Spilyay Tymoo, Warm Springs, Oregon
From W.S. Corrections
Would you like to make a
difference in your community?
Have you ever wondered what
happens in a jail facility?
It is more than just accept-
ing prisoners who have commit-
ted a crime or who have vio-
lated their probation.
A Corrections Officer posi-
tion will provide training and
skill attainment to be success-
ful in many areas of the crimi-
nal justice system. The work
of a corrections officer re-
quires excellent communication
skills, clerical skills, and atten-
tion to detail.
If you would like more in-
formation on how you could
make a difference in your com-
munity, contact me at 541-553-
1171. Or send an email:
crystal.greene@wstribes.org
The jail facility is still closed
due to necessary equipment
that is in the process, with the
BIA, of being repaired. Mean-
while, we are able to provide
transport and court security ser-
vices as necessary.
There is not yet a re-open
date, unfortunately. In the near
future we will also be looking
to fill a 911 dispatch position
in our office.
Cr ystal Greene, War m
Springs Corrections Lieuten-
ant.
Jackson Sundown by artist Ellen Taylor, on display at
the Museum at Warm Springs.
April 21, 2021
Page 7
Court ruling mostly in favor of ICWA
The United States Fifth Circuit
Court of Appeals this month ruled
that Congress has the authority to
enact the Indian Child Welfare Act.
The court did, however, strike
down a portion of the law that in
some instances gives preference to
Indigenous families in the adoption
of Native American children.
The lawsuit—B r a cke e n v.
Haaland—was brought by Texas,
Indiana, Louisiana and individual
plaintiffs. They allege that the In-
dian Child Welfare Act—ICWA—
is unconstitutional for discriminat-
ing against non-Native families in
the placement of Native children.
Congress passed the Indian
Child Welfare Act of 1978 in re-
sponse to Native children being
removed from their homes and
placed with non-Native families.
Research by the Native Indian
Child Welfare Association found
that between 25 percent and 35
percent of all Native children were
forcibly removed from their home
by state child welfare and private
adoption agencies. Of them, 85
percent were placed with non-Na-
tive families, even when fit and
willing relatives were available.
ICWA is a safeguard aimed at pre-
venting such a crisis from occur-
ring by enabling tribes and fami-
lies to be involved in child welfare
cases.
This month the 325-page opin-
ion document penned by Judge
James Dennis and Judge Stuart
Duncan included a summary of
majority agreements among the 16-
judge court, and several instances
of a lack of consensus, which de-
faults to former precedent.
“The main takeaways are: basi-
cally the court did decide that at
least one plaintiff has standing to
bring this claim,” said Mary
Kathryn Nagle, a Cherokee Na-
tion citizen and partner with the
law firm Pipestem and Nagle,
which specializes in federal Indian
law.
“The court basically denied, or
didn’t reach full agreement, on
most of the constitutional chal-
lenges. So, as a result of this on-
going opinion, the majority of
ICWA remains constitutional.”
Where it gets messy, Nagle said,
is that the majority of judges ruled
that certain provisions of the In-
dian Child Welfare Act violate the
anti-commandeering doctrine,
which says that the federal gov-
ernment cannot require states or
state officials to adopt or enforce
federal law.
In one example, a majority of
judges found that ICWA’s “active
efforts” clause—which requires
prospective foster parents of a
Native child prove that active ef-
forts have been made to remediate
or rehabilitate the biological par-
ent and prevent the breakup of
the Native American family—“un-
constitutionally commandeer state
actors,” given its need for expert
witnesses and recordkeeping.
The Protect ICWA Campaign,
a coalition comprised of the Na-
tional Indian Child Welfare Asso-
ciation (NICWA), National Con-
gress of American Indians
(NCAI), Association on American
Affairs (AAIA), and the Native
American Rights Fund (NARF), is-
sued a statement expressing both
pleasure and concern with the
case’s decision.
“While the Protect ICWA Cam-
paign is pleased to see that the
court recognized that ICWA gen-
erally is within Congress’s author-
ity, we are deeply concerned that
aspects of this opinion misunder-
stand the unique relationship be-
tween the United States and tribal
nations,” the group wrote in a state-
ment.
In 2018, a federal district court
in Texas ruled that ICWA violates
the U.S. Constitution. Last year, in
response to appeals brought by the
federal government and tribal na-
tions, a three-judge panel from the
5th Circuit reversed that decision,
reaffirming the constitutionality of
ICWA. Last week, the case was
heard en banc review, or by an en-
tire court.
Moving forward, Nagle said she
anticipates plaintiffs will appeal last
week’s decision, sending the case to
the U.S. Supreme Court to make a
judgement on ICWA’s constitution-
ality. The “real battlefield”—in
Nagle’s opinion— will be on
whether or not it’s constitutional for
ICWA to give preference in place-
ment of Native children with Na-
tive families or communities, as is
currently allowed by law.
“Obviously, ICWA was not about
keeping children in homes that
aren’t safe or where they’re abused,
that’s not at all what happens here,”
Nagle said.
“But I think it’s true for all chil-
dren, if they can stay with a lov-
ing family member, that’s way bet-
ter than going to a stranger. But
the problem is here, we have
strangers who want Indian children
and they’re making an argument
that they’re entitled to have Indian
babies, and that it violates their
constitutional rights if they can’t
be a preferred placement for an
Indian child. And that’s pretty lu-
dicrous.”