Indian Child Welfare Act struck down, Alaska evaluates impact

Image Source: Pixabay / MGN
Image Source: Pixabay / MGN(KALB)
Published: Oct. 8, 2018 at 1:14 PM AKDT
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A federal judge struck down a 40-year-old child welfare law as unconstitutional. The law was designed to stop the separation of American Indian and Alaska Native children from their families and tribes.

Now, the state is expecting the decision to strike down the Indian Child Welfare Act (ICWA) to be appealed, and is still evaluating exactly “what impact the court’s decision would have on Alaska and Alaska law.”

The Bureau of Indian Affairs, Native groups from across the country, and the Alaska Department of Law have all come out strongly against the decision made by Judge Reed O’Connor in Texas on Friday.

"This egregious decision ignores the direct federal government-to-government relationship and decades upon decades of precedent that have upheld tribal sovereignty and the rights of Indian children and families," read a statement by Native groups, including the Alaska Federation of Natives.

"While this disturbing ruling is a pivotal moment for Indian Country, we vehemently reject any opinion that separates Native children from their families and will continue to fight to uphold ICWA and tribal sovereignty," it stated.

In a statement, Gov. Bill Walker wrote that "there is nothing more important to Alaskans than the well-being of our children. Lt. Gov. Byron Mallott and I continue to stand with Alaska tribes in supporting the Indian Child Welfare Act."

“We are disappointed that the Texas district court failed to uphold the Indian Child Welfare Act. With 229 federally recognized Tribes in Alaska, the State has an important interest in ICWA and its impacts on Alaska Native children,” wrote Cori Mills, senior assistant attorney general with the Alaska Department of Law. “At this point, the court has not issued the final judgment, which will have to occur before the decision would actually go into effect.”

Mills wrote that the she expected the decision to be appealed and that a request would likely be made to put the decision on hold until an appellate court made a ruling.

In the case of Brackeen v. Zinke, Alaska signed onto an amicus brief with six other states in support of ICWA writing that separating children from Native homes “is associated with increased risk of suicide, substance use, and depression among American Indians and Alaska Natives.”

The amicus brief argued that ICWA isn’t unconstitutional, as it treated tribal membership as a political membership rather than one based on race.

Judge O’Connor ruled otherwise in a case centered on the adoption of a Native American child in Texas.

, Chad and Jennifer Brackeen sued last October for the right to adopt a Native American toddler. A state court denied their petition as ICWA gave preference for the child to be adopted by a family member, other member of the child’s tribe, or other Native American families.

Texas Attorney General Ken Paxton argued that ICWA unlawfully “elevates a child’s race over their best interest.”

“For nearly forty years, child advocacy organizations across the United States have considered the Indian Child Welfare Act to be the gold standard of child welfare policy,” wrote Tara Sweeney, the assistant secretary for Indian Affairs at the Interior Department and a former co-chair of of the Alaska Federation of Natives. “We reiterate our support for ICWA’s goals of ensuring the safety of Indian children, maintaining Indian families, and promoting tribal sovereignty.”

ICWA was passed in 1978 by the U.S. Congress, aiming to counter the separation of American Indian and Alaska Native children and encourage fostering and adoptions within Native extended families and tribes.

According to the National Indian Child Welfare Association, “Research found that 25%–35% of all Native children were being removed; of these, 85% were placed outside of their families and communities—even when fit and willing relatives were available.”

In the intervening years, the Alaska Department of Health and Social Services and the Office of Children’s Services has worked to “build federal ICWA mandates into all levels of OCE Child Welfare.”

The building of those mandates though has experienced some difficulties, in 2015, Gov. Bill Walker issued emergency regulations designed to make Native adoptions easier, especially in remote areas.

At the time, Commissioner Val Davidson of the Department of Health and Social Services said that “Alaska native children right now make up about 20 percent of our populations. But over 60 percent of the children in out-of-home placements in Alaska right now are Alaska native or American Indian.”

In 2017, on the opening day of the Alaska Federation of Natives annual convention,