Minnesota tribal members ponder future of Native child welfare ahead of Supreme Court challenge

Sheri Riemers, a member of the White Earth Band of Ojibwe, was 19 when she learned that two of her mother's sisters were removed from their birth home in the early 1970s and placed with separate non-Indian foster parents. One of the sisters was sexually abused and forcibly sterilized while in foster care.

Shaken by the revelation, Riemers has dedicated most of her adult life to programs designed to keep Native children with their families, so they are not deprived of their culture and tribal identity.

"I never wanted to see another Native family torn apart like ours," she said. "It was too traumatic."

Riemers and other tribal members across Minnesota are closely watching a U.S. Supreme Court case to be argued Wednesday that they worry could reverse decades of policy meant to strengthen Indian families and tribal sovereignty.

The case, Haaland v. Brackeen, challenges the constitutionality of the Indian Child Welfare Act (ICWA), a 1978 law passed in response to the widespread removal of Indian children from their homes and their placement in boarding schools or white foster homes. It requires child welfare agencies to notify tribes when a Native child is removed from a home and to prioritize placement with relatives or other families within their tribal communities.

Many legal scholars expect the law to be overturned in full or in part — and Indian officials and child welfare advocates are already preparing for a dramatically changed legal landscape in which Native families will no longer have preference in child custody cases. A ruling against the law could also open up other challenges to Native sovereignty, such as the ability to pass laws and safeguard their natural resources, say legal scholars and tribal leaders.

Lawyers for the plaintiffs in the case, including three white families who tried to adopt Indian children, argue that the law is a race-based policy that violates the Constitution's equal protection guarantee. In court documents, they maintain that it discriminates against non-Native parents looking to adopt, as well as Native children who are victims of neglect or abuse.

The plaintiffs also argue that the law needlessly keeps Native children in foster care longer because child welfare agencies must seek out placements in Native families.

Mark Fiddler, an Edina attorney and member of the Turtle Mountain Band of Chippewa Indians, represents a Minneapolis couple at the center of the Supreme Court case. Danielle and Jason Clifford were blocked from adopting a 6-year-old Native girl because of the standards of the challenged law.

"The best interests of the child should be paramount, and that's not the case with [the law]," said Fiddler, who spoke while traveling to Washington, D.C., for the oral arguments in the case. "Literally, children could be subject to riskier and more dangerous conditions in the home than if [the law] didn't apply."

Yet tribal leaders and Native advocates fear that an adverse ruling against the lawcould unravel decades of work educating counties and local judges on the importance of preserving Native families.

Before the Indian Child Welfare Act became law, many Indian children were being removed from their birth parents not for abuse or neglect, but because of poverty — whether real or imagined. Until the early 1970s, from 25% to 35% of Native children were being taken from their birth parents. More than 90% were placed in non-Native homes or institutions, according to surveys and congressional testimony at the time.

The federal government actively promoted the mass separations of Native families. From 1958 to 1967, it funded the Indian Adoption Project in partnership with state social workers to remove tribal children from their homes and adopt them to white families. The U.S. Bureau of Indian Affairs enlisted social workers to visit Indian reservations and persuade parents to sign away their parental rights.

"The Indian Child Welfare Act is as necessary today as it was in 1978," said Prof. Angelique EagleWoman, director of the Native American Law and Sovereignty Institute at the Mitchell Hamline School of Law and among 30 professors of American Indian law who filed an amicus brief in support of Indian Child Welfare Act. "It would be a huge travesty, and a move backward to genocidal policies, for the U.S. Supreme Court to carve out any portion of the law."

Nearly 500 federally recognized tribes in the country, including Minnesota's 11 tribes, asked the high court to uphold the law in a legal brief. The American Academy of Pediatrics, American Medical Association and American Psychological Association also submitted briefs supporting the law, arguing that its safeguards against child removals have helped to reduce "intergenerational trauma" suffered by Native communities and promote the well-being of children.

Shannon Smith, executive director of the nonprofit ICWA Law Center in Minneapolis, said a rollback of the law would be devastating for tribal communities.

At any given time, Smith's organization is handling more than 200 child custody cases involving Native children in Minnesota. She said that now, more than four decades after Congress passed the law, her center still sees cases in which counties and courts move to remove Native children without notifying the child's tribe and parents of custody proceedings. In 1985, Minnesota enshrined many of the federal legislation's safeguards in state law, which further increased tribal involvement in child custody cases.

"There is a lot that still needs to be done in Minnesota, but [federal law] definitely provides a more robust response," Smith said.

Even with federal and state protections in place, Native children continue to be vastly over-represented in Minnesota's foster care system. In 2020, American Indian children were 16.4 times more likely to be removed from their birth parents than white children, according to the most recent state data.

Among its key provisions, the Indian Child Welfare Act requires that child welfare agencies make "active efforts" to keep Native families together. That may include providing parents with substance use treatment, counseling and other services, as well as basic items such as transportation to medical appointments, she said. In cases not falling under the law, child welfare agencies must make "reasonable efforts" to keep families together, which is a lower standard.

The law "is really the gold standard of social work," said Smith, who co-authored a legal brief in support of it. "This is something that we've learned is good for families, that helps families heal from the trauma that they've experienced."

Riemers spent 13 years as director of the Indian child welfare program at the Minneapolis American Indian Center. During that time, she worked to persuade counties to allow her team to monitor court proceedings and to intervene in cases where Indian children were being removed, she said.

"As Native people, they could take our land. They could take our food. They could take our livelihood," said Riemers, now interim executive director of the Ain Dah Yung Center, a St. Paul-based shelter for runaway and homeless youth. "But they weren't successful in dismantling and desecrating us as a people until they started taking away our children."