BEMIDJI, Minn. - Some Bemidji-area American Indian leaders decried a recent Texas court ruling that could have national implications.

A federal judge ruled last week that the Indian Child Welfare Act is unconstitutional because it gives preferential treatment to American Indians and therefore violates the equal protection provision in the Fifth Amendment. The judge, U.S. District Judge Reed O'Connor, also found that the act violated a piece of the 10th Amendment that prevents the federal government from asking states to modify their laws.

WDAY logo
listen live
watch live

"We refuse to go back to the dark days before the enactment of the Indian Child Welfare Act when our children were forcibly removed from their families and their communities by state courts and state agencies without recourse," Darrell Seki, Sr., chairman of Red Lake Nation, wrote in a statement to Bemidji-area media on Tuesday.

"And the Red Lake Nation supports all efforts to have the recent wrongly decided Texas court decision reversed."

In a nutshell: the Indian Child Welfare Act asks states to place adopted or fostered American Indian children with, in order, other family members, a family in their tribe or another American Indian family before making them available for adoption by a family from the public at large. Enacted in 1978, "ICWA" was drafted amid concerns that contemporary adoption policies removed a disproportionate number of American Indian children from their tribes and cultures.

A 1977 report to the Senate estimated that American Indian children in Minnesota were removed from their homes and put in adoptive or foster care 520 percent more often than non-American Indian children.

"Indian nations, their greatest asset is their future, which is their children," said Nicky Michael, an indigenous studies professor at Bemidji State University and member of the Lenape, Delaware Tribe of Indians in Bartlesville, Okla. "There's a whole generation of what we call 'pre-ICWA' kids that don't know who their tribes are and don't know who their original families are...Even those children who had good adoption placements, they feel a lack of connection to something, oftentimes, until they find their tribe or their family. Even if they know they're native, they don't know anything about it and that causes a lot of anxiety and hurt as those children grow up."

The Texas ruling could raise broader questions of tribal sovereignty - a crucial concept for American Indians. O'Connor ruled that the act was based on race rather than political affiliation and citizenship to a tribe.

"And that's the problem," Michael said, echoing Native American Rights Attorney Dan Lewerenz, who compared American Indian adoptions to international ones in an interview with The Washington Post.

"This is a nation-to-nation relationship," Michael said.

Defendants in the Texas case have indicated they intend to appeal O'Connor's ruling, which could ultimately bring it before the U.S. Supreme Court. Michael said there's a "high" chance the Indian Child Welfare Act will be overturned there.

"That's when we stand to lose ICWA altogether," she said.