Washington Post on Brackeen v. Bernhardt [ICWA]


In the 40 years since Congress enacted the Indian Child Welfare Act, the law has been criticized in legal challenges that have climbed all the way to the U.S. Supreme Court. But the ICWA, as the act is known, has always prevailed.

Now its constitutionality is being questioned again. On Thursday, the U.S. Court of Appeals for the 5th Circuit agreed to rehear a lawsuit filed by a non-Native American couple in Texas claiming the ICWA discriminates on the basis of race and infringes on states’ rights.


Kathryn Fort, a Michigan State law professor and one of the nation’s foremost ICWA experts, told The Washington Post she thinks there are more important battles to wage on behalf of children.

“Given that a federal judge this week fined Texas $50,000 a day until they fix their broken child welfare system,” Fort said, “it seems beyond the pale for them to try to continue to strike down a law that is designed to help children and families in that very system heal and reunify.”

WaPo Column on Anonymous Child Abuse Hotlines


These hotline practices can result in unnecessary trauma to parents and children. In Texas, a family had lost their apartment after the father lost his job as a welder. They were living temporarily in a spacious storage shed, which had air conditioning and a refrigerator, because they felt that the local homeless shelter was unsafe.  A passerby made a call, a caseworker appeared at the shed, and the state immediately took custody of the children without offering any preventive services. A court hearing was not set for two months. During those two months, the parents were only allowed to visit their children for less than an hour a day.

Hotline practices also disproportionately affect poor people of color. Many studies show the disparate treatment of minorities and impoverished families in the child welfare system. Black children are twice as likely to be reported as white children, while minority parents are more likely to receive higher levels of state intervention following a report.

Washington Post Op Ed on VAWA and TLOA


Even with the laws now passed, legal loopholes remain and the wait for justice for Native women continues, in part because VAWA, the newer of the two laws, won’t take effect until next year on most reservations, including the Standing Rock Sioux Reservation. Even then, tribes must have implemented a series of steps that many might not already have in place and could pose large legal costs.

One of these steps, for example, includes ensuring tribal judges have appropriate credentials they might not already have, said Troy Eid, a former U.S. Attorney for Colorado who this past year chaired the Justice Department’s Tribal Law and Order Commission.

“It’s going to be a while before these changes take place on many reservations,” he said. “And there is going to be a lot of waiting while these issues unfold.”

Limited Filibuster Reform Surrounds Patricia Millett’s Nomination

WaPo article here.

The Senate voted 57 to 40, with three abstentions, to reconsider Millett’s nomination. Several procedural votes followed. The Senate parliamentarian, speaking through Sen. Patrick J. Leahy (D-Vt.), the chamber’s president pro tempore, then ruled that 60 votes are needed to cut off a filibuster and move to a final confirmation vote. Reid appealed that ruling, asking senators to decide whether it should stand.

The Democratic victory paved the way for the confirmation of Millett and two other nominees to the D.C. appeals court. All have recently been stymied by GOP filibusters, amid Republican assertions that the critical appellate court simply did not need any more judges.

Under its new rules, the Senate subsequently voted 55 to 43 Thursday afternoon to move ahead with Millett’s nomination. Two senators voted present.

Senate rules still require up to 30 hours of debate on the Millett nomination. So a final confirmation vote on the nomination is expected to be held in mid-December after the two-week Thanksgiving recess.

WaPo Article on Shut Down and Indian Tribes


Some tribes intend to fill the gap in federal funds themselves, risking deficits of their own to cushion communities with chronic high unemployment and poverty against the effects of the budget battle.

“Do we just throw kids onto the street, or do we help them? Most likely we’re going to help those families and do whatever we can until this is unresolved,” said Tracy “Ching” King, president of northern Montana’s Fort Belknap Reservation.

But for other tribes, basic services stand to take a direct hit. That includes programs heavily subsidized by federal agencies and others paid for with tribal money that is suddenly unavailable because it’s being held by the Department of Interior, tribal leaders said.

WaPo Coverage of Exxon Valdez Oil Spill S.Ct. Case

From WaPo:

When a federal jury in Alaska in 1994 ordered Exxon to pay $5 billion to thousands of people who had their lives disrupted by the massive Exxon Valdez oil spill, an appeal of the nation’s largest punitive damages award was inevitable.

But almost no one could have predicted the incredible round of legal ping-pong that only this month lands at the Supreme Court.

In the time span of the battle — 14 years after the verdict, nearly two decades since the spill itself — claimants’ lawyers say there is a new statistic to add to the grim legacy of the disaster in Prince William Sound: Nearly 20 percent of the 33,000 fishermen, Native Alaskans, cannery workers and others who triumphed in court that day are dead.

Continue reading

WaPo: Aurene Martin on ICWA

Whose Best Interest?
Monday, October 15, 2007; A14

Regarding the Oct. 9 editorial “A Tribal Question”:

The Indian Child Welfare Act (ICWA) provides protections to Native American children to prevent their unnecessary removal from their families, but it does not prevent them from receiving the help necessary to protect their best interests.

The ICWA was passed in 1978 in response to the staggering number of children being removed from their homes, the vast majority of whom were placed out of their communities and lost their connection to their tribes.

Unfortunately, most attorneys and courts don’t learn about the ICWA until it is too late. Once confronted with its requirements, they find that they have failed to meet its standards.

Most tribes understand this and are willing to work with authorities to make sure that the children involved receive the best care possible. Although tribes would like to place children within their communities, they first prefer that children are placed with family members.

Given the facts that the editorial reported, I find it hard to believe that any court would find that it is in the best interest of those children to be returned to their parents.