Indian Child Welfare Act Under Scrutiny | The Line

Indian Child Welfare Act Under Scrutiny | The Line


>>ENACTED IN THE 1978, THE
INDIAN CHILD WELFARE ACT REQUIRES STATES TO PRIORITIZE
THE ADOPTION OF THE NATIVE AMERICAN CHILDREN WITH
RELATIVES, TRIBAL MEMBERS OR OTHER NATIVE AMERICAN
FAMILIES. SUPPORTERS OF ICWA, AS IT IS
ALSO KNOWN, SAY IT PROTECTS AGAINST A HISTORY OF POLICIES
ALLOWING THE GOVERNMENT TO TAKE NATIVE CHILDREN FROM
FAMILIES WITHOUT CAUSE AND OFTEN WITH THE EXPRESS GOAL OF
ERADICATING TRIBAL IDENTITIES. OPPONENTS SAY IT PUTS A
CHILD’S RACE ABOVE HIS OR HER WELL-BEING. JOINING US TO DISCUSS THIS
TOPIC AND OTHERS, WE WELCOME THE PANEL, LONG TIME REGULAR
AND ATTORNEY SOPHIE MARTIN IS HERE. FORMER STATE REPRESENTATIVE
AND ATTORNEY JUSTINE FOX-YOUNG. LAST TIME SHE WAS WITH US,
THERE WERE TWO IN HER SEAT. NOW THERE IS JUST ONE AS SHE
HAS ADDED A BABY GIRL TO THE FAMILY. CONGRATULATIONS.>>THANK YOU, GENE. GLAD TO BE BACK IN THE SEAT.>>KRISTELLE SIARZA IS HERE. SHE IS PRESIDENT AND OWNER OF
SIARZA SOCIAL DIGITAL, AND WE ROUND OFF THE REGULAR PANEL
WITH SERGE MARTINEZ, ALSO A PROFESSOR AT THE UNM SCHOOL OF
LAW. THANK YOU FOR BEING HERE. LAST YEAR THE FEDERAL JUDGE IN
TEXAS RULED THE INDIAN CHILD WELFARE ACT UNCONSTITUTIONAL
AND A FEDERAL APPEALS COURT PANEL LAST WEEK, THOUGH,
OVERRULED THAT DECISION, GIVING A WAY FOR REARGUING OF
THE CASE BEFORE THE FULL APPELLATE COURT AND A
POTENTIAL FUTURE DATE BEFORE THE U.S. SUPREME COURT WHERE
IT WAS THIS ISSUE A FEW YEARS AGO. SOPHIE, COMPLICATED LEGAL
SITUATION TO SAY THE LEAST. DID ICWA, IN FACT, WHILE WELL
INTENDED GO TOO FAR TO RIGHT WRONGS?>>NO. IT IS HARD. ICWA IS ABOUT TRIBAL
SOVEREIGNTY. THE TRIBES HERE IN THE U.S.
HAVE A UNIQUE RELATIONSHIP WITH THE FEDERAL GOVERNMENT,
WITH THE STATE AND REALLY I AM GOING TO CALL OUT THE THING
YOU SAID BEFORE WHERE YOU DESCRIBED THE STATE COURTS
PLACING CHILDREN INTO PARTICULAR PREFERRED
ENVIRONMENTS BUT ACTUALLY A BIG PART OF WHAT ICWA DOES, IT
SAYS THAT THE TRIBAL COURTS HAVE JURISDICTION OVER CERTAIN
TYPES OF FAMILY LAW MATTERS INVOLVING THE WELFARE OF
CHILDREN WHO ARE EITHER ENROLLED OR COULD BE ENROLLED
IN TRIBES IN THE U.S. SO, THE BEST ANALOGY I CAN
COME UP WITH RIGHT NOW IS IF WE ACKNOWLEDGE, AND OUR
GOVERNMENT DOES, THE SUPREME COURT DOES, THAT THE TRIBAL
GOVERNMENTS REPRESENT NATIONS OF THEIR OWN, IMAGINE IF WE
SAID TO BRAZIL, WE ARE GOING TO ADOPT YOUR KIDS AND YOU
CAN’T STOP US. AND IN ADDITION TO THAT, TO
THE RACISM CHARGES, WE ARE GOING TO STAY TO BRAZIL, YOU
