Berkeley Talks: The future of the Indian Child Welfare Act

[Music: “Silver Lanyard” by Blue Dot Sessions]

Intro: This is Berkeley Talks, a Berkeley News podcast from the Office of Communications and Public Affairs that features lectures and conversations at UC Berkeley. You can follow Berkeley Talks wherever you listen to your podcasts. New episodes come out every other Friday. Also, we have another podcast, Berkeley Voices, that shares stories of people at UC Berkeley and the work that they do on and off campus.

[Music fades out]

Martín Sánchez-Jankowski: Hello everyone. My name is Martín Sánchez-Jankowski, and I’m professor of sociology and chair of the Joseph A. Myers Center for Research on Native American Issues. Today I’m welcoming you to our colloquium series, and today’s colloquium is sponsored by the Native American Student Development, the Native American Law School Association and the Center for Race and Gender. And I want to thank all three of those entities for co-sponsoring.

Now, today’s format is one we usually use. I will introduce our speaker. Our speaker will address this for about 30 minutes. This will be followed by a discussion time period. If you have a question, please use the Q&A feature and the Myers Center academic coordinator, Deborah Lustig, will ask these questions on your behalf.

Now it is my pleasure to introduce our speaker for today. She is Sarah Deer, who is University Distinguished Professor at the University of Kansas, where she has a dual appointment in women, gender and sexual studies and the Indigenous Studies Program. She’s an enrolled citizen of the Muscogee Creek Nation.

She is also author of the book, The Beginning and End of Rape: Confronting Sexual Violence in Native America, and co-author of four textbooks on tribal law. She serves also as the chief justice for the Prairie Island Indian Community Court of Appeals. And today she will actually address this with the title, “Brackeen Decision and the Future of Indian Child Welfare Act.” It’s my pleasure to introduce Professor Sarah Deer.

Sarah Deer: Hi everyone, it’s so nice to be invited to speak at Berkeley virtually, and thank you for all of the folks who have organized and combined budget money to make this happen. I really appreciate it. I’m going to be speaking for about 30 minutes about the Indian Child Welfare Act (ICWA) and particularly the recent Supreme Court decision in Brackeen v. Haaland. So I’ll be covering a little bit of the pre-ICWA history, the Indian Child Welfare Act itself, exploring anti-ICWA sentiment in both the media and the courts, and then focus on last summer’s decision in Brackeen v. Haaland.

So in order to understand, well, let me preface everything by saying that the Indian Child Welfare Act is a topic worthy of a full semester of study in my opinion. So I’m only going to be able to just, the tip of the iceberg basics, but there are certainly a lot more to say about ICWA than I can do in 30 minutes.

But I want to begin by just talking about why ICWA was passed, and it has to do with a very tragic history in the United States of removing children from Native homes. This issue really became a profound harm to Native people during the boarding school era in which the policy of the federal government was to remove children from their Native homes and send them to boarding schools, sometimes thousands of miles away. At these boarding schools, the attempt was to civilize, so-called “civilize,” Indian children, which was really a euphemism for destroying their identity.

I call these schools “brainwashing schools” because these children were taught to hate their heritage, their language and their spirituality. And so for nearly a century, children were removed regularly from their homes. In some cases, in the early part of the 19th century, parents who refused to send their Native children to school were actually threatened with starvation and incarceration.

So we had that history and then ongoing and then continuing after the boarding school era, we had a time period in which it seemed like social service agencies across the United States were wholesale removing Native children from reservations and adopting them out to non-Native couples. And this pattern differed by geographical region, but it’s estimated that between 25 and 30% of all Native children had been removed prior to ICWA. And in some cases that number was much higher. And the concern was really about the placement of children with white families who didn’t know about Native culture, and in fact were interested in sort of an opportunity to be a savior, I guess to some extent.

And so we had large wholesale removal of Native children by social service agencies and of course then state courts who would certainly rule on an adoption in state court. So Native people were aware of this problem for a very, very long time and had been trying to communicate about this crisis for some time. And ultimately the culmination of these efforts was the actual statute itself, the federal law called the Indian Child Welfare Act. It was passed with overwhelming consensus by Congress and it was only after a series of, I think, maybe eight to 10 very intense hearings about the need for this law.

