The ICWA Fight: What Sovereignty Means


Unidentified Alaska Native coastal village in Alaska

Unidentified Alaska Native coastal village in Alaska

ICWA – the Indian Child Welfare Act – nearly killed WC.

It’s true. On a flight back from a village on the north side of Seward Peninsula, in western Alaska, WC’s pilot in the chartered Cessna 185 encountered fog. We landed on the beach along Kotzebue Sound, not far from the entrance to Eschscholtz Bay. At about 35-40 mph, in dense fog, we found the only large log on the shores of Kotzebue Sound.1 The log tore off the aircraft’s landing gear. One sudden, noisy, violent jolt. The pilot, maybe reflexively, pulled the stick back, bringing the nose up into the air, so instead of plowing nose-first into the ground, we did a series of three quick ground loops. The whole business took about ten seconds. It seemed a lot longer. Neither the pilot or I was hurt. But the prop was bent, the tail had some damage and, of course, the wheels were 150 feet away from the hull. As if to mock us, not five minutes later the fog lifted and, ten minutes after that, we could see all the way to the tower in Kotzebue, our destination.

WC had been in that traditional Inupiaq coastal village because of ICWA. WC was the court-appointed guardian ad litem for two minor Alaska Native children in a termination of parental rights case. In the middle of that case, the Indian Child Welfare Act was signed into law. ICWA set new rules for placement and adoption of Indian and Native children. None of the details had been sorted out. The law required placement with the children’s tribe. What was a “tribe” in Alaska? Did a family in another Inupiaq community qualify? Or was a “tribe” in the context of Alaska Natives mean just one village?

The Inupiaq peoples are pretty tightly knit. WC had gone to the village via Wien Airlines, to talk to the potential adoptive family to make certain those connections didn’t extend to the kids’ natural family. The kids’ former situation had been very bad. As guardian ad litem, my concern was the best interests of the child and the court had determined those best interests meant absolutely no further contact with their natural mother and her extended family. WC’s preference would have been to get the kids into another state, out of Alaska entirely, but ICWA was pretty clear that couldn’t happen. Wien cancelled WC’s return flight to Nome. So WC chartered the flight to Kotzebue.

The candidate placement parents were wonderful (the placement went very well) and eventually WC represented the placement parents in an adoption proceeding. The girls grew into lovely adults, mostly unaffected by all that legal angst. For many years, they sent WC hand-drawn Christmas cards. Happy ending there. Easily worth a little unscheduled adventure.

Less than an hour after crashing, WC was in a helicopter headed to Kotzebue, arriving in time to make his connection back to Fairbanks. Happy  ending there, too.

The National Transportation Safety Board somehow never heard about the crash. WC’s pilot retired in 2002 with a perfect safety record. Happy ending there.

Wien Airlines, whose cancelled flight led to WC’s little adventure, fell victim to its lender, Household Finance, airline deregulation and a corporate raider. It was shut down in 1984. It was America’s second oldest airline at the time. Not a happy ending.2

But what about ICWA? Viewed one way, it forces kids to stay in the sometimes miserable, deplorable and unsafe conditions that led to the state removing them from the custody of their parents. Viewed another way, ICWA has stopped the destruction of the kids’ cultural heritage. Congress has decided to err on the side of protecting the culture. That’s what Congress does: make the hard choices. And it is a hard choice. The Alaska Court System and the tribes have worked out a pretty good accommodation to ICWA. It’s settled law, mostly. Or was.

All of this comes to mind because ICWA is in the news right now. Back in October, U.S. District Judge Reed O’Connor, in Texas, found ICWA was unconstitutional. For two reasons. He ruled ICWA illegally gave Alaska Native and  American Indian families preferential treatment in adoption proceedings for Native American children based on race, in violation of the Fifth Amendment’s equal protection guarantee. And he found it violated the Tenth Amendment, by abrogating to the federal government rights properly belonging to the individual states.

WC thinks Judge O’Connor is wrong on both counts. ICWA is about sovereignty. Native Americans’ tribal organizations are nations, sovereignties, and have been since Europeans first started stealing their land. ICWA isn’t based on race; it’s based on sovereignty. ICWA is what sovereignty means. Nor is there a Tenth Amendment violation. The U.S. Constitution gives Congress, not the individual states, power over Native Americans. The federal government’s power over Indian affairs is extensive and preemptive of state power, and has been since a series of Cherokee Indian cases in the 1830s.3

WC was pleased to see that Senator Murkowski (R, Who Can Tell) and Rep. Young (R, Senility) joined an amicus curiae brief in support of ICWA. And unsurprised that Senator Sullivan (R, Koch Bros.) found an excuse not to do so.

WC hopes that the Fifth Circuit Court of Appeals agrees with WC: that ICWA is firmly within Congress’s authority and should be left alone.

 


  1. Note to non-Alaskans: there are no trees anywhere near Kotzebue Sound. None. The very few pieces of driftwood in the Sound wash down the Noatak River from the south face of the westerly Brooks Range. 
  2. Karma happens. Household Finance is gone, too. 
  3.  Article I, Section 8 of the Constitution states that “Congress shall have the power to regulate Commerce with foreign nations and among the several states, and with the Indian tribes” 
Advertisements

One thought on “The ICWA Fight: What Sovereignty Means

  1. Nice piece W.C. After many years of doing CINA and ICWA cases I have concluded that Congress made a wise choice. CINA cases can best be described as dysfunctional parents meet dysfunctional bureaucracy. It usually don’t end well for anyone. I only wish tribes were more proactive in setting up their own courts and removing cases from the State of Alaska Court System and the clutches of OCS. Tribes usually do a better job.

Comments are closed.