First, what is ICWA? Answer: The Indian Child Welfare Act. For more than 100 years, our country engaged in the wholesale kidnapping of Native American Children. These children were ripped from their parents and tribes, whipped for speaking their own language, starved and beaten all to get the Indian out of them – as recently as 1970, and in every state. Adam Mazo is the co-director of Dawnland and Upstander Project which filmed the first Truth and Reconciliation Commission in the USA, in Maine. Now adult, some of those who had holes punched in their identities, their families and their lives give searing testimony. Chief Slow Turtle of Massachusetts was one of those who shepherded ICWA into being. I knew him, not intimately, but well enough to honor his memory and his work. Here is the trailer for Dawnland, which will also be shown by PBS on 11/5/18.
The docket number for the Texas case is 17 CV 00868. You can read the docket entries and briefs at this site, including the multiple motions by Native American tribes like the Navajos and Cherokees to intervene. No, local mainstream media has not been covering this, but yes, people in my field of law are watching, intently.
A few quotes, which may explain why I think Kavanaugh is a disaster for this case and out of his depth:
“In Brackeen v. Zinke, U.S. District Judge Reed O’Connor ruled in favor of three states – Texas, Indiana and Louisiana – and several foster and adoptive couples, declaring that the Indian Child Welfare Act (ICWA) was a race-based law lacking a present-day articulation of its need. Citing a recent Supreme Court ruling on sports gambling, O’Connor also ruled that ICWA unfairly expected states and tribes to enforce federal standards.”
And as for the children themselves, and why the tribes [and Chief Slow Turtle back in the day] care and cared so much, a few more quotes:
“Native Americans in Foster Care
There were 17,896 American Indian or Alaska Native youth in foster care in 2012, according to federal data obtained by The Chronicle. That number had risen to 20 percent, to 21,576, by 2016.
In most states, these youth make up a tiny fraction of the overall foster care population. But they make up a third of all foster youth in six states: Minnesota, Oklahoma, Montana, North Dakota, Alaska and South Dakota.
Federal data also shows an increase in foster homes that identify as American Indian or Alaska Native households. There were 3,793 such foster homes in 2016, about 1,000 more than there were in 2012.
Sixty-four percent of those homes are in the six states with the highest percentage of Native foster youth, but it is hardly an even split. For example, Oklahoma has more than 1,000 Indian foster homes by itself. In South Dakota, where 60 percent of foster youth are American Indian, federal data shows only 16 American Indian foster homes.
A recent award-winning investigation into South Dakota’s child welfare system by NPR found that the number of Indian youth in foster care was wildly disproportionate to their proportion of society, and that 90 percent of those youth were not kept with their families or tribes.”
So how hideous is it that ICWA may be heading to the USSCT now? Very hideous.