DON’T GET TO DECIDE WHICH OF YOUR PEOPLE LIVING IN YOUR
COUNTRY OR WHICH PEOPLE ASSOCIATED WITH YOUR COUNTRY
GET CITIZENSHIP. THINK OF BRAZIL. BRAZIL HAS INDIGENOUS
INDIVIDUALS, FOLKS DESCENDING FROM INDIGENOUS POPULATIONS,
THEY HAVE FORMER AFRICAN SLAVES, EUROPEANS AND ALL OF
THESE PEOPLE ARE DEFINED BY BRAZIL AS BRAZILIANS. IT IS SAME SORT OF SITUATION
WITH OUR TRIBAL COMMUNITIES. THEY GET TO SAY WHO IS A
CITIZEN OF THEIR TRIBE, WHO IS A MEMBER OF THEIR TRIBE AND
WHEN THE ADOPTION OR FOSTER PLACEMENT OF A CHILD WHO
BELONGS TO THAT TRIBE IS AT ISSUE, THEY SHOULD GET TO MAKE
THE DECISION UNDER ICWA, THEY SHOULD GET TO MAKE THE
DECISION WHERE THE PLACEMENT HAPPENS, WHAT PRIORITIES THEY
WANT TO ASSERT. AND ALL OF THIS, AS YOU
MENTIONED, IS DESIGNED TO PREVENT THE KIND OF THINGS
THAT HAPPENED EARLY IN THE 20TH CENTURY, NOT THAT MANY
YEARS AGO, WHERE NATIVE AMERICAN CHILDREN WERE
FORCIBLY REMOVED FROM FAMILIES, TAKEN INTO BOARDING
SCHOOLS, FORCIBLY CONVERTED TO CATHOLICISM, IN MANY CASES. WHAT IS INTERESTING HERE IS
THAT ONE OF THE MAJOR PLAYERS IN THE ANTI-ICWA SUITS ARE
GROUPS INVOLVED IN EVANGELICAL CHRISTIAN ADOPTION AGENCIES
WHOSE STATED GOALS INCLUDE CONVERSION OF CHILDREN TO
THEIR RELIGION. I THINK THAT THE NATIVE
COMMUNITIES ARE CORRECT TO BE CONCERNED ABOUT THIS. THE OTHER THING THAT IS AT
PLAY, THOUGH, IS IF THE COURTS TAKE DOWN ICWA, WHAT IS TO
PREVENT THEM FROM TAKING DOWN OTHER ELEMENTS OF TRIBAL
SOVEREIGNTY WHICH ARE SO IMPORTANT TO NEW MEXICO AND TO
THE 11% OF NEW MEXICANS WHO ARE NATIVE AMERICAN.>>SWING TO JUSTINE FOX-YOUNG
ON THAT SAME QUESTION. HAS THIS GONE TOO FAR?>>I THINK SOPHIE IS TOTALLY
RIGHT ON THE LAW AND ON THE CONTEXT THAT ICWA WAS BORN OUT
OF AND IT IS A COMPLICATED LEGAL ISSUE, BUT IT IS
COMPLICATED ISSUE ON THE GROUND. TO SAY HAS IT GONE TOO FAR, I
THINK FOR PRACTICAL PURPOSES IT DID GO FAR. HERE ARE A COUPLE OF EXAMPLES
OF WHY I THINK THAT IS TRUE. ONE, WHEN YOU LOOK AT THE
PREFERENTIAL SORT OF TRIANGLE THAT ICWA BUILDS, FIRST YOU
TRY TO KEEP THE CHILD WITH THEIR FAMILY, THEIR EXTENDED
FAMILY WITH THE TRIBE, NOT ANY OTHER TRIBE. IT HASN’T WORKED. IT DOESN’T MAKE SENSE AND YOU
LOOK AT THE CASE THAT WENT UP TO TENTH CIRCUIT, THE PARENTS,
NATURAL PARENTS OF THIS CHILD, FAMILY OF THE CHILD,
VOLUNTARILY TERMINATED PARENTAL RIGHTS. YOU KNOW. LIKED THIS FAMILY, WANTED THE
KID TO GO TO THIS FAMILY. YOU HAVE THE COURT SAYING,
WELL, THERE IS A NAVAJO FAMILY IN ALBUQUERQUE, LET’S TRY
THAT. AS A PRACTICAL MATTER, IT
DOESN’T WORK, IT DIDN’T WORK, THAT PLACEMENT DIDN’T WORK.>>IT IS A REAL EXAMPLE YOU
