In a 7-2 vote, the U.S. Supreme Court has ruled to uphold the Indian Child Welfare Act. The act was initially passed by Congress in 1978 and challenged in 2018 by the state of Texas and several families.
The 45-year-old law created standards for when the federal government can remove Native children from their families and provides guidelines for the placement of Indigenous children in foster or adoptive homes.
Sarah Kastelic is the executive director of the National Indian Child Welfare Association. She joins us to share what ICWA has meant for Indigenous children and the impact this law has had.
Note: This transcript was computer generated and edited by a volunteer.
Dave Miller: This is Think Out Loud on OPB. I’m Dave Miller. In a 7-2 decision yesterday, the US Supreme Court ruled to uphold the Indian Child Welfare Act. ICWA, as it’s known, is a 45-year old law aimed at preventing Native American children from being adopted outside of their tribes. The decision was hailed as a victory by Native child welfare advocates. It’s also being celebrated more broadly for not undermining key tenets of tribal sovereignty. For more on this ruling. I’m joined by Sarah Kastelic. She is the executive director of the National Indian Child Welfare Association, which is based in Portland. Sarah Kastelic, welcome to the show.
Sarah Kastelic: Thanks so much, Dave. I’m really happy to be here.
Miller: In order to understand the significance of this ruling, I think we should start with a little bit of history. Why was ICWA passed in the first place?
Kastelic: Excellent question. As you said, ICWA is a 45-year old federal law and it was a direct response to centuries of assimilationist policies that the federal government played a large role in. So, one of the ways we talk about this at ICWA is to say that there is a recipe for colonization that happens the world over. And there are some key ingredients in this recipe. So colonizers take the land, they control the natural resources, especially water, they usurp indigenous forms of governance, they supplant indigenous thought and then finally they take the children. So the basic idea here is to control the population, to cut off important resources and finally, to take children to to make sure that children are separated from their identity, from their family, from their sense of belonging. And this has happened in many different systems through the boarding school system, through the public child welfare system. And so when the Indian Child Welfare Act was passed in 1978, this was Congress’ way of putting up guard rails of ensuring that this continued mass removal unnecessarily of Native kids from their families was halted.
Miller: Can you give us a sense of numbers? What percentage of Native children who were taken from their families–because some version of authorities said that their families were not fit to have them in their homes–were then adopted or taken outside of those tribes?
Kastelic: So in 1976 shortly before ICWA was passed, congressional hearings showed that, at the time, a quarter to a third of all Native children were being removed from their families. So if you just think about that, that number is absolutely staggering. A quarter to a third of all kids being removed from their families and 85% of those kids were intentionally placed in non-Indian homes. So I was talking about that assimilationist goal and that was absolutely what the child welfare system was about at that point in time. So this impacted a huge proportion of Native families and a huge proportion of communities when you just imagine what it was like to have that sheer volume of kids being removed.
Miller: What do the numbers look like now?
Kastelic: Today, Native kids are still disproportionately represented in state foster care. Native kids are represented at a rate 2.66 times their rates in the national population, but that rate actually obscures state variants. So in some states, the rates are much higher. My family is from Alaska. I’m an Aleut person. And in Alaska, the state child population, Native Alaskan child population is about 20%. So 20% of kids in the state of Alaska are Alaska Native and yet there are 60% of kids in the foster care system. So, overall Native kids are disproportionately represented and some states are far worse than others.
Miller: What kind of framework did ICWA set up when Native children are removed from their biological families?
Kastelic: I was describing this earlier as guard rails. So another way to think about this is putting in place minimum standards so that when a Native family encountered the child welfare system, first and foremost, the priority needs to be on preserving the integrity of the family. So if it’s possible for that Native child to stay safely in their family, to wrap services and support around the family, so they can safely care for their child, then that’s what needs to happen.
If the family can’t keep that child safe and they need to be removed then the goal of the case plan should still be reunification. We still want to reunify that child with their birth family if that’s at all possible. But in the meantime, while they need to be placed out of their home, there’s a real priority around placing them first with extended family. If not them, then a member of their tribe. And if not that, then a member of another tribe. So there’s a real intentionality around keeping kids connected to family, to community and to culture.
