By SARAH ATWOOD
Capital News Service
LANSING – The U.S. Supreme Court is hearing a challenge to the Indian Child Welfare Act, and tribal communities across Michigan are worried about their right to keep Native foster children within their tribe.
“I get calls from tribal members almost every day expressing their concern about the status of the act, and what happens if it’s overturned,” said Kathryn Fort,the director of the Indian Law Clinic at Michigan State University.
The challenge to the Indian Child Welfare Act comes from Texas parents who are 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 pursuing custody of the younger girl.
In addition to Texas, Louisiana and Indiana joined the lawsuit, as well as two other foster parent couples.
As it stands, caseworkers placing Native children in homes must first try to place them with immediate family members.
If that is not possible, they are placed with someone from the children’s tribe, according to the Indian Child Welfare Act Field Guide. The guide is meant to assist caseworkers handling Native children and is produced by the state Department of Health and Human Services.
According to “Who Cares: A National Count of Foster Homes and their Families,” as of 2020, there were 300 Native American/Alaskan children in the foster care system in Michigan.
Stacey Tadgerson, a tribal liaison for Health and Human Services, stated in a report that Michigan has the highest number of Native people east of the Mississippi.
“The act was put into place to protect Native children in foster care, who are a very vulnerable group,” Fort said. “Tribal communities believe that the best place for a Native child is with their tribe.”
The state agency agrees.
“The act serves the best interest of Native American children and their families by prioritizing safety, family placement and active efforts to reunify families when a removal has occurred,” Bob Wheaton, public information officer for the agency, wrote 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 on the case, Haaland v. Brackeen, on Nov. 9. The ruling is expected before June 2023.
Attorney General Dana Nessel joined 23 other states in filing a request to the Supreme Court to reject the challenge.
Challengers to the act argue that the tribal preference for foster child placement is unconstitutional because it is based on race.
But tribal members and advocates disagree.
“The law has never specified race as being the deciding factor,” Fort said. “Instead, it’s tribal sovereignty that gives them the authority to care for a Native foster child.”
There are a lot of benefits that come with children staying with someone in their tribe, according to Jason Cross, a member of the Little River Band of Ottawa Indians in Michigan and the state manager for Indian Child Welfare Act compliance and race equity.
Cross notes that it is important for Native children to have connections with extended family and continue the traditions of the tribe.
“Lessons and stories are taught that teach children moral values and traditions of the tribe,” he said in an email.
Michigan has its own protections for Native children, and it’s unclear what will happen to these statutes if the federal law is struck down, according to Fort.
“It’s causing a lot of confusion, and tribal communities feel as if rights are being taken away from them,” Fort said.
If the act is found unconstitutional, this could enable other groups to question more of tribal communities’ sovereignty because they would be designated as a racial group, not a political entity, Fort said. This is especially problematic because not everyone who lives in a tribal community is racially Native.
“Tribal sovereignty exists whether or not the Supreme Court recognizes it,” Fort said. “If the ruling is overturned, the trust between tribes and the U.S. government will be eroded.”
Editors note: This story was updated Dec. 1, 2022, to correct the title of Jason Cross