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WA tribes wary as Native child welfare law challenged in Supreme Court

Nov. 18, 2022 Updated Fri., Nov. 18, 2022 at 9:48 p.m.

By Alexandra Yoon-Hendricks Seattle Times

For more than 40 years, federal law has required states give preference to Indigenous families when placing Native American children who are up for adoption or foster care.

Now, a case before the U.S. Supreme Court could change that.

Washington tribes are anxiously watching the court as it reviews the challenge to the Indian Child Welfare Act, a move tribal leaders say would not only jeopardize the well-being of Native American children, but could also alter the legal rights of tribal nations.

All 29 of Washington’s federally recognized tribes have submitted briefs in support of the law to the court, which heard oral arguments last week in Haaland v. Brackeen.

Passed in 1978, the law was created to remedy the disproportionately high rate of Native children separated from their families by state child welfare agencies. It mandates states prioritize placing children who are members of a federally recognized tribe or eligible for membership first with family members, then with other members of their tribe and then with other Native American foster homes.

“Those who oppose ICWA are on the wrong side of history,” said Snoqualmie Tribe Chairman Robert de los Angeles in a statement. “A ruling that strikes down ICWA as unconstitutional will immediately threaten the lives of Native children.”

It’s a policy that allowed Robin Little Wing Sigo, a member of the Suquamish Tribe, to become a foster mother in 2001 when her second cousin asked her to care for her then-2-month-old daughter.

Though Sigo’s household had not previously been registered as a foster home, the federal law gave the tribe’s child welfare program and courts the authority to place Kylie Cordero in Sigo’s care, she said.

Being a foster mother has been a “wonderful” experience, Sigo said, made all the more fulfilling because of the supportive life she’s been able to provide for Cordero. Because of that placement, Cordero was able to maintain a relationship with her biological mother, Sigo said, and to grow up in a tightknit community surrounded by friends and family on the reservation.

“Prior to colonization and still to this day, family members take care of kids in times of struggle, whether in homelessness or illness,” said Sigo, who is also a member of the National Indian Child Welfare Association board.

“It’s a richness that comes from the reciprocity of Indian families raising Indian children.”

White families who wish to adopt Native children are among the plaintiffs in the federal lawsuit. The plaintiffs argue the law is unconstitutional because it discriminates against Native American children and non-Native families by prioritizing placements on the basis of race. They also say the law violates the 10th Amendment, which limits federal overreach, because it requires state courts and state agencies to enforce federal law.

But under federal law, tribes are sovereign nations, and its citizens are considered a political group, not a racial group, said Catherine Edwards, executive director of the Suquamish Tribe. That legal framework has served as the bedrock for a slew of federal regulations and agreements between the U.S. government and tribes concerning water and land rights, health care, gambling, and civil and criminal jurisdiction.

If the Supreme Court rules in favor of the plaintiffs, tribes fear the legal foundation protecting the rights of Indigenous nations could collapse, Edwards said, “unraveling tribal sovereignty.”

“It’s not just our children we’re fighting for, it’s that tribal status,” said Edwards, who has managed tribal children welfare cases as a state worker and has also fostered Native children.

“It’s also about tearing away, pulling the threads, of Indian law.”

The Supreme Court has reviewed cases challenging the Indian Child Welfare Act twice before, with the federal law prevailing both times. But the new legal threat has once again dredged up painful memories for many Indigenous communities.

By the time the Indian Child Welfare Act was enacted, 25% to 35% of all Native American children had been separated from their families, according to studies conducted by the Association on American Indian Affairs in 1969 and 1974.

Most were placed with non-Native families or in residential boarding schools as part of targeted efforts by the U.S. government and religious leaders to eradicate tribal culture and identity, forcing children to stop speaking their language and practicing their traditions.

“I know someone in my hometown, 5 years old, they just picked her up,” Edwards said. “They literally were just taking kids off our front porches.”

By 1975, about three in four Native American children in Washington custody were located off reservation. Today, Indigenous children still enter into the state’s child welfare system at a disproportionately high rate. A state report found that in 2018, American Indian and Alaska Native children were 80% more likely to be reported to Child Protective Services than white children.

The American Academy of Pediatrics and the American Medical Association submitted a brief to the Supreme Court in support of the law, noting the kinship care the law prioritizes produces significant benefits for children’s health and well-being.

“ICWA provides a clear, sensible mechanism for preserving family and community connections,” the organizations wrote, adding that the law is a “gold-standard child-welfare policy.”

In a statement, Washington state Department of Children, Youth and Families officials called on the Supreme Court to reject the challenge against the Indian Child Welfare Act, describing efforts to keep children from returning to tribal communities “wrong, backwards, and counterproductive.”

“We will not return to the boarding school and racist era that is within living memory and personal experience for our friends among the tribes in the Northwest, Canada, and the entirety the United States and nations contained within its territory,” said DCYF Secretary Ross Hunter and Loni Greninger, tribal co-chair of the department’s tribal policy advisory committee, in a joint statement.

Sigo’s foster daughter, Cordero, is now 21 years old and a student at Pacific Lutheran University, and recently, she’s been stressed, Sigo said. Cordero hopes to study abroad, but isn’t sure how to afford the trip, Sigo said, recalling a recent text exchange.

Sigo’s glad that’s the only stress on Cordero’s mind.

“She’s not having to be like, ‘Where do I belong?’ ” Sigo said, a strain some Native adoptees disconnected from tribal communities may experience. Cordero was raised on the reservation. She grew up weaving skirts with Sigo, singing and dancing with friends and family during tribal celebrations. The pair recently met up at the Seattle Aquarium to welcome the return of salmon to local waters.

“There is a trauma and loss not being raised by biological parents, and there is a place for you still here,” Sigo said.

A decision in the Haaland v. Brackeen case is expected by the end of June.

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