USED. THERE WAS A THOUGHT TO HAVE
THE CHILD COME TO NEW MEXICO FOR A FAMILY THAT DIDN’T WORK
OUT.>>THIS REPEATS ITSELF OVER
AND OVER. ONE OF THE REASONS WHY IS
BECAUSE THERE ARE NOT ENOUGH FOSTER FAMILIES IN NATIVE
COMMUNITIES SO THIS IS LIKE A DESIGN FAIL. WE HAVE KIDS GO WITH NONNATIVE
FOSTER FAMILIES, FORM AN ATTACHMENT, AND THEN, OF
COURSE, YOU HAVE HEART BREAKING CASE AFTER HEART
BREAKING CASE, WHERE WHAT ARE GOING TO DO WITH THESE KIDS? IT WENT TO TOO FAR BECAUSE WE
ARE RELYING ON A GREATER COMMUNITY OUTSIDE THE NATIVE
COMMUNITY TO CARE FOR THESE KIDS AND THEN WHEN IT COMES TO
THE QUESTION WHO THE PARENTS ACTUALLY ARE, THEN YOU HAVE
GOT A LAW THAT DOESN’T WORK. I AM ACTUALLY SURPRISED IT HAS
TAKEN 40 YEARS TO REACH THIS POINT WHERE WE ARE CONCERNED
WITH WHAT TO DO. I DON’T THINK IT IS AN ISSUE
OF RACE. SOPHIE IS RIGHT ON THE LAW. THERE IS NO QUESTION WE ARE
DEALING WITH SOVEREIGN NATIONS AND THE PROBLEM IS BECAUSE
ICWA WENT TOO FAR, WE ARE AT THE POINT NOW IT IS NOT ABLE
TO DO WHAT IT WAS DESIGNED TO DO TO PROTECT THESE KIDS, AND
ALL THESE OTHER ISSUES OF SOVEREIGNTY ARE IN JEOPARDY. SO, FOR PRACTICAL PURPOSES IT
IS VERY HEART BREAKING.>>THE IDEA OF STATES RIGHTS
HAS COME UP FROM TEXAS FOLKS IN THIS SITUATION, AND THE
IDEA THIS IS UNCONSTITUTIONAL, YOU KNOW. TOUCH ON THAT IF YOU WOULD,
THE IDEA IT SEEMS LIKE IT WOULD BE SNOWBALLING ROLLING
DOWNHILL AND GETTING BIGGER, THE IDEA OF STATES RIGHTS
HAVING A BIT MORE MOMENTUM.>>THE STATES RIGHTS, TENTH
AMENDMENTS, IS SOMETHING THAT HAS BEEN A RELATIVELY NEW ON
THE SCENE ARGUMENT THAT HAS BEEN USED BY FEDERALISTS FOR
FEDERALIST PURPOSES, CONSERVATIVE FOLKS. THAT IS GETTING MOMENTUM AND
ITS DAY IN THE SUN, THE IDEA THAT SOMEHOW THE FEDERAL LAW
TELLING THE STATE WHAT TO DO IS COMMANDEERING STATE AGENCY,
RIGHT, INSTEAD OF WHAT IS AN END RUN AROUND FEDERAL LAW. IT IS GATHERING MOMENTUM AND I
THINK IT IS SOMETHING TO KEEP AN EYE ON. IN THIS CONTEXT, RIGHT, IT IS
INTERESTING, THOUGH, THE PERSONS WHO ARE MOST LOOKING
TO PROTECT THE TRIBAL RIGHTS AND SOVEREIGNTY AND UPHOLD THE
SUPREME COURT’S ROLE IN PROTECTING TRIBAL NATIONS IS
JUSTICE GORSUCH, WHO FROM HIS TIME OUT HERE ON THE LEFT AND
–>>INTERESTING.>>AND HAS SHOWN THAT HE IS
WILLING TO KEEP THE COURT IN ITS ROLE OF PROTECTING TRIBAL
SOVEREIGNTY.>>JUSTINE MENTIONED THE
SITUATION IN TEXAS IN THIS, HOW ICWA — IT IS SORT OF LIKE
HOW YOU LOOK AT IT AT THIS POINT. YOU KNOW WHAT I MEAN. ALMOST LIKE A FRACTION, KIND
OF INTERESTING.>>I AM NOT GOING TO PRETEND