So that’s the sort of backdrop of what ICWA is. It was a response to wide-scale child removal from Indian reservations. And those who work in the ICWA field, whether as lawyers or as child welfare workers, kind of have this piece memorized. And that is the congressional finding that’s within the legislation itself, that there is no resource that is more vital to the continued existence and integrity of Indian tribes than their children. And so that particular passage has proven time and time again how important ICWA is to not only the children that are affected, but also tribal nationhood as a whole.

In one sense, ICWA could be conceived of as a sort of congressional fix for abusive state practices, and it really intended to provide federal standards, a nationwide standard that all state courts would have to comply with to determine whether Indian children could be placed in non-Native homes. And so, it was an intervention, it was a political intervention and a crisis created by state courts.

ICWA is a lengthy law and there are many provisions. And then there are also companion regulations that are promulgated by the Bureau of Indian Affairs, and as such, there’s a lot of detail. But for the purposes of this presentation, the important things that ICWA does include the requirement of state courts to follow certain federal guidelines when a Native child is facing out-of-home placement, that is to remove the child from a biological home into foster care or ultimately a permanent placement with adoption. One of the things that it requires is that if a child is a Native child, that there be notice to tribal nations that a child of their nation is going to be involved in this proceeding.

This also applies not just to children who are enrolled in a tribal nation, but also children who are eligible to be enrolled. Sometimes we have a very young child and that young child may not yet be officially enrolled because the paperwork hasn’t been done but is nonetheless eligible for membership in a tribal nation. Tribal nations are then given the opportunity to intervene, in some cases, transfer the case to tribal court.

And in cases where the tribal court does not exercise jurisdiction, the state court has to go through different kinds of standards than it would be in a non-Native case, including what we call active efforts to keep the family, the biological family together. And if a state court is going to place a child out of home, they must prioritize family members first, tribal citizens of the same tribe, second and third, Native families of any tribal background.

So ICWA really is designed to ensure that these children aren’t placed in homes with non-Native adoptive parents or foster parents without doing everything possible to keep the children together in their biological home. So there’s a lot more to it, but I think that this will suffice for our discussion of Brackeen.

Now challenges to ICWA have been ongoing ever since 1978 when Congress passed the law. The media coverage, which I’ll go into in a second, has been profoundly anti-ICWA by and large just due to misconceptions or myths or stereotypes. But the adoption industry has also been challenging ICWA regularly since its adoption. Also, prospective non-Native, foster and adoptive parents or current adoptive parents of Native children have also raised challenges to ICWA and then some, but not all state governments also have raised challenges to ICWA. So there are a lot of different parties at play here in determining whether or not ICWA is the right law for this purpose and whether or not the law is constitutional.

A few years ago I was really interested in looking at how the media portrayed ICWA, and there have been some other studies on this issue, but I particularly focused on editorials and op-eds in newspapers and how those editorials and op-eds framed the issue. And this will just give you an example of the vitriol and the absolute racism that comes with anti-ICWA sentiment.

One of the findings was that anti-ICWA editorials and op-eds are really obsessed with fractions and percentages. When a citizen of a tribe is 100% a citizen, just like you wouldn’t say somebody is part American, right? You’re either an American citizen or you’re not. And there seems to be a lot of misconceptions about that.

So for example, editorials will claim that ICWA is a racially discriminatory law, which is a fundamental misunderstanding of tribal identity in the United States. And so that becomes really the lead in these anti-ICWA movements is this idea that you’re treating these children differently based on their race, when in fact it is a distinction based on a political classification as a tribal citizen.

Some of the other media trends that I discovered in my research were very condescending. So for example, saying it’s laudable that the Cherokee Nation wants to preserve their heritage, or I can understand why this group deeply resents the adoption of their children. So that would be sort of, I guess, the most innocuous sort of critique is a real condescension, but it gets much more significant.

Some of these editorials compare ICWA to Nazi Germany, to the Jim Crow era, to slavery. And this really, again, is just a complete misconception of what Native people are, how they are categorized as political citizens as opposed to a racial identity. I gathered some of the most common words and phrases used to describe ICWA. The one that really seemed to be common is this word perverse is used in many of these editorials to describe ICWA. Additionally, we’ve seen very racially coded language, like ICWA is barbaric or ICWA is massacring families, which of course harkens back to myths about Native people.

In fact, one editorial I found compared ICWA to child sacrifice. So although this is a small newspaper and maybe a right-wing newspaper, it was just in 2016, not that long ago that the comparison was made, that ICWA was similar to sacrificing children. I also looked at the way in which editorials characterized parents, and I found a distinct difference between how these editorials described Native parents or biological parents and white parents, white adoptive parents.