Miller: This is obviously a national law, but what has ICWA meant for tribes and Indigenous people in the Northwest?
Kastelic: One of the stories that I tell is in my job as the executive director of NICWA [National Indian Child Welfare Association]. I get to spend a lot of time in tribal communities and specifically speaking with tribal governments. And I can tell you that I’ve never been meeting with the tribal council talking about the importance of this work and the removal of our kids from families, the importance of bringing kids back home, keeping kids connected to their community and culture. I’ve never had a conversation like that with a tribal council where there hasn’t been somebody at that tribal council who raises their hand and says, well, let me tell you about how this impacted my family. And usually in any tribal council, there are multiple council members who’ve been personally impacted by this so this is just my way of saying that this experience of the child welfare system, removing children separating families, that it’s a pervasive experience. All Native communities have experienced this. And many, many Native families have had personal experience with this.
Miller: Can you explain the challenge that was brought by Chad and Jennifer Brackeen, as well as some states?
Kastelic: Yes. So in 2017, Texas Attorney General Ken Paxton and a handful of non-Native foster parents who wanted to adopt Native children that they were fostering, brought a lawsuit in the federal district court in the Northern District of Texas. And this case basically made a number of claims about why the Indian Child Welfare Act was unconstitutional and there were quite a number of claims and some of them were very creative. So we’ve described this as an approach of like throwing spaghetti at the wall to see what sticks. So they were really going after ICWA, the Indian Child Welfare Act, and had quite a number of strategies for how they were hoping to take it down.
Although on the face of this case, it’s about the well-being of Native children, in particular, actually there’s a much larger political agenda here and some strange bedfellows when we look at the opposition.
Miller: Am I right that you were at the Court for oral arguments?
Kastelic: That’s right. Last November 9th, the National Indian Child Welfare Association, myself, some of our board members and more than 300 advocates from across Indian country were there at the courthouse holding a prayer gathering while the justices heard oral arguments in this case.
Miller: What were you expecting from the Court? I mean, there’s always a little bit of a tea leaves thing as people who are really invested in cases, read into the questions asked by judges, and the cross examining, what were you expecting after you saw the arguments made by the justices?
Kastelic: Yeah. So first of all, this hearing around oral arguments was supposed to last a little bit longer than an hour. It actually lasted more than three hours and so we really felt like the justices took the full amount of time necessary to ask the questions they needed to ask and were really seeking to understand two issues that don’t come before the Supreme Court very often. The Supreme Court seldom takes child welfare cases and also does not take a significant number of Indian law cases. So when you combine these two subject matters together, this is a case that justices really had a lot of learning to do around. So we were heartened by the amount of time they took.
We also thought the lines of inquiry were really interesting and it seemed like they were pretty focused on some of the claims in this case. They asked a lot of questions about some of the claims related to commandeering. So we felt like there were a lot of different possible scenarios. The best case would be that ICWA was upheld. The worst case is that it was declared unconstitutional and in between, because there were so many different claims, there were several other options. So our work in this waiting time between oral arguments and the decision was to prepare for many different scenarios and be prepared as advocates to address any potential adverse aspects of the Court ruling.
Miller: I want to turn to some potential future adverse impact going forward but just sticking with the dissent. Justices Samuel Alito and Clarence Thomas, said that the majority is right to say that these cases are “about children who are among the most vulnerable.” Then they added that the majority “loses sight of this overriding concern and decides one question after another in a way that deserves the rights and interests of these children.”
How would you respond directly to those justices?
Kastelic: There are some different political views here and I think what I would just say is that there is an overwhelming majority in this case. And we were really uncertain. You referenced this in your earlier question about kind of reading the tea leaves. There are four fairly new justices on the Court and only a few Indian law cases that have been heard so far and so we really weren’t sure what to expect in this case, but there was a definitive ruling here from the majority and a substantial victory for Native children and families and for tribal nations at large. So, I understand the issues raised in the dissent, but also think there’s a lot to say about the significant majority in this case.
