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NATIVEWELFARE

Jered, a member of the Fond du Lac Band of Lake Superior Chippewa, with his son at his house on the Fond du Lac Reservation in Minnesota. 

Sally Tarnowski is a state district court judge in Duluth, Minnesota. 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 setup. The judge is not up at the dais. Instead, she sits at a table along with a team of social workers, lawyers and guardians ad litem, as well as the parties being represented. Small bags of tobacco, traditional Anishinaabe medicine, are in abalone shells nearby, free for people to take. In the middle of the table are some sage and sweetgrass—also Anishinaabe medicines, for purification and healing.

All of the cases Tarnowski hears on this cold January day fall under the Indian Child Welfare Act, a 41-year-old federal law that governs adoption and child protective cases for members of federally recognized tribes as well as their children. When a child needs to be placed in foster care or adopted, the law gives preference to placement with family or other tribal members. And it makes the tribes a party in the cases. Although the law is federal, family courts are run by states.

The dedicated ICWA court in Duluth, which has been around since 2015, grew out of an effort by Tarnowski and Brenda “Bree” Bussey—the director of the Center for Regional and Tribal Child Welfare Studies at the University of Minnesota Duluth, who is Anishinaabe and Mohawk—to improve the process for these cases. They formed a collaborative with lawyers, tribal representatives, social-service workers and tribal child welfare experts. The group came up with several innovations, such as consolidating cases in one courtroom, scheduling cases so tribal members from distant reservations could attend, and having everyone sit at the same table.

The morning I visit, Courtroom 3 is a procession of parents and kids who have child protection cases. They sit at the table across from Tarnowski, who is all business. She wears a traditional black judge’s robe, along with three-inch stiletto heels. A pair of reading glasses and short platinum hair frame a serious expression.

The purpose of most of the hearings is to check how parents are progressing with their plan—a set of conditions that must be met before they can be reunited with their children. Stable housing, sobriety, steady employment, completion of treatment, therapy and parenting classes are frequent requirements. Tarnowski also inquires after the children’s progress.

Everyone is encouraged to speak. She issues various prescriptions, such as reminding a father that he needs to sleep at home at night, rather than at his girlfriend’s house, in order to be there and set a good example for his teenage daughters.

In another case, she orders the children to remain in foster care and for their visits with their parents to be supervised. Addressing the parents, Tarnowski says, “There have been enough concerns going on in the home and with the children that social services, the guardian and the tribe are all concerned enough to be telling me that we need to go back to supervised visitation, which is what we’re going to do.”

She later adds, “So I’m telling you this because I want to emphasize to you how important it is going to be for you to get the services that you need and work on what’s happening when you have unsupervised visits, because that’s where it’s kind of going haywire here.”

Tarnowski reminds the couple that if there are resources that they need to succeed, the assembled team of social workers and lawyers will work on getting those for them. “Anything that you can think of that you need at this point?”

“I just really, really wanted—honestly, and pardon my language, I think this is honestly a bunch of [expletive]!” shouts the mom, who looks about 19.

Tarnowski remains calm. “I won’t tolerate that,” she says.

“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. “But we’ve got to slow it down for a while and look at what exactly else is needed to make sure that all the kids feel safe, that they all feel heard, they all feel loved, they all feel like they’re going to be safe in the home.”

The mother is deeply unhappy and protests the decision again. Tarnowski says, “We want to err on the side of making sure [the kids are] safe,” and orders another hearing in a month.

Presiding over Courtroom 3 gives Tarnowski a unique perspective on the Indian Child Welfare Act. There are only a handful of courts like this in the country. They seek to ensure the law lives up to its purpose: to reverse the decades-long practice of removing Indian children from their parents and placing them in nonnative homes.

In many cases, such placements also severed children from their extended families and any knowledge of their heritage and cultural practices, which in turn further decimated tribes. But the law’s future is now uncertain because of the actions of another judge 1,000 miles from here, in Texas. In October, U.S. District Judge Reed O’Connor ruled that ICWA was racially discriminatory and therefore unconstitutional. An appeals court heard arguments on March 13.