THAT I AM AN EXPERT IN THIS MATTER, BUT ONE THING I DO
KNOW IS PRESERVATION OF CULTURE AND THE REASON WHY
THIS IS SO COMPLICATED IS NOT ONLY BECAUSE OF THE SOVEREIGN
NATION WE ARE DEALING WITH, THE FEDERALLY REGISTERED
TRIBES, BUT I FIND IT VERY IRONIC, I WAS LOOKING AT A
CASE DOWN IN SOUTHERN CALIFORNIA FROM 2016 WHERE A
CHILD, A FAMILY OF THE CHOCTAW NATION, I MIGHT MISQUOTE THAT,
BUT ONE OF THE FEDERALLY RECOGNIZED TRIBES DECIDED TO
PULL A GIRL FROM HER FOSTER FAMILY AND SHE WAS ONLY 1.25%
OF THE BLOOD LINE OF THE NATIVE RESERVATION. THAT WAS ENOUGH TO PROVE THAT
SHE SHOULD HAVE BEEN PULLED FROM HER FOSTER HOME. I FOUND THAT SITUATION VERY
IRONIC IN THE IMPLEMENTATION OF ICWA, BECAUSE THERE ARE
SOME FEDERALLY-RECOGNIZED TRIBES THAT DON’T EVEN GIVE
MEDICAL BENEFITS, FINANCIAL BENEFITS OR FAMILY BENEFITS TO
FAMILIES THAT ARE EVEN 1/16 OR 1/25 OF THE BLOOD LINE AND SO
AGAIN, LIKE, ARE WE USING THE LAW IN ITS BEST INTENT
POSSIBLE? THAT IS QUESTION NO. 1? NO. 2, IF IT IS THE
PRESERVATION OF CULTURE, IS THE TRIBE ACTUALLY PROVING
THAT BY TAKING A CHILD AWAY FROM THEIR FOSTER FAMILY, DO
THEY HAVE THE RIGHT RESOURCES TO ACTUALLY TRAIN THEM ON THE
NATIVE LANGUAGE, THE NATIVE RELIGION, WHETHER IT BE
CHRISTIANITY OR NOT. IT IS A BIG QUESTION MARK ON
WHAT THE ACTUAL INTENT IS. AND, SO, I JUST FIND IT AS A
BIG CONTRADICTION AND YOU LOOK BACK, IF THEY ARE PULLED FROM
FOSTER HOMES, THE WORD FOSTER AND THE CONCEPT OF FOSTER
HOMES IS THERE ARE FOSTER HOME FOR A REASON. IT IS NOT ADOPTING. THOSE THAT HAVE BEEN ADOPTED,
SOME CASES THEY HAVE BEEN PULLED AND SOME CASES THEY
HAVEN’T BECAUSE OF THE LEGALITY BEHIND IT. I AM NOT AN EXPERT IN THIS
SUBJECT MATTER, I AM A BIG BELIEVER IN PRESERVATION OF
CULTURE, BUT ARE PEOPLE USING THE LOOPHOLES IN THE LAW TO
ACTUALLY BENEFIT THEIR FAMILIES. VERY MUCH POSSIBLE.>>INTERESTING POINTS.>>SOPHIE, TO FINISH UP THIS
SUBJECT, THE OTHER IDEA THAT IS INTERESTING OUT THERE IS
WHETHER FOSTER FAMILIES ARE EVEN NOTIFIED THAT THERE IS A
CHILD IS PLACED WITH THEM, THAT THE CHILD IS NATIVE
AMERICAN. DO YOU KNOW WHAT I MEAN? IT OPENS THE DOOR, IT CLOSED
THE DOOR AND ALLOWS PEOPLE TO WALK IN THE BACK DOOR TO MAKE
THE SITUATION DIFFICULT, IT SEEMS TO ME.>>I THINK THAT THIS IS
CERTAINLY AN AREA IN WHICH THE SYSTEM IS NOT PERFECT. OFTEN TRIBES ARE NOT NOTIFIED
THAT A CHILD IS BEING PLACED. THAT IT TAKES SOME WORK FOR
THEM TO FIGURE THAT OUT. IT SHOULDN’T BE A SITUATION
WHERE YOU’RE JUST KIND OF ABLE TO GET AWAY WITH IT, BECAUSE
NOBODY TOLD YOU. ULTIMATELY THE FOSTER PARENTS
