The Race Issue in the Unerves Tribes Supreme Court Adoption Case

The Race Issue in the Unerves Tribes Supreme Court Adoption Case

Both the Navajo and the Brackeens complained. A state appeals court ordered a new trial.

Meanwhile, the federal case wound its way through two levels of the United States Court of Appeals for the Fifth Circuit, which issued a split opinion that found the law largely, but not entirely, constitutional.

As the case was controversial support for the law extended. A brief filed by the Indian Rights Fund was supported by 497 tribes. Other submissions were signed by 87 members of Congress and 23 states and the District of Columbia. The American Academy of Pediatrics, the American Medical Association, and the American Psychological Association all submitted reports stating that the law has helped heal physical and psychological trauma.

ICWA’s challengers have also gathered support. Ohio and Oklahoma dissented, saying the law infringes on state autonomy. Lawyers working in the field of adoption and reproductive rights have filed briefs. Like the Christian Alliance for Indian Child Welfare, which is based in North Dakota, and Goldwater Institute, a conservative political center in Arizona, where reservations cover nearly 30 percent of the land; they claimed that the law racially discriminatory.

The tribes note that, like any political entity, each of them has its own criteria for citizenship. Being a Navajo citizen, for example, one must be at least 25 percent related by blood. Some tribes claim matrilineal descent, some patrilineal. Others, such as the Cherokeethey say that what matters is the evidence lineage can be traced back to the original list of sources such as Dawes rollslists of tribal members from the late 19th century compiled, in fact, by the federal government.

Beyond the race argument, Brackeen and Texas made another, narrower claim, which some legal experts say the Supreme Court might accept as a compromise approach. ICWA imposes federal law on state family courts, whose role is to apply state law to child welfare cases. Texas says ICWA therefore violates 10th Amendmentwhich protects states from federal overreach.

But the welfare of Indigenous children has always been a federal responsibility, he said Maggie Blackhawkprofessor at the New York University School of Law and primary author a pro-ICWA brief for the American Historical Association. In the 1930s, for example, when the federal government tried to close its boarding schools and turn child care over to the states, “the states fought back, saying, ‘No, they’re not our children,'” she said, adding that the states did not want to shoulder the financial burden as they have no authority to tax the tribes and reimburse them for their expenses.

If the Supreme Court strikes down ICWA for overreach, states can enact their own versions, at least 10 already did. But if judges strike it down as racially discriminatory, states would be hard-pressed to enact similar laws.

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