Miller: The plaintiffs, if I understand correctly, they brought two different claims. One had to do with what they argued was the improper use of federal power. And on that point, the Court ruled against the plaintiffs on the merits. It said, no, we disagree. We think the constitution is on the federal government’s side here.
There was another claim though that if I understand this, the plaintiffs were saying that ICWA violates the constitution because it discriminates on the basis of race. In other words, they were arguing that Indigeneity is a racial category, not a political one. On that question, the Court said we’re not even going to take this up right now because you don’t have the standing. It’s sort of a kind of procedural way to punt.
What’s at stake in this distinction about race versus sovereignty, about a national connection?
Kastelic: So first, let me say you summarized two of the claims really well, the first one being about congressional authority to legislate for the benefit of tribal nations and for individual Indians in the first place. And you’re exactly right, the Court said, Congress clearly has this authority. They have plenary power to legislate on behalf of tribes and individual Indians.
Then there is a second claim that had to do with a concept called commandeering. And this is kind of an obscure concept. There haven’t been many cases brought around this concept of commandeering, but the basic idea behind commandeering is that the federal government can’t require states to carry out federal purposes using state resources. And the Supreme Court majority in this decision found that there wasn’t a commandeering problem either because the provisions of ICWA have requirements for state child welfare agencies, but also for private agencies so that this wasn’t a law that only addressed states. So they found there was no commandeering problem either. So that was the second claim.
And then the third claim as you’re mentioning was a claim about equal protection. And basically, the opponents were saying that ICWA discriminates against Native children by having these extra protections in place for them that help to ensure their connection to their family, community and culture. So it was a fundamental, intentional misunderstanding of the law and what the law says. So, whereas the Indian Child Welfare Act says that the protections apply to a very narrow population, actually. The protections apply to children who are members of federally recognized tribes or to children who are eligible for membership if they also have a biological parent who is a member of a federally recognized tribe.
The relationship that I’m describing here is a citizenship relationship. It’s a political relationship between a tribal nation–a sovereign tribe–and their citizen children. And that is fundamentally different from race. There’s no consideration of race in the Indian Child Welfare Act, but as you just pointed out, Dave, the Court didn’t find that based on the merits of the case; rather, they kicked this decision down the road by saying that none of the parties in the case had the standing to bring this issue forward. It was basically their way of saying that the parties in the case couldn’t expect any relief, couldn’t expect any remedy from the Court if the Court ruled on this. So that is kicking the can down the road and it does leave an open question about, for example, who might have standing to bring this kind of issue to the Court. So that’s not entirely clear to us at this moment, I don’t think.
And the opposition has also been very vocal to say that because of this open question in yesterday’s decision that they’re going to start bringing these kinds of issues forward in state cases. So they’re looking at state child custody cases involving Indian children where they can start trying to introduce this question about equal protection in state cases.
Miller: Just briefly, there are enormous historical reasons connected to tribal sovereignty and genocide that make this specific to Indian children, as the law states, and as the name of your association is connected to. But I’m wondering if you think there are lessons in this federal law that are more broadly applicable to all kids who are in foster care systems?
Kastelic: I love that question. And I think one of the most significant aspects of the decision that came down yesterday that I don’t think has been talked about very much is the section of the opinion that deals with the federal government’s role in child welfare. So one of the things that the opponents were trying to say is the federal government needs to kind of butt out of child welfare, that it’s state business states are responsible for regulating this area and the federal government really doesn’t have a role. And in yesterday’s decision, there was a very clear statement about the role of the federal government in setting standards in child welfare.
I think one of the global takeaways from this case is that we know that the state child welfare systems across the country are underfunded and are really struggling, are struggling with the volume of kids in the system, and are struggling to do a good job with families and kids. And I think this notion that the federal government has a legitimate role to play, not just in funding child welfare, because the federal government provides the vast majority of funding for child welfare systems. but the federal government also has a clear role in setting standards and that kind of understanding has broad implications for child welfare.
Miller: Sarah Kastelic, thanks very much.
Kastelic: Thank you, Dave.
Miller: Sarah Kastelic is the executive director of the National Indian Child Welfare Association.
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