Native biological parents are typically described in disparaging terms. Tribes are described in some as primitive or unsanitary. There’s a focus on substance abuse and criminal history, and very, very rarely do you see Native biological parents called loving. Now in white adoptive parents are described in angelic terms, loving, an emphasis on married parents, an emphasis on stay-at-home parents, that they’re affectionate and loving and honest and stable.

So when you pull all of these editorials, you see a sharp distinction between how Native parents are characterized and adoptive parents are characterized. Anti-ICWA forces also insist that tribal nations are in ICWA in order to assert some sort of power that’s not worthy.

So for example, an editorial might say, anyone who would ruin a helpless child’s life in order to assert their own legal prerogatives or to protect the tribe’s turf, raises very serious questions about what kind of parent they are. Now, clearly this misunderstands ICWA and misunderstands the goals of tribe, which is not to ruin a child’s life, but rather to sustain that child’s life in connection with their tribal identity.

So these are the messages that many people read. They may not read the law, but they do read the newspaper, they do look at websites, and when this is the messaging that’s being sent to the public, we can understand why ICWA is ripe for attack, I suppose. And that ends up with our case in Brackeen.

Now, I want to make one caveat to the earlier discussion about how ICWA works. ICWA does not apply in divorce cases, whether it’s a child custody issue. Some people think that if there’s a Native parent and a non-Native parent, then the Native parent can use ICWA to gain custody, sole custody of their child because they are Native, and that is inaccurate. It does not apply when you have two biological parents who are engaged in a custody dispute, ICWA does not apply to that. It applies only to the out-of-home placements that occur in maybe a child neglect proceeding.

But back to Brackeen. This case was a long time in coming. There have been many ICWA forces, the anti-ICWA forces that have been trying to raise this issue for many, many years. So in this case, we had a 10-month-old Navajo boy, and he was placed with a couple, the Brackeens, a non-Native couple pursuant to Texas law. The mother was terminated, had her parental rights terminated because she was an alleged drug user, and the father was Cherokee.

And at any rate, the Texas State Court terminated the parental rights of the Native biological parents in 2017. Now, the Navajo Nation did seek to intervene in this case, but ultimately, the Brackeens were allowed to permanently adopt the child. What happened later is that the child they adopted had a half-sister who was also being considered for out-of-home placement, and they sought to adopt the sister, but were stopped by the efforts to support the ICWA and ensure that tribal children remain with tribal people.

So the parties to the case itself, once it reached the Supreme Court, were essentially the federal government defending ICWA, and the anti-ICWA parties included non-Native adopted parents or prospective adopted parents, and three primary states, Texas, Louisiana and Indiana. Now, not all states are anti-ICWA. In fact, near the end of the presentation, I’ll talk a little bit about states that support ICWA and even enact their own state version of ICWA.

So the primary legal arguments that were raised in Brackeen at the Supreme Court can be collapsed into three to four categories. I’m going to use three for the purposes of this presentation. And the primary effort is around this classification question. Many argue that ICWA violates the equal protection clause, the 14th Amendment and the Fifth Amendment. In other words, ICWA is racist because it treats Native children different from other children. And if you believe that Native people make up a racial classification, then you see it as an equal protection violation. But in fact, ICWA deals with political entities, tribal nations and their citizens.

Another argument that was raised is that Congress did not have the power to enact ICWA. And that, finally, ICWA violates the 10th Amendment commandeering clause arguing that the federal government does not have the authority to order a state court judge to do a thing.

So these were the primary arguments, and the one that we were most concerned about was the very first one, the equal protection claim. Because the federal government does treat tribal citizens and tribal nations separately, there’s an entire title of the United States Code, Title XXV, which is solely about Indians, and we’re Indians to be classified as a race, it would implicate those equal protection questions and potentially overturn all of Indian law.

So it’s not just about ICWA, it’s also about the nature of the relationship between the United States and tribal governments. It’s not a racial classification. So we were very concerned that this argument would be picked up by the Supreme Court and that it had the potential not just to overturn ICWA, and to be clear that’s what was being asked, but that it could eventually cause additional laws treating Indians differently and potentially overturning the very nature of what Indian law is in the United States. So that was really our concern. Obviously we wanted all of ICWA to be upheld, but we were particularly concerned, and particularly with this court, that they would find a racial classification to exist.

