From the Magazine: Decades ago, Congress passed a law intended to keep native kids from being placed outside their tribes. Now, its future is in doubt.
Sally Tarnowski is a state district court judge in Duluth, Minn. She presides over Courtroom 3 on the fourth floor of the St. Louis County Courthouse, an imposing building offering views of Lake Superior. The Anishinaabe, on whose ancestral lands Duluth sits, call the lake Gitchi-Gami — Great Sea. Today, the courtroom has an unusual set-up. The judge is not up at the dais.
“I just really, really wanted — honestly, and pardon my language, I think this is honestly a bunch of bulls—!” shouts the mom, who looks about 19.“We see all the good work that you’re doing,” Michelle Pederson, a social worker with the ICWA unit at the St. Louis County Public Health and Human Services Department, says to the mother, referring to everyone else seated around the table.
If there is anyone who knows how ICWA is supposed to work, it is Tarnowski and the folks who work in Courtroom 3 on behalf of tribes, parents and kids. One of the first cases called after lunch is that of Jered, a 23-year-old father seeking custody of his toddler son. I had heard about Jered’s case weeks earlier and arranged to meet him beforehand just outside the courtroom. The hallway is filled with people hunched over manila folders and lawyers lugging briefcases.
Since then, Jered has done everything the court has asked of him: alcohol treatment, a domestic violence program and something called Positive Indian Parenting, which offers culturally relevant instruction. He also had to check in regularly with his parole officer, and social services — both county and tribal — showed up randomly to check on his progress. “You get out of it what you put into it,” he says.
The group is organized by Sandy White Hawk, who is Sicangu Lakota and the elder-in-residence at the ICWA Law Center in Minneapolis. She works as an Indian child welfare consultant there and does ICWA trainings across the country. She also runs a nonprofit called First Nations Repatriation Institute, whose mission is to advocate for native adoptees and craft adoption education and policy.
Another way that ICWA differs from conventional child welfare laws is that it mandates “active efforts” to keep children with their families or tribe. In most regular child protection cases, social-service workers are obligated to provide “reasonable efforts” to help parents and children reunify, such as offering lists of treatment facilities, therapists, affordable-housing agencies or other resources that could help parents get their lives back on track.
“I see historical trauma in my courtroom,” Tarnowski told me on the phone recently, referring to the higher rates of depression, suicide and substance abuse among Native Americans. “When we started, we knew we might not see any real change for a generation,” she said. “But we knew we needed to effect change.”
Goldwater’s arguments found a sympathetic audience in Judge O’Connor in Fort Worth. The case, heard in August 2018, centered on a 10-month old boy named A.L.M., whom Texas child protective services placed with Chad and Jennifer Brackeen, who are white and have two older children. After more than a year, the boy’s parents agreed to give up their parental rights so that the Brackeens could adopt him.
Despite the Indian Child Welfare Act’s broad support, it has always had critics. Today, one of its most vocal opponents is the Goldwater Institute, a conservative think tank based in Arizona. The problem with ICWA, Fletcher and other tribal experts maintain, is not the law itself but its uneven implementation and lax enforcement, which led to a U.S. Supreme Court decision that some experts say seriously damaged ICWA’s credibility.
Jered and his son at the community center at the Fond du Lac Reservation. Jered and I are waiting outside Courtroom 3 for his case to be called. Just as we’re about to go in for the hearing, a small young woman with bobbed hair appears. Jered is floored. It is C’s mother. She has a tiny hat and gloves for C, which she hands to him. Her lawyer is also there. At some point, she’s served with the court’s petition to transfer sole custody of C from her to Jered. She stays in the hallway to read it.
The biggest thing that the court gives the families, Port Wright says, is the sense that someone is on their side. “This may be the first time that some of these people have ever had someone care about what happens to them without wanting something in return,” she says. And many of the parents coming through the court don’t know how to be parents because they were never parented themselves.
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