On Nov. 9, the U.S. Supreme Court will hear Haaland v. Brackeen, a case that challenges the constitutionality and the future of the Indian Child Welfare Act (ICWA).
ICWA was established in 1978 “to protect the best interest of Indian Children” by creating federal standards for removing Native children from their families and making sure Native children were placed in homes that would reflect their culture.
Judge Debra O’Gara has spent over a decade working on Indian child welfare cases and directing trainings on ICWA for guardians, case workers and lawyers, in the state and tribal court systems.
O’Gara, who is Lingít, Yupik and Irish, lives in Petersburg. She and her siblings were raised by a single mom who worked nights as a cocktail waitress.
“In one of the suburban, predominantly white neighborhoods that we lived in, there was twice in my childhood where [Child Protective Services] was called in and an investigation was conducted,” she said. “There were assumptions that we weren’t taken care of because my mom wasn’t home at night. In fact, we actually were taken care of and had somebody staying there with us. We were doing just fine.”
This was before ICWA, and these childhood experiences led O’Gara to carve out a career protecting Native families from unnecessary separation.
The state of ICWA in Alaska
O’Gara says that some states are better than others at adhering to ICWA.
“But right now, Alaska, I would say, is not doing so well,” she said. “The state of Alaska has not followed the spirit or the letter of the law.”
More than 20% of Alaskans are Alaska Native or Native American, but about 55% of children in state custody are Alaska Native.
O’Gara said that many of these children are eventually adopted by non-Native families and often even removed from Alaska, despite the passage of ICWA.
“So what happens there is the tribe loses their children,” she said. “And the children lose their connection to their tribal affiliation. For those of us here in Southeast that grow up in a clan, they lose their identity as a clan, what clan they belong to, what house they belong to, what their Lingít name is or how to name who their relatives are, and that whole belonging and knowing who they are.”
O’Gara pointed to multiple factors that lead to this high percentage of Alaska Native children being removed from their homes. Some of it, she attributes to a lack of training and consistent, skilled staff in the state’s system leading to a backlog of cases in the courts.
“Training needs to be consistent with every new staff that comes in,” she said.
Without that, she says, staff bias figures into the equation. For instance, part of many Native cultures is having many relatives living under one roof. But for the state, a house with three or four times more people living in it than if it was a non-Native or white house is considered overcrowded.
In Southeast Alaska, clan members are considered family.
“And that’s as that’s actually as strong as a blood relation, sometimes stronger,” O’Gara said.
To her, these multi-generational families meant that there were lots more mentoring, opportunities for teaching and sharing childcare responsibilities.
But, because these familial structures are less common in the U.S., she says, the system often gets concerned about who is taking care of the children in these households.
“There’s prejudices and assumptions that are made that then lead to the children being removed when they shouldn’t have been removed in the first place,” O’Gara said. “And then once you get into that system, it’s really hard to prove that there’s nothing going on.”
Where ICWA began
Before ICWA, one way Native children were systematically removed from their families was by declaring they were neglected or abused by their parents. Another way is perceived “poverty and lack of parenting by Western standards” says O’Gara.
“There was a great outcry in the ’60s and ’70s about the continued removal of children,” O’Gara said. “At the same time that this was happening, there were also children being removed from their communities and forced to go into boarding schools, which we in the Native community all know about.”
She added that this was especially devastating to the Native community because much of the culture is based on the land they live on and the ceremonies that are performed with their families.
“The removal of the Native children was just one of the ways to completely annihilate and disappear Native people,” she said.
When ICWA was finally passed in 1978, O’Gara says it recognized that children have the right to know who they are.
“It also recognized that the tribe had a legal interest in protecting the tribe’s children,” she said.
The future of ICWA
Today, ICWA is often considered the “gold standard” for all children by child welfare experts.
“The other thing that ICWA did is to mandate placement preferences,” O’Gara said. “And the placement preferences, I have always argued, should be universally applied to not just Native children, but to all children who find themselves in the child welfare system.”
These placement preferences she outlined mean that children removed from their parents would first be placed with family. The next option after biological family is clan family or psychological family, which includes community members and long term friends, she said.
“Lastly, when all of those [options] have been exhausted, and there’s no placement found, then with an appropriate non-Native family,” she said. “Often in the current child welfare system in Alaska, those first three get skipped over. And there’s efforts to continue to have those systems be improved, so that the first that the preferences can be placed.”
O’Gara believes that parents who are being accused of neglect or abuse of a child need time to seek treatment or help, but in the meantime, children shouldn’t lose their connected to their community or their family.
The plaintiffs in the Brackeen v. Haaland case say that giving additional support to Native parents and prioritizing Native homes for Native children violates the equal protection clause.
“So one argument I’ve heard is that Native [people] should not be given special treatment,” O’Gara said. “Well, my answer to that is the guidelines should be applied to everybody equally… Because all children also have the right to know who they are, who their family is, where they belong, and some of their family history.”
She thinks that providing active efforts and services for parents and children—like those outlined in ICWA—would “benefit every child in the child welfare system.”
“We’re not just a minority like any group,” she said. “We have a special relationship with the federal government, in that we are sovereign nations.”
There have been many attempts to change or weaken ICWA in various state courts, but she also sees this as an opportunity for states to go in and strengthen ICWA. Washington state, where O’Gara grew up, has extra provisions that protect Indian children more than the federal ICWA does.
“And certainly Alaska is able to do that,” she said. “Ever since ICWA has passed, there’s been political forces that have attempted to eliminate it, and they have not yet been successful. It doesn’t mean that it’s not as strong as it was when we first passed. And at some point, we will be able to turn that tide and get back to strengthening it.”
