By SARAH ATWOOD
capital news service
LANSING — The US Supreme Court is considering a challenge to the Indian Child Welfare Act, and tribal communities across Michigan are concerned about their right to keep Native foster children in their tribe.
“I get calls almost every day from tribal members expressing concern about the status of the law and what will happen if it is repealed,” said Kathryn Fort, director of the Indian Law Clinic at Michigan State University.
The challenge of the Indian Child Welfare Act comes from Texas parents caring for two children who are part Navajo. According to the lawsuit, the non-native foster parents have custody of the older boy and are seeking custody of the younger girl. In addition to Texas, Louisiana and Indiana and two other foster parents joined the lawsuit.
As it stands, caseworkers placing local children in homes must first try to place them with immediate family members. If this is not possible, they will be placed with someone from the children’s tribe in accordance with the Indian Child Welfare Act Field Guide. The guide is intended to help caseworkers deal with Native children and is being produced by the Michigan Department of Health and Human Services.
According to Who Cares: A National Count of Foster Homes and their Families, as of 2020, there are 300 Native American/Alaskan children in the foster care system in Michigan. Stacey Tadgerson, a tribal liaison for the Michigan Department of Health and Human Services, said in a report that Michigan has the highest number of Native Americans east of the Mississippi River.
“The law was introduced to protect Indigenous children in foster care, who are a very vulnerable group,” Fort said. “Tribal communities believe that the best place for an Indigenous child is with their tribe.”
The Michigan Department of Health and Human Services agrees.
“The law serves the best interests of Native American children and their families by prioritizing safety, family housing and active family reunification efforts where removal has occurred,” wrote Bob Wheaton, the agency’s public information officer, in an email . “Tribal governments know what is best for their families and it is our intention to honor that.”
The Supreme Court heard arguments in the case Haaland against BrackeenNovember 9th. The verdict is expected before June 2023.
Michigan Attorney General Dana Nessel, along with 23 other states, filed a motion with the Supreme Court to dismiss the challenge.
The law’s opponents argue that the tribal preference for foster care is unconstitutional because it is based on race. But tribal members and advocates disagree.
“The law has never established race as a determining factor,” Fort said. “Instead, it is tribal sovereignty that gives them the authority to care for a Native American foster child.”
According to Jason Cross, a member of the Little River Band of the Ottawa Indians in Michigan and the Indian Child Welfare Act’s state executive for complacency and racial justice, there are many advantages to having a child live with someone from their tribe.
Cross notes that it is important for Native children to have extended family connections and carry on the traditions of the tribe.
“Lessons and stories are taught that teach children about tribal moral values and traditions,” he said in an email.
Michigan has its own shelters for Native American children, and it’s unclear what will happen to those statutes if the Indian Child Welfare Act is repealed, Fort said.
“It’s causing a lot of confusion, and indigenous communities feel their rights are being taken away,” Fort said.
If the law is found to be unconstitutional, it could allow other groups to challenge tribal communities’ sovereignty more since they would be labeled as a racial group rather than a political entity, Fort said. This is particularly problematic because not everyone who lives in a tribal community is racially aboriginal.
“Tribal sovereignty exists whether the Supreme Court recognizes it or not,” Fort said. “If the verdict is overturned, trust between the tribes and the U.S. government will be eroded.”