseding both tribal and state authority."
They are leaving no question of the federal government's authority to pass and enforce laws related to dealing with Indian tribes, and that they supersede any state laws related to many areas including Family Law.
I have to comment a second time because this case and the ICWA brought up questions for me that I am trying to wrap my mind around. I absolutely understand that the ICWA was passed to make up for the terrible wrongs done to the Indian people and the families that had children forcibly removed and families and children that lost their cultural identity (not to mention the terrible treatment and abuse they received in the “schools” they were sent to).
ReplyDeleteHowever, it seemed (in these cited cases at least) to place the desire/rights of the tribe over the rights of the children and, in some cases, the biological parents. The ICWA mandates "a court cannot order relief unless the party demonstrates, by a heightened burden of proof and expert testimony, that the child is likely to suffer 'serious emotional or physical damage' if the parent or Indian custodian retains custody." The term "heightened proof" really stood out to me there. How much higher is that burden of proof? Is it seemingly impossible to remove a child in even the worst of circumstances? Does it go too far? Is it hurting some children now to try to right the wrongs of the past? I am curious what that looks like in practice with families, tribes, and states.
I feel that I am learning so much about American history as well as the country facing some issues nowadays through these posts. I honestly have no idea the American people used to adopt kids from the Indian tribes. And that quote that you shared is very oppressive and cruel. I think everybody deserves to learn their culture and native language; even most importantly grow up with their families. Without knowing his/her native culture and language, it's hard to determine the identity of that person.
ReplyDeleteAs I was reading and learning about the case, I talked about it with my coworkers today. My manager told us that her grandmother was adopted (sold) to a white originated family when she was only 7 years old for 5 dollars. Later on, the Government offered her grandchildren to grant some scholarships when they went to college. Also, the Government gave her some money when she retired. Despite the fact she did receive those grants later on, she was frequently sad about her past and the trauma that she experienced, my manager says.
I agree with Leigh. I think those tribes were entitled to ensure their rights, but the Federal Government did not take actions to support them. Learning about those gambling, alcohol, and unemployment was common scenario around the tribes makes me think the Government wanted to erase their identity, pride, and history for purposes.
I appreciate this blog this week. I hate to always talk about my job, but many of our stores border many reservations through South Dakota, North Dakota, Wyoming, Idaho, New Mexico, Arizona, etc. We do see the long-term effects on this cultural population due to the past, but a narrowed view that is skewed. We did have an employee who lived on a reservation steal $30,000 and she went back to the reservation, and we could not arrest her. We had no rights. I have only focused on issues such as this matter. I have not ever thought about the issues with families and the constitutionality of the Indian Child Welfare Act.
ReplyDeleteIn reading further, there is a great article located at https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4393303
The article starts off talking about structural racism and the challenges of families of color being represented in the foster system. It is very disproportionate, and families don't receive much help for their families to regain their children and improve their families. I agree with the article that Congress should fund and increase the level of remedial family services for family reunification.
Your post just brings up so many questions I had not thought about because of the sovereign nations and our constitution, not to mention the actions of people. The children matter. Thanks, and I hope by learning more about the law, I will educate myself on topics such as ICBW. Maybe this will help me better understand the community struggles of our customers who live on reservations. Not sure it will mater, but change has to start somewhere.
Something needs to happen when a child can be taken away by or surrendered to the government because that child has certain health issue(s) and the family can not afford it.
DeleteI guess I'm a jack, who has done a few trades. I was a child abuse investigator for Utah's Division of Child and Family Services for a year. I didn't see everything, but I saw many. I was trained on ICWA then. Every child abuse allegation investigation requires the caseworker to ask the child(ren) and/or parent(s)/guardian(s) if they are part of or eligible to be part of any Indian/Native American/Alaskan Tribe/Nation. If law enforcement is involved, they ask as well. If the case goes to court, the judge/magistrate also asks. That is for every case no matter what ethnicity the child may predominantly appear to be.
ReplyDeleteI do not know of any caseworker who did not do everything they possibly could within the law and policy to keep a child with their family. Removal has to be one of the hardest things. I have heard of cases where a child(ren) were happy to me removed from an abusive/neglectful environment.
I did have one case involving a family of the Paiute Tribe down in Cedar City. It was a headache but ended well with family staying together and receiving help. Working with the tribe was essential in getting those children help. I've heard from many caseworkers that they felt that ICWA can make placing a child in a safe home difficult at times. Most of them recognize the importance of it due to the horrid history of the US and indigenous people. Indigenous women and women of color had also been sterilized well in to the 1970s. Laws like many things can be a double edged sword. They're can be negative results from good intentions especially when not enough resources are available and applied.
ICWA can not right the wrongs from the past. ICWA alone will not keep indigenous people including the children from suffering what is now that was caused by the past and present.
Would the 1st Amendment play a apart in keeping indigenous children in an indigenous family due to spirituality/religion?
Would the 14th Amendment apply when arguing over state rights and superior federal law?
Justin - Thank you for sharing your first-hand experience, I think it's important to know how laws affect people in real world situations. Especially a law like this with so much history, trauma, and heartache attached to it. I would hope that the ICWA had a positive effect on indigenous families as a whole. I can also see circumstances (like you mentioned above about families getting children taken away for not being able to afford health care for their child) where lack of resources can lead to a child being taken away unjustly. There is a difference between poverty and neglect, and it's disheartening to think that families can suffer because of a lack of assistance or resources that they should have available to them.
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