Correction: This story originally misidentified what state the Oneida Nation is based in. The story has been corrected.
An unfavorable ruling in a case pending before the U.S. Supreme Court would deal a “devastating blow” to the welfare of tribal children and the “basic foundations of federal Indian law,” Cherokee Nation Principal Chief Chuck Hoskin Jr. said Monday.
Hoskin’s comments came during a virtual news briefing regarding a case dealing with the Indian Child Welfare Act.
The law, enacted by Congress in 1978, gives Native Americans preference in adoptions of Native children.
Three states and seven individuals have challenged the federal law, claiming in part that it creates an illegal race-based federal child-custody system that states are required to implement for all Native American children who appear before their courts in child-custody proceedings.
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But tribal officials, in Supreme Court filings, called Texas’ race-based claims “inflammatory,” noting that no appellate court has accepted the state’s argument that ICWA is facially invalid as race discrimination.
“Simply, for the court to overturn ICWA in this case would be a devastating blow not just to the welfare of our children but to Congressional authority, legal precedent, and to the basic foundations of federal Indian law,” Hoskin said in comments delivered by another tribal official as Hoskin was traveling.
Brought by seven individuals and the states of Texas, Indiana and Louisiana, the case has drawn support on both sides, with conservative groups filing friend of the court briefs backing the three states and seven individuals, while over 500 tribal nations and groups that work under the law have lined up in support of the law.
In addition to the Cherokee Nation, the Navajo Nation, the Wisconsin-based Oneida Nation, the Washington-based Quinault Indian Nation and the California-based Morongo Band of Mission Indians are participants in the appeal.
Opponents of the law challenge whether Congress has the ability to enact laws governing state child-custody proceedings when the child is a Native American and whether the law violates equal-protection guarantees, among other issues.
The U.S. Supreme Court agreed on Feb. 28 to hear the various ICWA-related cases that have been consolidated for appeal purposes. In taking the case, the Supreme Court said it would hear oral arguments Nov. 9.
Asked whether this case involves something other than the welfare of children, Cherokee Nation Deputy Attorney General Chrissi Ross Nimmo said it did.
Nimmo said “outside forces” are using ICWA, a law designed to protect children and families, to “go after other things that tribes have that they see as commercially beneficial or money makers,” Nimmo said.
Challengers to the law have drawn support from conservative groups such as the Cato Institute and the Goldwater Institute, which push for limited government.
Hoskin, in his written comment delivered by Nimmo, said ICWA opponents are trying to “diminish the political nature of tribal citizenship” by saying the law is race-based.
“The U.S. constitution recognizes tribes as sovereign nations,” Hoskin said. “And courts have repeatedly recognized that tribal citizenship is a political classification.
“That may be an inconvenient fact for those who want to convince the court that ICWA violates the Constitution’s Equal Protection Clause, but neither the facts nor precedent are on their sides.
“Likewise, the claim that Congress does not have authority to enact ICWA (is) equally inconsistent with Congressional authority granted by the Constitution over matters concerning sovereign tribes.”
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