The lower court, the 5th Circuit Court, the briefing, the amicus briefs filed at the 5th Circuit give you a good understanding of just how many people were concerned about the potential of overturning ICWA. Over 480 tribal nations filed briefs with the court. Fifty-nine American Indian organizations filed briefs with the court and 26 states on behalf of the tribal nations or the United States in this case. So it was clear that this was a benchmark case in the coming and that there was a tremendous amount at stake.

The case was argued in November of 2022, and we received the decision near the end of the court’s term just last June, and it was very painful time waiting for that decision and sort of trying to reckon with what would happen if ICWA was overturned. So each Monday or each day that the court released an opinion, had an opinion release day, many of us were refreshing our browser on SCOTUS blog or on the Supreme Court website just constantly refreshing our browsers because this case was so important that we wanted to know immediately what was the outcome and ICWA was upheld, and by a margin in that we did not predict. It was seven votes for ICWA and two votes against.

One of the concerns that folks had was we had two adoptive parents on the court, Chief Justice John Roberts and Associate Justice Amy Coney Barrett. And we were concerned obviously that, as adoptive parents, they might perceive the issues in this case differently. But in fact, both Chief Justice John Roberts and Associate Justice Amy Coney Barrett voted in favor of ICWA. There were two dissents by Justice Thomas and Justice Alito. Justice Amy Coney Barrett actually authored the decision with a very strong concurrence from Justice Neil Gorsuch. So we had Trump appointed attorneys that were voting in favor of upholding ICWA as a constitutional act of Congress.

The justices rejected the argument around congressional power. Arguing that Congress does have the power to pass ICWA. They also rejected the anti-commandeering argument, which was a 10th amendment argument and upheld ICWA. It also found, when it comes to equal protection, I guess I would say that, in my mind, I think the court sort of to use a football analogy sort of punted, they did not directly address the equal protection argument, which was the one we were most concerned about, and found that the plaintiffs lack standing to even raise the equal protection argument. So they did not decide the equal protection argument.

They punted and instead turned to standing and found that the plaintiffs did not have the requisite standing to raise these constitutional arguments. So it was a victory, but it was, and I don’t want to minimize it because it was a tremendous victory, but we do still have now this sort of looming question as to whether or not this court would find other Indian legislation potentially in violation of the equal protection clause, because we don’t have a finding here that this is a political classification. So for now, ICWA remains good law, and there are continued efforts to challenge and overturn the law ongoing in a variety of forums.

So I think when we talk about the future of the Indian Child Welfare Act, obviously for now it remains good law, but the Supreme Court did not address the equal protection argument leaving it potentially open for future cases to address. I think the main movement right now in the aftermath of this victory is to encourage state governments to adopt language like ICWA that would apply to their own state courts. Now, federal ICWA does definitely apply, especially as confirmed by Brackeen, but were there to be a congressional act or a new case that suggested ICWA was no longer good law.

Or was a violation of equal protection, states that have their own language regarding the Indian Child Welfare Act would continue to be able to do the things that ICWA does even if something were to happen to the federal law. In addition, state governments have the ability to add even more protections for Native children being placed in out-of-home care. So the ACLU who filed an amicus brief on behalf of the government in this case and other civil rights organizations are encouraging states to consider adopting their own versions of ICWA that would apply in cases in state court.

There are currently about 17 states that have their own ICWA laws. They may mirror the federal law or they may add additional protections or provisions on top of what the federal law requires. And the National Conference of State Legislatures is the entity that tracks state legislation in this area.

Also, the Indian Law Clinic at Michigan State University School of Law also has comprehensive charts, Excel spreadsheets that look at what state legislation is doing with regards to ICWA. So you can see a certain geographical pattern appear here when we look at the states with ICWA laws and states without ICWA laws. So there are efforts underway in many of these states that don’t have an ICWA law to encourage them to pass their own version and thereby perhaps skirting around any new legislation from Congress that would limit ICWA provisions or other federal courts, which may take a different stance or try to distinguish itself from the Brackeen case.

So this is really, I think, where the movement is right now as we continue to fight states, some states with ICWA, this is an ongoing sort of political campaign to ensure that ICWA remains good law and that children remain with tribal citizens as their parents.