Since the law passed, dozens of child welfare organizations, legal experts and tribal governments have praised it. But there has been a vocal minority of opponents who point to a few high-profile instances where native children were returned to a tribe, despite having lived with nonnative foster parents who wished to adopt them. There have also been cases where children who have been returned to native families subsequently died in their care. ICWA’s defenders point out that tragic cases happen with all races. The problem, they argue, is not the law, but that it is not always followed.

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. (To protect the child’s privacy, I am not using Jered’s last name.)

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. Jered texts me that he’s here, wearing a “nice shirt, tucked in.” When I look up, I spot a man with thick black hair, a big smile and a boyish face.

Jered has come straight from his home on the Fond du Lac Reservation, the base of the Fond du Lac Band of Lake Superior Chippewa, in which he is an enrolled member. It’s about a half-hour drive, and Jered tells me he will need to leave when the hearing ends to get to his job at the Black Bear Casino Resort, where he’s a food and beverage supervisor.

His son, whom I’ll refer to as C, is nearly 2 years old. According to court documents, C was on social services’ radar even before he was born after his mother tested positive for using marijuana when she was pregnant with him. Once C was born, she had trouble coping and fought with Jered, who struggled with alcohol use. After a party at his house got out of hand, Jered was arrested. He lost his job. He began treatment, and social services continued to work with the family. By all accounts, C was safe and well cared for. But a few months later, Jered relapsed, and while C was home, he hit C’s mother with his hands, threw her on the ground and head-butted her. He was arrested and charged with domestic assault.

Social services temporarily placed C in foster care with Jered’s aunt. Jered told me that losing C was terrible. “When I got home, it was so quiet,” he says. “I could hear the refrigerator running, the clock ticking. It was so quiet, it was loud.”

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.

Jered made enough improvements that the court, with the support of the tribe, has allowed C to live with him full time since May 2018. Social services continued to monitor him and report to the court. He checked in regularly with the court as well. In December, the court petitioned for him to get full custody, because C’s mother hadn’t completed her reunification plan. The day we meet, Jered is optimistic about his chances, especially since the boy’s mother has not contested it. He tells me he has another month or two of probation, and a fine to pay, and then he’ll be done. “When it started it was just this really massive weight on my chest,” he says, “and being able to say I’m almost done with everything is a huge relief.”

Jered might not have seen his son again before the Indian Child Welfare Act.

For decades beginning in the 1870s, native children as young as 5 were forcibly removed from their families and sent to authoritarian boarding schools in an effort to “kill the Indian, save the man.”

Tribal law expert Matthew Fletcher, who is Anishinaabe, explains that boarding schools fell out of favor beginning in the 1930s, but whites still viewed native methods of child rearing, as well as concepts of family and community, with deep suspicion, and children were removed from their families for nearly any reason. It became standard policy, Fletcher says, to adopt them out to white families, all with an eye toward white acculturation. Often, they were never heard from again. “The wholesale separation of Indian children from their families is perhaps the most tragic and destructive aspect of American Indian life today,” Congress declared in 1978. It passed ICWA after hearing hundreds of hours of testimony by tribal leaders and afflicted family members. By then, according to the National Indian Child Welfare Association, an estimated 25 to 35 percent of all native children had been removed from their families. Of those, 85 percent were placed in white homes, even, NICWA says, when suitable relatives were available.

The consequences of those policies still reverberate today. On one of my trips to Minnesota, I visited a monthly support group at the All Nations Indian Church in Minneapolis. The church is in an area with a sizable native population. (The U.S. Census estimates that in 2018 the state was home to nearly 80,000 American Indians and Alaska natives.) As is native custom, they wafted sage smoke over their heads, faces and hands before taking turns to tell their stories. Eight of the nine people in attendance were adopted out to white families before ICWA was enacted.

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. She explained how she was adopted when she was 18 months old and placed with a white family that had been working on Rosebud, her home reservation in South Dakota.

White Hawk tells me it’s unclear why she was removed. She said that her new mother was distant and reminded her frequently that the family had done her a favor; she told White Hawk that she didn’t want her turning into a “good-for-nothing drunk Indian like [her birth] mother.”

