Indian Child Welfare Act

Um, finally, well, as you should read all about the children, cause it's just massive what goes on, but there was finally somebody who Lee Cook was a tireless advocate for the indigenous youth.

And that's kind of how they eventually got to the passage of the Indian Child Welfare Act in 1978, which is still ongoing.

We talked to Chris Stearns on our podcast.

Well, it went back up before the Supreme Court a couple of years ago and they kept it.

You know, I have done cases in the South, most recently a trial [laughs] in the last few months down in Mississippi, where there are explicit statements of racism from officials on the record, and that's the kind of stuff that they don't make their way all the way up to the Supreme Court, or if they do, the Supreme Court ignores them, right? So, you know, you can look back at 1901 and be horrified by what Alfred Deakin was saying, and I am horrified, but people today still continue this stuff.

In the US, um, native children were taken from their parents, and it wasn't until 1978 with the Indian Child Welfare Act where they didn't stop the program.

They just allowed parents to say they didn't want their kids to be taken away.

Yeah.

I just felt like Fancy Dance handled the material that Wind River handles so much better.

It was so good the way that it handled like MMIW and ICWA and violence against Native women and just like the struggles that Native people go through.

And it's a story that's very similar to the story, like the premise of Wind River.

But like the way in which it's handled and narrated is clearly from a Native woman's perspective, which I deeply appreciated about this movie.

taking Roki away and then issuing this massive manhunt for her because she supposedly kidnapped Jax from this presumably upstanding white family of the grandparents.

And so the way that the film is written and all of these different characters, it shows you rather than tells you, I think, the jurisdictional maze that surrounds these issues.

And it interlaces, I think, MMIW with ICWA, with structural violence and structural racism, I think, so brilliantly through the different characters themselves.

And I really appreciated that about this film.

I do think they'll get it done And live sometime before the holidays.

It has been three years since the Supreme Court delivered a fairly resounding 7-2 opinion upholding the Indian Child Welfare Act and what was known as the Brackeen case, which we covered at length.

I'll drop a link to all that coverage in our show notes for the podcast.

But in so doing, the court in that 7-2 decision in Brackeen did not really take on the question of whether the law is a race-based law and violates the 14th Amendment.

They declined to grant what is called a writ of certiorari or cert in the case, which is a fancy way of just saying they are going to pass on it.

So this will not be another cycle of an ICWA challenge in the Supreme Court, at least for now.

And while we're on the subject of the Indian Child Welfare Act, let me start the imprint recommendations list here with indigenous reporter Nancy Marie Spears' recent story on the spread of ICWA courts around the country.

There are now 25 specialized ICWA courts in 10 states.

Let's get right into today's news.

We're gonna head to the highest court in the United States, the Supreme Court declining an ICWA challenge.

According to Native News Online, on October 5th, the United States Supreme Court declined to take up a fresh challenge targeting the constitutionality of the Indian Child Welfare Act, or ICWA.

Opponents of the law argued that ICWA's placement preferences infringe upon equal protection principles.

But tribal advocates and federal defenders pushed back fiercely, maintaining that tribal nations are political entities and sovereign, and they're not racial groups.

Now, why it matters to tribes, it secures the legal status quo, ensuring that native children remain connected to their extended families, communities, and tribal cultures rather than being adopted into native homes without tribal input.

And there's a series of acts that are passed by Congress that really are intended to return sovereignty back to Native nations.

One of them, which I focus on in the book, is the Indian Child Welfare Act, because this returns the right of Native communities to determine where children who are considered to be orphans or not in great family situations, where they get placed.

And so before that point, tens of thousands of Native children have been placed in adoptive situations or foster homes.

And after nineteen seventy-eight, first preference has to go to Native communities where those children are placed.

The Inner Child Welfare Act, which was a law that was supposed to put a nail in the coffin of not just the residential schools, the boarding schools, but also the whole policy of ripping kids away and putting them in foster care or adopting them out to non-natives to, again, allow that assimilation to tactic to be employed.

So the Indian Child Welfare Act basically created federal guidelines to state child protective services, state child CPS.

And what it said is that if you, and now there'll still be the ones charged with the authority to remove a child from a native home, but if you remove a native child, you have to put a priority on placing them in a native home.

Now, I mean, the law is just so broad that it doesn't even require that a Native child be placed in a home from his home community or his own nation.

So this effort to assimilate us using the churches, using English language, using the stripping away of anything that would identify us, it was pretty effective.

It wasn't 100% effective, but it was pretty darn effective.

And so when you come out of that era, and then you have the Indian Child Welfare Act, you have the Civil Rights Act, and you have all these things that happen in the United States that may or may not have been implemented specifically to us, there ends up being a question, who are we? Are we Americans? Are we US citizens? Well, Declaring we were doesn't necessarily mean that we were.

I mean, and again, I've said this before on the show, we were not U.S. citizens under the U.S. Constitution.

Well, actually, it didn't come down from the Supreme Court.

They refused to, uh, revisit the 1978 Indian Child Welfare Act.

I wanted to talk with him a little bit about that.

Brett is here with us today.

This is something that is important, and we still have yet to come to that reckoning of, uh, talking about this, these issues.

And, and there is particularly one issue, and this is a story I got at this from the Minnesota Reformer.

The U.S. Supreme Court will not take up the most recent attempt to dismantle the seven- uh, 1978 Indian Child Welfare Act, according to a docket.

The case involves a Red Lake Nation twins who were placed in temporary foster placement four years ago.