For those of you who are interested in learning more about the Indian Child Welfare Act, I think that the best source for a lot of this information is the National Indian Child Welfare Association, NICWA.org. They provide training, sample legislation, background information, frequently asked questions, section that goes through a lot of the nuances and the particularities of ICWA, hoping and helping state court judges understand the law and the responsibilities that they have.

As I mentioned, the Indian Law Clinic at Michigan State University is another great source. There are many tribal, sorry, excuse me, there are many law schools that have an Indian law clinic, and many of them do work on ICWA cases.

But I would say, in terms of volume of cases and the extent of the extensive knowledge, one of the top ICWA law schools would be the Michigan State University College of Law, in particular, Professor Kate Fort, who has also written a book about American Indian children and the law. In terms of day-to-day developments, I highly recommend the Turtle Talk blog, which is also a Michigan State project. They post daily about federal Indian law issues and tribal court issues, and any movement on a state ICWA provision or any litigation challenging ICWA is almost immediately made available on the Turtle Talk blog.

So these are three resources I would recommend to folks who are interested in learning more about the law, the challenges to the law, and of course the future of the law. Thank you again for this really amazing opportunity to talk to you tonight about ICWA. I’ve provided my email address here. If you have any questions about the material, please do email me. I will try to get back to you as soon as possible. But again, I think that the website NICWA.org, the National Indian Child Welfare Association, is a primary starting point for anyone interested in learning more about ICWA. So thank you again for this opportunity, and I look forward to answering your questions and comments.

Martín Sánchez-Jankowski: Thank you, Professor Deer. Now I want to invite the participants to ask questions concerning the presentation today. We will have, of course, we will have opportunity to ask a number of questions, and my colleague, Deborah Lustig will take these questions and ask them for you. So please use the chat, the Q&A feature on your screen in order to communicate first with Professor Lustig and then also with Professor Deer.

Deborah Lustig: Thanks Martín, and thank you so much, Professor Deer. This was fascinating. We have a question from a guest, Maria Oliveira, who asks, “If the Supreme Court rules ICWA to be unconstitutional because it violates equal protection, then how will the state versions of ICWA be able to stand as well? Wouldn’t they also be challenged on equal protection grounds?”

Sarah Deer: Obviously there’s a potential for that. However, state laws are of course governed by state constitutions, and the state constitutions’ language and case law on equal protection might differ from that of the federal Constitution. So in other words, states can provide more rights to Indian children than federal law requires. So while it’s not foregone that a state ICWA law could be challenged, I think that it’s the best thing that states can do right now to protect ICWA and to judge ICWA according to its own laws, its own state laws and constitution.

Deborah Lustig: And I have a follow-up question. Are all the state laws sort of as good as the federal ICWA law or better or do you see some problems with the state laws?

Sarah Deer: I haven’t seen an assessment on that particular question. I think, again, the Turtle Talk blog, if you just tag, they have a tag for ICWA, they’re often posting state cases about ICWA and analyzing the reasoning and the arguments made in state court. But I haven’t seen any sort of formal assessment as to whether or not the state laws are doing things in a more helpful way or a more constitutional way than the federal law itself.

Deborah Lustig: OK, thank you. And we have a question from Phillip Mahos who asks, “What is Title XXV in relation to ICWA?”

Sarah Deer: Thank you. That’s a great question. So Title XXV of the United States code is simply “Indians,” that’s the name of the title, and ICWA is codified in Title XXV. So Title XXV covers everything that the federal government legislates as regards to Indian tribes. So you can imagine its length and breadth. The Indian Child Welfare is located within Title XXV.

The fear that I spoke about would be that if a court were to determine that ICWA is a violation of the equal protection clause, that same reasoning could be applied to the entire title itself, that treating Indians as different in any way would trigger an equal protection analysis and ultimately had the potential to say that we can no longer treat Indian tribes separately or Indian citizens separately because it’s a 14th and 5th Amendment violation, so there’s a lot at stake. But the short answer is that ICWA is codified in Title XXV of the U.S. code.

Deborah Lustig: Thank you. I have a question about the media analysis that was fascinating. Maybe I missed it. I wasn’t sure what years you covered in that, so that’s one question. And then also, it’s great that given the terrible things that are happening in the media, we still got this favorable decision by the Supreme Court, but it suggests that in the court of public opinion, as people say, there’s a lot of work to do.

