SUBSCRIBE

Get new posts by email:

How to Use this Blog

BOOZHOO! We've amassed tons of information and important history on this blog since 2010. If you have a keyword, use the search box below. Also check out the reference section above. If you have a question or need help searching, use the contact form at the bottom of the blog.



We want you to use BOOKSHOP! (the editor will earn a small amount of money or commission. (we thank you) (that is our disclaimer statement)

This is a blog. It is not a peer-reviewed journal, not a sponsored publication... WE DO NOT HAVE ADS or earn MONEY from this website. The ideas, news and thoughts posted are sourced… or written by the editor or contributors.

EMAIL ME: tracelara@pm.me (outlook email is gone)

SEARCH

Friday, April 23, 2021

What Does The #ICWA Ruling Mean For The Mountain West? For Now, Not Much

Apr 20, 2021| The Mountain West News Bureau | Tribal News

The Indian Child Welfare Act still stands, with some of its key provisions weakened by a sharply divided U.S. Fifth Circuit Court of Appeals this month. The 325-page opinion has no immediate impact on child welfare cases in the Mountain West, but it's likely to be challenged in the U.S. Supreme Court.

Since 1978, ICWA has required that tribal nations have a voice in adoption, foster care and custody proceedings involving their youngest citizens. The federal law was intended to reverse a long legacy of federal and state agencies forcibly removing Indigenous children from their families and communities.

Initially filed in 2017, the lawsuit - Brackeen v. Bernhardt then, Brackeen v. Haaland now - took aim at ICWA's constitutionality, arguing that its preference for placing Indigenous children in Indigenous adoptive and foster homes violated the equal protection clause. Thirty tribal governments in the Mountain West and the states of Colorado, Utah, Montana and Idaho urged the court to reject that argument. Ultimately, the Fifth Circuit's en banc ruling did just that.

"After this decision, and even if this decision stands, most of ICWA is constitutional," said Dan Lewerenz, an attorney with the Native American Rights fund.

Lewerenz said the court upheld what tribes have always asserted, that ICWA is based not on race, but on a child's political status as a tribal citizen. But the court narrowly ruled that certain provisions of the law, including its mandate that Indigenous children be placed with Indigenous foster parents when possible, intrude on the authority of states.

"[The Native American Rights Fund] disagrees with those holdings," Lewerenz said. But he added that the ruling does not impart any "precedential value" requiring other courts to follow suit.

"It really only applies to the Brackeen case," he said. "Any other court, state or federal, is open to reject those holdings. It is of little significance outside of this specific litigation."
 

Still, if any of the lawsuit's plaintiffs succeed in appealing the case, the U.S. Supreme Court's decision will be binding for courts across the United States. And a Supreme Court rejection of ICWA's constitutionality would have ripple effects for other parts of federal Indian law.

For that reason, Governor Phillip Perez of the Nambe Pueblo, a tribe in northern New Mexico, called the Fifth Circuit's ruling "deeply concerning."

"The Indian Child Welfare Act was enacted to protect the best interests of Indian children and to promote the stability of our tribes, our customs and traditions. This decision by the Fifth Circuit threatens who we are as tribal people and undermines our tribal sovereignty," Perez wrote in a statement.

New Mexico State Rep. Georgene Louis, who also serves as general counsel for the Pueblo of Tesuque, agrees.

"With all the challenges that have been made [to ICWA], it could be eroded. And some of the protections that ensure reunification with a child's tribe might not be there anymore," Louis said.

In New Mexico's recent state legislative session, Louis sponsored a state statute that would have ensured that many of ICWA's provisions were followed in state court proceedings regardless of the federal law's status. But that bill died in committee. In light of the Fifth Circuit ruling, Louis said codifying ICWA statutes at the state level should be a priority.

 

READ MORE:

No comments:

Post a Comment

Please: Share your reaction, your thoughts, and your opinions. Be passionate, be unapologetic. Offensive remarks will not be published. We are getting more and more spam. Comments will be monitored.
Use the comment form at the bottom of this website which is private and sent direct to Trace.


Happy Visitors!

They Took Us Away

They Took Us Away
click image to see more and read more

Blog Archive

Most READ Posts

Bookshop

You are not alone

You are not alone

To Veronica Brown

Veronica, we adult adoptees are thinking of you today and every day. We will be here when you need us. Your journey in the adopted life has begun, nothing can revoke that now, the damage cannot be undone. Be courageous, you have what no adoptee before you has had; a strong group of adult adoptees who know your story, who are behind you and will always be so.

Diane Tells His Name


click photo

60s Scoop Survivors Legal Support

GO HERE: https://www.gluckstein.com/sixties-scoop-survivors

Lost Birds on Al Jazeera Fault Lines

Lost Birds on Al Jazeera Fault Lines
click to read and listen about Trace, Diane, Julie and Suzie

ADOPTION TRUTH

As the single largest unregulated industry in the United States, adoption is viewed as a benevolent action that results in the formation of “forever families.”
The truth is that it is a very lucrative business with a known sales pitch. With profits last estimated at over $1.44 billion dollars a year, mothers who consider adoption for their babies need to be very aware that all of this promotion clouds the facts and only though independent research can they get an accurate account of what life might be like for both them and their child after signing the adoption paperwork.

NEW MEMOIR

Original Birth Certificate Map in the USA

Why tribes do not recommend the DNA swab

Rebecca Tallbear entitled: “DNA, Blood, and Racializing the Tribe”, bearing out what I only inferred:

Detailed discussion of the Bering Strait theory and other scientific theories about the population of the modern-day Americas is beyond the scope of this essay. However, it should be noted that Indian people have expressed suspicion that DNA analysis is a tool that scientists will use to support theories about the origins of tribal people that contradict tribal oral histories and origin stories. Perhaps more important,the alternative origin stories of scientists are seen as intending to weaken tribal land and other legal claims (and even diminish a history of colonialism?) that are supported in U.S. federal and tribal law. As genetic evidence has already been used to resolve land conflicts in Asian and Eastern European countries, this is not an unfounded fear.

Google Followers