AND FAMILY DOESN’T HAVE THE SAME RIGHTS AS NATURAL PARENTS
AND WE SORT OF HEARD A LITTLE OF THIS, YOU KNOW, YOU KNOW
WHEN YOU’RE FOSTERING THAT ADOPTION IS NOT A GIVEN. CERTAINLY I HAVE FRIENDS WHO
HAVE FOSTERED CHILDREN AND STRUGGLE WITH THAT. BUT, THAT SAID, WHEN YOU MAKE
A MOVE TOWARD ADOPTION YOU JUST HAVE TO BE AWARE THAT
THIS IS A POSSIBILITY AND THE U.S. PRESIDENT SAID SOMETHING
ABOUT NATIVE AMERICANS NOT TOO LONG AGO ABOUT HOW SO AND SO
DOESN’T LOOK NATIVE AMERICAN SO THEY SHOULDN’T BE
CONSIDERED INDIAN. YOU CAN’T DO IT BASED ON
APPEARANCE. THERE IS TOO MUCH COMPLEXITY
THERE.>>AND IT IS UP TO THE TRIBE.>>IT IS UP TO THE TRIBE TO
DECIDE, YES. THEY ARE A NATION.>>ABOUT A MINUTE LEFT, FINISH
WITH SERGE. GOT TO SWING DACA INTO THIS. OBVIOUSLY, WE HAVE GOT THINGS
GOING ON THIS WEEK AT THE SUPREME COURT ABOUT THIS. THIS WHOLE IDEA ABOUT DREAMERS
AND WHERE THIS IS ALL GOING TO END UP GOING, ALL INDICATIONS,
AT LEAST, THE PRESIDENT GETS WHAT HE WANTS OUT OF THIS FOR
SURE. WHAT DOES THIS SAY ABOUT US
AND HOW WE VIEW CHILDREN OVERALL IN THE U.S., HOW WE
MANAGE CHILDREN HERE AND WHO GETS TO GO WHERE AND UNDER
WHOSE HOUSEHOLD? YOU KNOW WHAT I MEAN? WE ARE IN THIS WEIRD FLUX
PERIOD, IT SEEMS TO ME.>>CERTAINLY, ALL OF THE DACA
RECIPIENTS, RIGHT, UNIVERSALLY PEOPLE CAN AGREE, THEY DIDN’T
DECIDE TO COME ON THEIR OWN VOLITION, THEY ARE AMERICAN
CHILDREN IN EVERYTHING EXCEPT FOR THE PASSPORT THEY CARRY
AND WE ARE SAYING THAT SORT OF POLITICAL GAME WE ARE GOING TO
SORT OF REMOVE ALL OF THE THINGS THAT THEY COULD BRING
TO OUR COUNTRY AND ALL OF THE RELIANCE THEY HAVE HAD AND ALL
THE FABRIC THE SOCIETY THAT WE HAVE CREATED WITH THESE FOLKS
AS PART OF IT, AND I THINK IT IS SHORT SIGHTED AND
EXCEEDINGLY ILL-ADVISED. I KNOW YOU’RE TRYING TO STOP
ME, I WANT TO SAY IN TERMS OF GOING BACK TO ICWA, BRIEFLY,
NATIVE CHILDREN ARE REMOVED FROM THEIR HOMES AT A
DISPROPORTIONATELY HIGH RATE AND IT IS A LIVE ISSUE, RIGHT? IT IS COMPLICATED AND FOR
EVERY STORY WE HEAR OF SOMETHING LIKE WE ARE HEARING
IN THE NEWS, RIGHT, THERE IS SOMEONE WHO WAS FOSTERED OUT
AND IS UPSET AND CUT OFF FROM THEIR TRADITIONAL CULTURE AND
TRIBAL ROOTS AND IT IS COMPLEX. WE HAVE A SPECIALIZED COURT WE
ARE JUST STARTING HERE IN ALBUQUERQUE TO ADDRESS PURELY
THESE ICWA QUESTIONS BECAUSE IT IS SO PREVALENT AND SUCH A
LIVE ISSUE AND SO CHALLENGING IT REQUIRES THAT.>>GOOD STUFF. WE ARE OUT OF TIME. TAKE A QUICK BREAK, RESET AND
BE BACK IN A MOMENT WITH YET ANOTHER PIECE IN THE VICTORIA
MARTIN’S MURDER CASE.

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