And I’m just wondering what, I mean, I know you’re a law professor, but you did this in media analysis and your work is beyond just law. I’m just curious if you could just, I don’t know, there’s been some new, there’s been more visibility of Native voices in TV and books and popular culture and, I don’t know, how can we change that and do you see that changing? And maybe it doesn’t matter that much given that the verdict ended up the way it did, but I’m just curious to hear your thoughts on that.

Sarah Deer: So the research that I did was gathered. We gathered editorials between 1985 and 2020. So the article itself, which I’ll put the link up in just a second, was 120 editorials that we found between the years of 1985 and 2020, over 70 different newspapers, national, regional and local newspapers with national editorials by folks like George Will, Susan Estrich and others, anti-ICWA editorials authored by prominent, well-regarded national pundits.

And so, yeah, I mean, the anti-ICWA sentiment and public opinion is based on a fundamental misunderstanding. And of course, we don’t really require students in most parts of the United States to study anything about Indian law. So people aren’t exposed to Indian law, say past the 1800s. Typically, a high school curriculum looks at Indians in the history, in history class. So contemporary tribal issues are often not a part of the average American’s lexicon. It’s just not something that typical non-Native people learn anything about.

And a lot of Native people too don’t learn about this law as they should. So I think that Brackeen settled the immediate crisis for now, but it may have actually inspired more anti-ICWA sentiment because there’s just a fundamental misunderstanding. And it’s sort of a paradox, right? Because the point of ICWA is that Indian people are citizens of tribal nations, but we are attacked with racial epithets, too, that the Native parents are somehow just morally unfit to raise children.

So I think that there will continue to be litigation challenging ICWA and perhaps trying to craft a client or a plaintiff that would have standing to raise the equal protection argument. And that’s why we have to remain vigilant, because just because we got a win in the Supreme Court does not make the challenge go away completely.

Martín Sánchez-Jankowski: I actually have a question. Is there one waiting Debra?

Deborah Lustig: No go ahead. Go ahead.

Martín Sánchez-Jankowski: I actually have two questions.

Deborah Lustig: OK.

Martín Sánchez-Jankowski: The first has to do with, I’d like to have some idea about the breadth that we’re talking about. How many children are actually involved in these kinds of disputes nationwide? Obviously the number was large enough to actually invoke ICWA to begin with, or historically we know it was quite large in terms of taking children away from parents and putting them in Indian schools. So that’s one, I mean, what’s essentially, how many people are really involved in these kinds of issues?

The second one has to do with something that may be simple, and I just may well not know anything about it, but it strikes me that what’s interesting about the equal protection issue that you’ve raised and what you think is the vulnerability to me raises the question about the nature of treaties and who the treaties were based with.

In other words, if you have a treaty, in fact, in political science, we learned you usually have a treaty with some kind of separate political entity, a country as it were, a nation as it were, I assume that’s where some of the legal basis for having Indian law is that they are separate nations.

And if that’s the case, then what I don’t quite understand is the legal rationale why equal protection would even apply. I mean, we certainly wouldn’t apply it to something, if we were dealing with another country like Canada or France or whatever, and we had some things, equal protection wouldn’t even come up because they were separate entities. And I’m wondering why it actually even comes up. Why is it even applicable in this case if the courts have already recognized legal treaties with nations? I guess I’m going to ask the basis of legal treaties is what I’m asking, I suppose.

Sarah Deer: Thank you. Both great questions. In terms of the first question you asked, I don’t have raw numbers. They may exist, but I don’t have them in front of me right now. But in terms of out-of-home placement, even with ICWA, we are still seeing Native children removed at rates higher than other children within state courts, even states like Minnesota, which has an ICWA law and has done a lot of, I would say, work that maybe Texas hasn’t done in building better relationships with its tribal nations.

But we still see a need for ICWA because we still see a higher percentage of Native children being placed in out-of-home care. There may be a variety of reasons for that, but it took over a century to damage the relationship between Native children and their communities. And it has been, since 1978, we’ve had ICWA, but we’re still not quite where we need to be.

And that’s why ICWA is even more important than ever because the out-of-home placement rates continue to exceed those of other children. In terms of your second question, I, of course agree with you that treaties create an important political relationship. I teach a course right now in treaty litigation, and so our students are learning about how tribes have been able to litigate their treaty rights, in some cases winning and in many cases losing.

