Leaders from the Cherokee Nation, the Morongo Band of Mission Indians, the Oneida Nation and the Quinault Nation are joined by attorneys and advocates outside the 5th Circuit Court of Appeals in New Orleans, Louisiana, following a hearing on the Indian Child Welfare Act on January 22, 2020. Photo by Indianz.Com (CC BY-NC-SA 4.0)

Author blames Crow child's death on Indian Child Welfare Act

The mainstream media barely covered oral arguments in a critical Indian Child Welfare Act case last week but USA Today is here to make up for it with an opinion from a critic of the federal law.

In a piece published on Wednesday, author Naomi Schaefer Riley blames the death of a boy from the Crow Tribe on ICWA. Antonio "Tony" Renova was only five years old when he was killed in November, allegedly by his biological parents and by another adult in the home.

What Riley leaves out is that ICWA did not come directly into play in Tony's case. According to The Great Falls Tribune, he was placed in his parent's home by the Crow tribal court, whose activities are not governed by the 1978 law.

Indianz.Com Audio: Brackeen v. Bernhardt - 5th Circuit Court of Appeals - January 22, 2020

ICWA, instead, was enacted by Congress to establish minimum requirements in state child custody proceedings, according to the National Indian Child Welfare Act Association. The Trump administration made the exact same point during the court hearing last week in Brackeen v. Bernhardt, the case being watched by tribes everywhere.

"The Indian Child Welfare Act establishes minimum federal protections for the children of members of Indian tribes, with whom the United States maintains a government-to-government relationship," Eric Grant, a deputy assistant attorney general at DOJ, told the 5th Circuit Court of Appeals in New Orleans, Louisiana, on January 22.

Riley acknowledges that the tribe's court made the decision to place Tony in the home where he died. However, she does not explain how ICWA guided the outcome and nothing reported about the boy's situation so far has indicated how any state court or state agency in Montana was involved.

Riley also mentions Brackeen in her piece, noting that it is being challenged, in part, on the grounds that is based on "race" instead of the government-to-government relationship between tribes and the U.S., a political relationship.

"For the sake of children like Tony Renova, let’s hope they see the law for the unconstitutional and dangerous policy it is," Riley wrote of the judges who heard the case last week.

In the past, Riley has written about Indian education, tribal courts and boarding schools. Her 2016 book, The New Trail of Tears: How Washington Is Destroying American Indians, claims that American Indians who live on reservations would be better off by adopting Western standards and ideals, such as property rights and capitalism.

Read More on the Story
Naomi Schaefer Riley: The Indian Child Welfare Act: A law that paved the way for a 5-year-old's death (USA Today January 29, 2020)

5th Circuit Court of Appeals Documents
Brackeen v. Bernhardt (August 9, 2019)
Brackeen v. Bernhardt Partial Dissent (August 16, 2019)

ICWA and Congress
In passing the Indian Child Welfare Act in 1978, Congress reacted to a crisis of Indian children being taken from their communities at high rates, often without input from their families or their tribal governments. Key findings from the law:

• "[T]here is no resource that is more vital to the continued existence and integrity of Indian tribes than their children and that the United States has a direct interest, as trustee, in protecting Indian children who are members of or are eligible for membership in an Indian tribe"

• "[A]n alarmingly high percentage of Indian families are broken up by the removal, often unwarranted, of their children from them by nontribal public and private agencies and that an alarmingly high percentage of such children are placed in non-Indian foster and adoptive homes and institutions"

• "The Congress hereby declares that it is the policy of this Nation to protect the best interests of Indian children and to promote the stability and security of Indian tribes and families by the establishment of minimum Federal standards for the removal of Indian children from their families and the placement of such children in foster or adoptive homes which will reflect the unique values of Indian culture, and by providing for assistance to Indian tribes in the operation of child and family service programs."

ICWA and the Media

The Native American Journalists Association recently updated its guide to ethical reporting on the Indian Child Welfare Act.

"It’s not a journalist’s duty to determine if a child is Native 'enough,' but whether or not they are citizens under Tribal law," the guide states. "Reporting phenotypes and blood percentages is culturally offensive, and disregards and diminishes the political rights of Indigenous people."

The full document can be found on najanewsroom.com.

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