This court case could weaken WA’s Indian Child Welfare Act

The law protects Native children from being taken from their homes without tribal involvement. The case before the state Supreme Court could tighten those rules.

protestors against separation of native children from tribes

Since it's passing in 1978, the federal Indian Child Welfare Act, which requires that Indian children removed from their home be placed with family whenever possible, has been loosely interpreted by courts, leading to challenges that have reached the U.S. Supreme Court. In 2013, protesters gathered outside a Tulsa, Okla court to ask the court not to allow a South Carolina couple to adopt a 3-year-old Cherokee girl and that custody be given to the family of the girl’s biological father. (Kristi Eaton/AP)

Scott Greer crafted his first real bow when he was 11 years old. If he tilted it slightly upwards, he could shoot an arrow a hundred yards ahead.  

“It was accurate enough that I used it all through my teenage years, just messing around,” he says.

Greer's uncles — that’s how he refers to some of his extended family — introduced him to the craft years before that. These uncles and other relatives taught him that and more when Greer was a kid growing up on the Umatilla Indian reservation near the eastern corner of Washington and Oregon. He can rattle off each of the skills he was taught, usually starting at a young age, including carving his own arrowheads and how to make an even stronger bow. 

“They taught me how to salmon hunt our Native way,” he adds. He learned how to catch fish by hand, standing still in a creek for hours: “I caught my first one at about 15, 16 years old, and they’d been showing it to me since I was 8 or 9.”  

His fiancée, Lindsay Graham, was similarly taught traditional skills by her mother, a member of the Central Council of Tlingit and Haida Indian Tribes of Alaska. With her, Graham learned how to make beaded blankets that hold special significance for their tribes. Both Graham and Greer imagined that these were traditions they’d pass down to their own kids. 

That changed in 2018, when their sons, Michael and Zacharia, were placed in foster care because of “concerns of neglect or unsanitary conditions” at home. Placement of Native children is typically guided by protections under the U.S. Indian Child Welfare Act (ICWA) and related state laws, which emphasize that children be kept with family whenever possible.  

But it’s not always so simple. At the beginning of any proceeding to remove a child, a court must ask if there’s a reason to know that the child is “Indian,” a legal term indicating that a child is American Indian or Alaska Native. If they find that there is, that’s when the court will apply ICWA and reach out to relevant tribes to check on their membership. The specifics of what constitutes a “reason to know,” however, can be elusive.

While both Greer and Graham told the court about their Native heritage, a judge found it wasn’t enough of a “reason to know” that their children were Indian under the law and ICWA wasn’t applied. But a month later, the Central Council of Tlingit and Haida Indian Tribes of Alaska successfully intervened — Graham, they explained, had unknowingly been a Tlingit and Haida member all her life. 

ICWA was thereafter applied to the case, but the damage was done — the children were placed in foster care without the normal protections the law would have offered them. Now, the Central Council of Tlingit and Haida Indian Tribes of Alaska are challenging the decision in the Washington State Supreme Court. If the court’s decision is upheld, advocates say the case could significantly weaken the use of ICWA in Washington by raising the bar for what qualifies as a “reason to know” that a child is “Indian” in the eyes of the law.

Kathryn Fort, director of Michigan State’s Indian Law Clinic, who is arguing on behalf of the tribes in the case involving Greer and Graham, says that it shouldn’t be so difficult. The burden of checking in with a tribe is low, she says, but the outcome has immense implications for the family, children and tribe. 

Beyond the legal issues, this case has been particularly perplexing for Fort. “To find no ‘reason to know’ there’s an Indian child involved when you’re literally looking at Indian people in the courtroom — it makes no sense,” she said.

Challenges to ICWA over the years

For decades prior to ICWA’s creation by Congress in 1978, as many as a third of all Native children in the U.S. were taken from their families and placed outside of their communities, even when fit and willing family members were available, according to testimony before Congress. These children were often forced to assimilate with white, Euro-American culture. 

Under ICWA, qualifying Native children cannot be placed in foster care without looping in their tribe or tribes. The law also requires these children be placed with family members — a cousin, an uncle, a grandma — whenever possible, thereby keeping them connected to their culture. 

Maintaining this cultural connection can have far-reaching repercussions, which is why this case is so important to the Central Council of Tlingit and Haida Indian Tribes of Alaska, as well as other tribes across the continent.

“A tribe’s very existence is dependent on having future citizens,” says Madeline Soboleff-Levy, general counsel of the Central Council of Tlingit and Haida Indian Tribes of Alaska. “The tribes’ existence as a cultural entity and sovereign government depends on those citizens having connections with their community and having a sense of who they are.”