So we explore the treaties themselves and then we explore any of the case law that’s interpreting those treaties. But I think the key point comes from the constitution, and that’s from Article I, Section VIII, right? The Commerce Clause, that says Congress shall have the power to legislate on interstate commerce and also commerce with foreign nations and the Indian tribes. So right from the very beginning, the United States Constitution understood that Indian nations were separate.

So the challenge I think that’s happened over time is that, again, people aren’t aware of tribal nations as political entities. People might think tribes are extinct. And the other issue is that many of these cases don’t arise on reservations. Most Native people in the United States don’t live on reservations. And so when you see a Native child, say in a small town or a city that’s maybe not anywhere near where the tribe actually exists today, there’s a sense of, well, no, certainly it wouldn’t apply, in those cases you have say a Cherokee child living in Seattle, and so should ICWA apply there?

Well, absolutely, under the letter of the law. But I think again, that’s where a lot of the misunderstandings come in that, Oh, this is a racial child, this is a child with a race, and we’re treating that child differently, not understanding the political connection to a tribal nation and understanding the need for that tribal nation to have authority over what happens to its own minor citizens. But yeah, obviously I think there’s a political connection, a political classification there, but I think there’s just fundamental misunderstandings as to what tribal citizens are.

Martín Sánchez-Jankowski: Can I ask a follow-up question? Deborah, interrupt me if there’s somebody else in the queue.

Deborah Lustig: Well, let me just ask one that’s somewhat related and then you can chime in after that, Martín, how about that? So what about non-federally recognized tribes? So we have in California, elsewhere in the country as well, but in California we have so many tribes that aren’t federally recognized. Do you have any thoughts on legal strategies or other ways to improve outcomes for Native children in those tribes who are also often adopted out into white families?

Sarah Deer: Yeah, unfortunately, ICWA applies only to federally recognized tribes. And so state-recognized tribes do not get the benefits of ICWA. Now, a state could, for example, write its own ICWA law that includes state-recognized tribes. But I think that given Congress has relationships with federally recognized tribes, right or wrong, and it’s a very labor-intensive, arduous process to get federally recognized. And most tribes who petition to be federally recognized don’t get that recognition.

So we’re talking about a significant number of tribes and people that are not protected by the Indian Child Welfare Act as it currently stands. Until that changes, it would be difficult to raise these issues in state court. And that’s unfortunate. There are a lot of, what I would call legitimate state-recognized tribes, who don’t receive the protections of ICWA. So I think that was the main, did I miss part of your question?

Deborah Lustig: Well, I mean, if you have any other thoughts on improving outcomes that aren’t legal remedies, I guess, that was the other part of the question.

Sarah Deer: Yeah, I think it’s potentially really important that a state-recognized tribe have a family code, have a set of family law and has some sort of a court system, even if it’s not recognized right now as part of the protections of ICWA, perhaps down the road, it will help if the tribe has a forum for hearing these kinds of custody disputes.

Martín Sánchez-Jankowski: OK. Deborah, can I ask this question?

Deborah Lustig: Yeah, go for it.

Martín Sánchez-Jankowski: OK. I have a question about executing the law once it’s actually involved, and then on the human side of this now. So you have, in the case of Brackeen, you had these parents who had this child for a very long time or relatively long time, perhaps I don’t know, but one could imagine that’s the case. So once this decision is made and their legal basis is to return to either a tribal member or a family member or a direct family member or something along those lines, is it done immediately? Is it executed immediately? Is the child then removed from the home and actually replaced immediately?

Sarah Deer: Usually not. It usually takes some time to work through these things. In the Brackeen case, the case of the couple, the Brackeens, they were able to pretty quickly adopt the child, and it was kind of, I guess, too late for the Navajo Nation to intervene. But when a tribe intervenes and there’s pushback from either the adoptive parents or others, it ends up being quite arduous. And so there are no really quick turnarounds.

I would point to one other case, the pre-Brackeen ICWA case called, Adoptive Couple v. Baby Girl” from 2017, I think that’s, maybe 2016, wherein the child was moved back and forth between the Native family and the non-Native family, making it even more difficult for everyone involved. And with due process and with lots of attorneys involved, a lot of paperwork, it’s not something that typically happens overnight. And the tribal nation will often, this is the other myth, right? That tribal nations want to take children away.

There’s nothing requiring children to be taken away. Tribal nations have the sovereign authority to say, “Hey, if this child’s been with the adopted parents for some time, let’s open our communication with that family and have that family have some sort of visitation or some sort of connection with the child.