Not everyone I talked to that day ended up having bad relationships with their adoptive families. But everyone spoke of a deep sense of grief, of feeling disconnected, of not fitting in, of being the only brown face in a sea of white faces, of rude questions and racist comments from strangers.

A 2017 study published by the Centers for American Indian and Alaska Native Health at the Colorado School of Public Health found native adoptees were more likely to experience depression, suicide, alcohol and drug addiction, and mental-health issues than white adoptees.

White Hawk tells me that she strongly believes in family preservation whenever possible. “All our efforts and money should be there first,” she says. If adoptions must occur, and must occur to nonnative families, she advocates for adoptive families to become part of the native community. “There needs to be a shift away from parents wanting children to conform to their culture, and an emphasis placed on parents understanding that a child needs to know who they are,” she says.

Being raised in tribal communities is, she believes, the best option for native children. “Our families and our cultures are very strong,” she says. “Even after everything that’s happened to us.”

That commitment to maintaining tribal ties is a key part of ICWA, which recognizes tribal children as citizens of whichever federal tribe enrolls them. When possible, tribal courts handle the child protection cases of their own citizens. If a tribe doesn’t have its own court system or doesn’t hear those kinds of cases, or if the tribal members involved don’t live on the tribe’s reservation, the case remains in state court, but the child’s tribe still has the right to be involved. Parents who don’t want their tribe involved have the right to say so, though.

“They absolutely have veto power,” Shannon Smith, a lawyer and executive director of the ICWA Law Center, told me. “Because parents should, whenever it’s appropriate, have a say in their children’s lives.”

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.

“Active efforts,” by contrast, require social-service agencies to do more, such as supplying bus tokens, phone cards and rides to get to those services, says White Hawk. In addition to providing attorneys for qualifying ICWA family cases, the law center also employs “Indian advocates” and “parent mentors,” individuals who meet with families, help them to get appointments and find housing, and go with them to court to explain how the process works. It’s more-intensive support, but advocates say that it is what their clients need.

“Our families are coming to us in crisis most of the time,” Smith told me. “So having those connections and helping them walk through what that process can be like, and giving them hope along the way, makes all the difference.” Those sorts of active efforts, she adds, should be used for all families, regardless of background.

There’s no national data on ICWA’s outcomes. Many state and local governments don’t have the capability to capture the necessary information. A 2015 Casey Family Programs publication reported that “only five states could identify ICWA-eligible children in their State Automated Child Welfare Information System,” citing a 2005 report by the Government Accountability Office.

Representatives from ICWA courts recently met to discuss ways to evaluate their effectiveness. All but two, Los Angeles County and St. Louis County, are simply too new to have meaningful data, says Alicia Summers, a consultant who is the former director of research and evaluation for the National Council of Juvenile and Family Court Judges. At the time that this article was going to press, the court in Duluth was awaiting the results of an analysis of its outcomes. But for now, Tarnowski wrote in an email, “we are hearing from various sources that parents feel more heard and encouraged and that tribes feel that they are [being] heard.”

Without knowing more about outcomes under ICWA, it’s hard to know what to make of the fact that native children are still removed from their families at far higher rates than their white counterparts. The same 2015 Casey Family Programs report showed that native children are removed at more than twice the rate of the population at large. And in Minnesota, that number is far higher: According to the Minnesota Department of Human Services, native children in the state are more than 18 times as likely as white children to be placed in foster care, a figure that has climbed steadily over the past few years.

The No. 1 reason for removals in Minnesota for all groups, according to the Minnesota DHS, is parental drug abuse. Like the rest of the country, the opioid crisis has hit Minnesota hard; according to the state agency, the rate of children being removed from their parents because of drug use has nearly doubled in the past five years. On top of addiction, some native parents are dealing with dysfunction fostered by the kinds of policies that ICWA seeks to reverse.

“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.”

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. In conjunction with for-profit adoption agencies, the institute has filed or supplied friend-of-the-court briefs for about a dozen legal challenges to the law in multiple states since 2015.

In January, I called Timothy Sandefur, Goldwater’s vice president for litigation, to ask about his group’s opposition to the law.

“I’ll begin by saying that I think that ICWA was passed with good intentions, because I don’t think that anyone will dispute that there were abuses that were going on in the period that led up to ICWA,” he said. But in practice, he went on, “it inflicts harm on the very people that it’s meant to protect.”