Tribes are supposed to be involved early on in cases involving Native children, allowing them to intervene or even take the cases to tribal court. Advocates say the law is as necessary as ever, citing reports that Native children are much more likely to be placed in foster care than their white counterparts.

But in recent years, opponents of ICWA have called the law “race-based” and unconstitutional. State and federal courts have denied these arguments. An appeals court decision upheld the federal law, ruling that a Native child’s relationship to their tribe is cultural but and, more importantly before the eyes of the court, political. 

Brooke Pinkham, director of Seattle University’s Center for Indian Law and Policy, offers this explanation: “Tribes are governmental entities and sovereign nations and have the power to not only govern their own people, but to have the right to intervene.”  

In response to competing interpretations of “reason to know,” the U.S. Bureau of Indian Affairs published ICWA guidance for courts in 2016. It suggested an “expansive” interpretation of the law, meaning that courts should err on the side of caution and, when in doubt, find that there is a “reason to know.”

Tehassi Hill speaks to reporters

In 2019, the federal Indian Child Welfare Act was challenged in New Orleans, when Tehassi Hill, tribal chairman of the Oneida Nation, joined other tribal members to argue before the court the constitutionality of a 1978 law. On Aug. 9, 2019, the 5th U.S. Circuit Court of Appeals in New Orleans upheld the constitutionality of the law. (Kevin McGill/AP)

In 2019, the federal Indian Child Welfare Act was challenged in New Orleans, when Tehassi Hill, tribal chairman of the Oneida Nation, joined other tribal members to argue before the court the constitutionality of a 1978 law. On Aug. 9, 2019, the 5th U.S. Circuit Court of Appeals in New Orleans upheld the constitutionality of the law. (Kevin McGill/AP)

The ‘gold standard’ of child welfare

Despite that BIA clarification, courts have still interpreted this differently, as in the case involving Greer and Graham. During a June 26 hearing before the Washington Supreme Court, an attorney for the state Department of Children, Youth and Families said the issue was with Greer and Graham’s description of their tribal affiliation. The parents indicated potential heritage or ancestry, he said, which would be enough to suggest that they had Native blood. But he argued that it did not indicate a political affiliation with the tribes, which is what was required for ICWA to apply. 

“A report of ancestry or heritage would not be sufficient in the department’s view… even for reason to know,” the attorney said at the hearing. 

But Tara Urs, a public defender as part of the King County Department of Public Defense representing Greer, said this would be a stricter interpretation of the law than has been used in similar cases in the past. She cited a 2005 case as an example, in which a mother said she wasn’t enrolled with a tribe, but that her adopted parents told her that her father was “full-blooded Cherokee,” which the court took as enough of a “reason to know.” In this case, Urs said, there was enough evidence of potential Native membership or eligibility to play it safe and reach out to the tribes mentioned by the parents earlier. 

That’s why Urs says ICWA advocates often call it the “gold standard” of child welfare policy. It emphasizes preventing removal whenever possible and keeping children with family. It’s especially important that ICWA be applied early, Urs says, because applying it too late has consequences. If a child was removed months or years ago, that could make the situation more difficult for a child when his or her family begins to exercise their rights under ICWA. 

“When you see these sort of headline-grabbing tragic cases of children who’ve been placed with a pre-adoptive home for years and then it turns out that ICWA applies … you get these sort of very emotionally challenging cases that pit children’s stability against their connection to their family and their tribe,” she says. 

While Michael and Zacharia’s status as Indian children was proved a month after the first hearing, they stayed in foster care for almost a year. In May 2019, they were placed with their grandmother, where they remain today. Greer and Graham continue to work toward moving the children back home with them. 

Greer wonders if his kids’ lives would have been different if they were placed with their grandmother first — that, he says, would have been a huge improvement from his perspective. The couple lived in Auburn, miles away from where their children were separately placed. It took multiple buses for them to get to those locations, and the visitation hours were difficult to make. That also made it especially hard to have frequent visits.

Greer had only just started talking about crafting bows and other traditions with his older son, Zacharia, now 3 years old, before he was placed in foster care. Greer has continued conversations about these traditions with Zacharia, but foster care has changed their relationships.

“What kills [Graham] and me is knowing that he couldn’t go 10 minutes without mom and dad — unless he was with grandma,” Greer says about Zacharia. “Then all of a sudden a bunch of strangers come and take him away … and there’s no one from his family anymore, not anybody that he knows.” 

A decision in the case is expected within the next few months. Even if it ends in the tribes’ favor, Pinkham says she doesn’t expect this debate over ICWA to end. A court case in Texas that initially ended in favor of keeping ICWA protections, for example, continues to be contested.

“I think challenges to ICWA are going to continue and still present themselves in other ways,”  Pinkham said.

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