So it’s this idea, the myth that tribal nations rip these children from homes, loving homes, and that’s how it’s portrayed. But in fact, tribal nations have the authority not just to keep a connection with a non-Native family, but also to place a child with a non-Native family. So in some cases, if the tribe itself doesn’t have the infrastructure or doesn’t have any placements available, they can approve a non-Native home. This happens in some cases where you have a severely disabled child that needs 24-hour care, and there’s not an applicable Native foster home that can provide that care, which is understandable.

It’s very specialized care. These foster parents need special certification. So I’ve seen tribal nations place an Indian child that needs that kind of care in a non-Native home even temporarily until maybe something else can happen. So it’s portrayed often as tribe against state or tribe against adopted parents, when in fact, if we sit back and we listen and we think about the problem, open communication with the state and the tribes can actually do some problem solving, some creative problem solving to avoid these kinds of, the concern about trauma to the child. So I think I answered, I think I answered that question.

Martín Sánchez-Jankowski: Yeah, I just think, this is murky, and to me it’s murky, not because I’m anti this, quite the different, I’m trying to take the other position on this, but I’m a tribe, and I go back to your original, what you prefaced all this by is that the conditions that lead to ICWA and the conditions that led to ICWA, for example, are as a removal from the tribe. You categorize it, I think fairly so as brainwashing, which meant that it had to be out of residence of the tribal residence for a significant amount of time.

We all know that they were reintroducing them, they were alien in their own kinds of countries. That is when they return. But it does indicate that for significant periods of time, they were away from a tribal area and/or their parents. And we found that it was still a benefit to the tribe to have that returned. And so for me, the idea about whenever somebody is adopted or not adopted, it seems to be a big issue here, a political issue, if we’re going to stay with politics, does the tribe have the right to have them returned?

And if they do, even if there’s trauma involved, it’s something that actually sets the stage for either being a deterrent in the future of a particular kind of issue, but not nothing without meaning, even if we recognize that there’s trauma with the child when this is actually going to occur.

I mean, I think that raises the question. I don’t think we can actually have an easy answer where we’re going to be all bliss about this and think there’s going to be positive things just because we could work together about this. I do think there’s something about this that is not easily working together in my judgment.

I mean, if we’re going to take your stand about it being a political issue, which I do, obviously my comments are in line with yours, but if it is a political issue, then there are costs. And I think if the Navajo tribe, whether the person was adopted or not, they think this is important enough, I mean, in some sense, it’s incumbent on them to actually secure the child in some particular kind of way.

Sarah Deer: Yeah, absolutely. I mean, anytime a government removes any child from their biological parents, it’s a profound, powerful act, right? So Native children, non-Native children, when the state extends its arm inside a home, it’s always going to be painful and difficult.

But I would argue also, I appreciate your thoughts here, I would argue also that most of the time when ICWA crises happen, it’s because ICWA wasn’t followed, right? So people will often blame the law itself as causing this delay in the transfer of custody, allowing a child to live in a white home for a long period of time, and then the tribe winning and bringing that child home when in fact there are efforts by some nefarious folks in the adoption industry, and this is not in any way to make a blanket statement about adoption or adopted parents, but there are folks who will skirt ICWA, who will tell the biological parent, don’t tell them that the child’s eligible for enrollment.

So there are efforts to skirt ICWA and get around ICWA, and that extends often the placement with a non-Native family, then the tribe looks like the bad guy coming in later because they were never notified about the case to begin with. One other piece that I would mention, too, is that there’s a recurring trend, I guess I would say, of developing state and tribal judicial forums or state and tribal judges organizations.

And this has made a profound difference, not just for ICWA, but for other kinds of Indian law cases as well, where you have for the first time state court judges and tribal court judges sitting down and talking to each other and listening to each other and doing training for each other and collaborating. And so that opens up, that line of communication opens up just a tremendous amount of opportunity for judges that are hearing these cases in state court to understand their partners or their counterparts in tribal courts. And just one conversation sometimes can make a huge amount of difference.

Martín Sánchez-Jankowski: Well, I think I’ve asked the last question. And so, first and foremost, I want to thank you Professor Deer very much for a wonderful presentation and one that I learned a lot from, and I hope all our participants did as well. So again, thank you very much, and at the moment, this is the end of our colloquium series.

Sarah Deer: Thank you very, very much. It was great to be here.

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