The U.S. Supreme Court has agreed to review a law that gives Indian tribes absolute control over adoptions involving Indian children – even if they are only fractionally of Indian heritage and never were members of any tribe.
The Indian Child Welfare Act repeatedly has been used to harm children who were in adoption situations with parents who were not Indian, but were pulled out of those homes by tribal demands.
In fact, in North Dakota several years ago, twin sisters were taken from a white foster parent and returned to an abusive family on a reservation, where one of the girls was killed by her grandfather’s wife.
The Goldwater Institute, which has been involved in several of the custody wars, explained the ICWA was written “with good intentions: to end policies of previous decades whereby state governments sometimes took children from Indian parents without good reason.”
The law has been the focus of the Goldwater Institute’s Equal Protection for Indian Children initiative.
The case at hand, Brackeen v. Haaland, was brought by several state governments as well as by would-be adoptive parents who were rejected for their adoption plans because of their race and nothing else.
The Goldwater Institute explained, “Unlike other laws that apply to people based on their membership in a tribe, ICWA applies to children who are either tribal members or who are ‘eligible’ for membership, based exclusively on their biological ancestry. As a result, a child with a distant native ancestor is subject to a separate—and less protective—set of rules than apply to children who are white, black, Asian, or Hispanic. And that’s true even if the child has no cultural, social, religious, linguistic, or political connection to a tribe.”
Goldwater officials said, “ICWA doesn’t just violate constitutional rules against race-based discrimination, but it also violates longstanding rules about the different powers of state and federal governments. State governments have always been responsible for child protection and family law. But with ICWA, Congress ordered states to enforce federal laws—something Congress typically can’t do. It even ordered states to interpret their own state laws differently—something Congress has never done before.”
A “strongly divided panel of judges on the Fifth Circuit Court of Appeals held that ICWA violates federalism rules by commanding states to implement federal laws, but fell short of declaring the law unconstitutional because of its race-based provisions.”
Everyone involved in the case then appealed, with lawyers for several states arguing that the law formed a “child-custody regime” for Indian children, in fact, a “race-based system is designed to make the adoption and fostering of Indian children by non-Indian families a last resort through various legal mechanisms that play favorites based on race.”
Joe Biden’s administration came into the case arguing for the racist practice implemented by the law.
WND has reported on several tragedies that resulted from the application of the law. That includes when the U.S. Supreme Court declined to review the case of Lexi Page, who was 7 when her fate was handed over to a tribe that claimed she was 1/64th Indian and removed her from her white foster parents in California. In Minnesota, two parents, from different families, went to court after county officials moved two custody cases to Native American tribal court without the permission of the parents, violating their rights under federal law. In North Dakota, twin sisters were taken from a white foster parent and returned to an abusive family on a reservation, where one of the girls was killed by her grandfather’s wife.
WND reported at the time that the current lawsuit stems from a fight over the custody of a boy named Andy, a lawsuit that was continued even though his case was voluntarily resolved.
The Goldwater Institute has explained in the case the federal law provides “separate and less-protective rules for Indian children treatment [that are] are deleterious in the extreme.”
In the California case, Lexi had lived with potential adoptive parents and siblings after her biological family disintegrated because of drugs and crime when she was just months old.
Rusty and Summer Page, who took the girl in and wanted to adopt her, however, lost their effort when California courts ruled she was subject to the ICWA because she was 1/64th Indian. That gave the Choctaw tribe in Oklahoma absolute control over her future, amid protests that their decision wasn’t in her best interests. The tribe sent her to live with non-Indian distant relatives.
In the Minnesota case, the Thomas More Society said the parental rights of James Nguyen and Michelle Steinhoff “have been usurped in matters involving each of their minor children because the state of Minnesota is placing Native American tribal law above federal law.”
The complaint, in U.S. District Court in Minnesota, explained that although Nguyen’s former spouse has documented drug problems, and Steinhoff’s former spouse a multitude of criminal convictions, the tribal-member spouses were given custody of their children.
In the North Dakota case, documented by the Goldwater Institute, Laurynn Whiteshield and her twin sister, Michaela, were raised by Jeanine Kersey-Russell, a Methodist minister and third-generation foster parent in Bismarck, North Dakota.
When the twins were almost 3 years old, the county sought to make them available for adoption. But because they were Indians, their fates hinged on the Indian Child Welfare Act.
The Goldwater Institute said the Spirit Lake Sioux tribe “had shown no interest in the twins while they were in foster care.”
“But once the prospect of adoption was raised, the tribe invoked its powers under ICWA and ordered the children returned to the reservation, where they were placed in the home of their grandfather in May 2013.
“Thirty-seven days later, Laurynn was dead, thrown down an embankment by her grandfather’s wife, who had a long history of abuse, neglect, endangerment, and abandonment involving her own children.”
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