He argues that because the law requires courts, before terminating parental rights, to prove beyond a reasonable doubt that keeping a child with his or her family would be harmful—as opposed to the lower “clear and convincing” evidence standard that applies to nonnative families—it imperils children, while posing a racially discriminatory barrier for nonnative would-be foster and adoptive parents. He also argues that the law unreasonably forces states to carry out the will of the federal government.

I pointed out that more than two dozen child welfare organizations support the law. “Do you believe that you know better than they do?” I ask. “Absolutely, I do,” he said.

Later, I asked why his group, which normally focuses on limiting federal regulation and curbing union influence, became so interested in this topic. “Who do I have to be to care about Indian children?” he said.

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. However, a state family court blocked the adoption, citing ICWA, and instead placed him with a non-related Navajo family. (The boy’s mother is Navajo.) The Brackeens fought the decision. Together with the states of Texas, Indiana and Louisiana, as well as five other individual plaintiffs, including a couple from Minnesota, they ended up suing the Bureau of Indian Affairs and other federal agencies and officials.

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O’Connor’s reasoning was similar to Goldwater’s. He ruled that ICWA is a race-based law that violates equal protection under the Fifth Amendment and that it forces state officials to comply with a federal law, which violates the 10th Amendment. The law further tramples on states’ rights, he wrote, by requiring them to obey tribal governments in certain circumstances. The United States appealed the decision. In addition to child welfare organizations, more than 300 tribes, Congress members from both major parties and 21 state attorneys general filed amicus briefs in support of the United States.

The law’s defenders say O’Connor’s ruling ignores decades of legal precedent. Courts have generally not regarded laws giving special treatment to Native Americans as race-based because of the unique status of tribes. In the 19th century, the U.S. Supreme Court ruled that American Indian nations were “domestic dependent nations” and that the United States has a “trust responsibility” toward tribes. This dual status is similar to that of the Vatican and Italy, or Monaco and France, Fletcher explains. As such, tribes can have their own law enforcement, their own courts and their own education and child welfare systems. They can also set their own criteria for membership. ICWA is thus really an agreement between the United States and the 573 federally recognized tribes. American Indian children are U.S. citizens, but those who are members of a federally recognized tribe are also citizens of that particular nation. Tribal citizenship and race are not the same thing.

If O’Connor’s ruling is upheld, it may have broader implications for tribal law and could threaten the sovereignty of tribes altogether. In the appeals case, Deputy Assistant Attorney General Eric Grant, speaking on behalf of the United States, said, “If this court were to adopt plaintiff’s theory for affirming that unprecedented ruling, an entire title of the United States code would effectively be erased.” (Disclosure: As a contractor, I have done communications work on violent crime and endangered children in Native American communities for the Department of Justice, but none of that work concerned ICWA.)

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. In 2013, the court ruled in favor of a white couple from South Carolina that wanted to adopt a girl whose father, Dusten Brown, is a member of the Cherokee nation. The girl’s mother, who is not a Cherokee citizen, told Brown she was pregnant while he was stationed with the Army in Oklahoma. He said they should marry; she said no. Later, via text, she said Brown could either pay child support or give up his rights. He texted that he would give up his parental rights, and later, before deploying to Iraq, he signed a document agreeing to the adoption.

Brown maintains that he never meant for the child to be adopted by a different family, and that he thought he was giving sole custody over to the child’s mother. After he learned of the pending adoption, he sought to stop it and to gain custody, which was granted by a South Carolina family court. That decision was upheld by the state supreme court. The couple then appealed to the U.S. Supreme Court, which ruled, 5 to 4, that Brown did not have a right to the child under ICWA because he had abandoned her.

But had ICWA been followed properly, tribal law experts say, there never would have been a case at all. Under ICWA, Brown needed to go before a judge to give up his parental rights. Additionally, they say, the father’s name was spelled incorrectly and the wrong birth date was given when the adoption attorneys asked the Cherokee Nation if Brown was a citizen, thus delaying notification of the baby’s adoption. These sorts of discrepancies, experts say, happen regularly.

