Family defense attorneys say Indian Child Welfare Act helps maintain family ties and tribal sovereignty

Elysia Ruvinsky, a family defense attorney at the Department of Public Defense, routinely sees the difference the Indian Child Welfare Act makes in her clients’ lives.

In most dependency cases, state officials must show the court they’ve made “reasonable efforts” to provide parents with the services to either keep their children from being placed in foster care or have them returned. Under ICWA – a nationwide act passed in 1978 to redress the country’s long-standing practice of removing Native children from their families – the state must do more: It must make “active efforts … to provide remedial services and rehabilitative programs designed to prevent the breakup of the Indian family.”

According to Elysia, who has represented parents in dependency proceedings for the past seven years, that mandate, one of several required under ICWA, has made a difference, helping Native families stay together. “The state can’t just tell parents to go to services. They have to remove barriers – things like driving them to appointments or temporarily putting them up in hotel rooms, if that’s what’s needed. The state has to meet a higher standard; they need to actually try to return or keep children with their families.”

Now, Elysia, like other family defense attorneys at DPD and across the country, is deeply worried that this critically important law is about to be eviscerated. “I’m holding my breath,” she said.

Haaland, et al. v. Brackeen, et al., a case pending before the U.S. Supreme Court, takes direct aim at ICWA, advancing a long-discredited legal theory that laws that benefit tribes, as ICWA does, are race-based discrimination. The federal government and several tribes are defending ICWA – Haaland refers to U.S. Secretary Deb Haaland, the first Native person to head the Department of the Interior, which administers ICWA. Arguments are scheduled to take place on Nov. 9.

Because of the significance of the issues at stake, the case has touched off a powerful, nationwide response. All told, 21 organizations and individuals have filed amicus briefs in support of ICWA in the case, briefs representing nearly 500 tribes, more than 60 Native organizations, 87 members of Congress, 23 states, 30 Indian law professors, 27 child welfare and adoption organizations and others.

DPD was one of them. The department took the unprecedented step of filing an amicus brief in the U.S. Supreme Court – co-signed by 17 other organizations in eight states that represent parents in dependency cases – because of what DPD knows to be true: ICWA helps families stay together.

“Federal judges rarely have an opportunity to consider these kinds of cases and may, therefore, have misconceptions about our clients,” said Tara Urs, a special counsel at DPD and the main author of DPD’s brief in support of ICWA. “We wrote this brief to try to ground the conversation in what this area of law really looks like, in who are clients are and why keeping their families together is both a core constitutional principal and the right thing to do.”

The justices, for example, may think adoption is the most likely outcome of a dependency case. The brief aims to clarify: “As practitioners in dependency courts, we daily challenge the government’s decision to remove our clients’ children – and win. And if their children are removed, our clients can and do heal and change; their families do subsequently reunite. Nationally, only one quarter of dependency proceedings end in adoption.” 

Likewise, the plaintiffs in the case – the states of Texas, Louisiana, and Indiana and several individuals (including a couple named Jennifer and Chad Brackeen) – repeatedly misrepresent how the law operates in practice. They contend that that ICWA harms children by preventing them from having access to stable adoptive homes with white families. That is not, in fact, how the law works.  

“Contrary to the claims of its critics,” the brief states, “ICWA requires careful case-by-case decision-making, preventing rushed or poorly informed decisions about the placement of dependent children by requiring courts to consider more information, more carefully. By creating baseline procedural protections, ICWA results in better judicial decisions.”

The law requires dependency courts to consider whether children can live safely with their parents and requires states to provide meaningful supportive services when they intervene in a family’s life. And when children cannot be with their parents, the law requires courts to consider whether a child can live with their extended family, members of their tribe, or members of other tribes. “The law doesn’t mandate any placement, but rather helps dependency courts ensure that culturally appropriate family placements are not wrongly overlooked,” Tara said.

“We see the reality – how a mandate to work to keep families together should be the policy for all families,” she added.  “ICWA represents the high-water mark in child welfare policy, one of the only times a group of people – in this case, Indigenous activists and families who have suffered – were able to convince lawmakers that the system of family separation is harmful. ICWA puts meaningful checks on the state’s powers. Those checks benefit children and families.”

Elysia, at DPD, says she, too, is deeply worried that a law designed to stem the tide of removing children not only from their families but also their tribes is at risk. “Losing ICWA would mean that even more indigenous children would be removed from their families and cut off from their political and cultural identity,” she said. “A tribe cannot prosper if there are no people to maintain it.”

Anita Khandelwal, DPD’s director, says DPD’s decision to author a brief on behalf of family defense practitioners across the country reflects our deep commitment to the practice area, to our clients, and to the importance of tribal sovereignty.   

“Our defense teams know all too well the inter-generational trauma of family separation. We also know ICWA helps families stay together. It’s because of this knowledge that our defense teams fight so hard on behalf of families in the courtroom and why we are standing with the tribes and practitioners across the country in defense of this law.”

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