Even when the law is followed, implementation is uneven. Depending on the location, there might be a lack of early-intervention social workers or culturally appropriate treatment centers. “There’s no real dedicated federal funding stream to build that,” Bussey says. “There aren’t grants available to hire personnel, conduct trainings or otherwise build up all of those systems that need to work together in order to implement the law correctly.”

There’s also no penalty if the law isn’t followed. And what “active efforts” means varies from state to state. The 2015 Casey report noted that “without federal oversight, state legislatures, public child welfare authorities and courts are left to interpret ICWA provisions” and “active efforts” as they see fit.

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.

“I was very surprised to see her,” he says later. They’re no longer together, “but we keep things amicable for the sake of C.” (In the coming weeks, I would try multiple times unsuccessfully to reach her for an interview.)

Inside the courtroom, Jered takes a seat at a table across from Tarnowski. “Do you have that selfie picture?” Terri Port Wright, his attorney, asks him. Jered hands his phone to Port Wright, who takes it around the table to the judge. She looks over her reading glasses at an image of Jered and C, and nods in approval.

Jered shows Port Wright and Terrol Cousineau, the guardian ad litem, more photos of C, and fills them in on the boy’s milestones. “Jered is a glowing star in the night,” Port Wright told me later. “We don’t often see fathers step up in the way that he has.”

His case is one of about 150 child protection cases that she is handling, plus an additional 100 cases that are not child-welfare-related. Port Wright, who has been a lawyer for 12 years, is a big believer in the ICWA court in Duluth. “There’s a lot of dedication,” she says. “A lot of collaboration. And the judge holds all of the professionals involved in these cases accountable.”

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.

During one of our conversations, I had asked Jered if he’s ever been in a courtroom besides this one. “I’ve been in a lot of courtrooms,” he told me. “My older brother and my younger brother were always getting into trouble for something or another, so I was there for them.”

He stopped for a second, then said, “Actually, I was in the courtroom when they made the decision to take me away from my mom. I remember being ripped away from my mom.” He was about 5 years old. He doesn’t know the whole story. He and his brothers were placed with their grandparents. The boys had a good relationship with the couple, who instilled in Jered traditional Anishinaabe ways, like spearing and ricing.

Inside Courtroom 3, as they wait for C’s mother to enter, Tarnowski lets Jered know that C’s mother still has a right to either accept or challenge the court’s petition giving him sole custody, and that she doesn’t have to decide today. This means Jered leaves without a resolution, but he doesn’t seem upset.

“Do you need anything?” Tarnowski asks, looking over her reading glasses.

Jered smiles. “At the moment, I don’t need anything,” he says.

The judge reminds him that, if he does, he knows whom to call. “Way to go,” she says. “It has been wonderful to see your progress.”

When I call Jered a month later, he’s preparing to return to court, again with the hope that he’ll finally be granted full custody and that his period of supervision will end. He tells me that things are going really well—he’s busy with work and having fun with C. He faithfully brings the boy for visits with C’s mom, who recently got a job. “So, that’s really good,” he says. I ask him, if he’s granted sole custody, if he’ll work to keep C’s mom in the boy’s life. “Oh, absolutely,” he says. “I remember what it’s like not to have my dad around, so I want my son to have both of his parents in his life, if that’s possible.”

At the hearing, C’s mom is a no-show, according to a court transcript. After some deliberation and testimony by social services and Jered, the judge asks all present if they are in favor of transferring custody to him. Larissa Littlewolf, on behalf of the Fond du Lac tribe, says: “The tribe is very proud of Jered and how well he is doing. It is in the child’s best interest for him to be placed with his father, who has provided all his needs and all of his care since May of 2018.” After checking to see if the team is in agreement, Tarnowski addresses Jered directly: “Can you, like, sit still right now?” she asks.

“I really can’t,” he says.

“The energy that’s flowing from you is just contagious,” Tarnowski says.

“As I look back on this file about a year ago, things were a lot different. And you have changed the world, not just for you but for your son. ... You’re an amazing young man ... and your child is very lucky to have you for a father. Congratulations.”

“Thank you,” Jered says.

“I might have to give you a hug,” says Tarnowski.

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