Last month, the Washington Supreme Court affirmed core provisions in the Indian Child Welfare Act (ICWA), ensuring that the law’s protections are applied early enough to prevent the unnecessary removal of Native children from their families (In re Dependency of Z.J.G. & M.E.J.G). It adopted a broad interpretation of ICWA’s “reason to know” standard, the critical clause that determines whether ICWA’s protections of family integrity and tribal sovereignty will be brought to bear in a dependency case.
Justice Raquel Montoya-Lewis’ 41-page opinion was joined by the entire high court. For those of us who have been fighting in the trenches on behalf of Native families, it was a historic moment.
The significance of this decision, what it will mean in the courtrooms for Native families and children, can hardly be overstated. A broad interpretation of “reason to know” means that ICWA, considered the gold standard in child welfare policy, will be invoked early enough to make a difference in the outcome of a case. The decision was a resounding defense of ICWA as well as the inherent rights of tribal nations.
Of particular significance is the analysis Justice Montoya-Lewis brought to the issue. From her opening sentence, her opinion is grounded in the painful, historical context of the issue before the court.
“In Native American communities across the country, many families tell stories of family members they have lost to the systems of child welfare, adoption, boarding schools, and other institutions that separated Native children from their families and tribes,” she begins. “This history is a living part of tribal communities, with scars that stretch from the earliest days of this country to its most recent ones.”
ICWA was passed in 1978 to end what Justice Montoya-Lewis called the “historical and persistent state-sponsored destruction of Native families and communities.” As she notes in her decision, it was a law with particular relevance in Washington, listed in a 1976 federal report as one of the 10 worst states by rate of Indian placements.
It is precisely that history which makes it difficult today to identify Indian children protected by the act; many families lack detailed information about their relationship with tribal nations because it was, for so many generations, the policy of our government to destroy those relationships.
That is in part why in 2016 the Obama administration issued regulations clarifying many of ICWA’s requirements—attempting to protect Native children and families and uphold tribal sovereignty in several ways. Among other things, the regulations clarified that when there is a “reason to know” that the child is an Indian child, the court must not only notify the tribe about a dependency proceeding but also apply ICWA until the tribe determines whether the child is an Indian child.
In this case, the parents—represented by attorneys at the King County Department of Public Defense—identified their heritage with particular tribal nations at a shelter care hearing. But the trial court found that ICWA didn’t apply because their testimony lacked sufficient detail. According to the trial-court judge, there was not even a “reason to know” the children may be Indian children. Days later, the children’s relationship to their tribe became clear when the Tlingit & Haida Tribe intervened in the case. By then, however, the children had been removed by the state and placed in a non-tribal foster home, despite the availability of culturally appropriate placements.
The father, Scott Greer, sought discretionary review; the Court of Appeals upheld the trial court’s order; Greer then appealed to the Supreme Court. The Washington State Attorney General’s Office sought to uphold the trial court decision and dramatically limit the application of ICWA’s protections.
Justice Montoya-Lewis’s decision relies on the history of state-sponsored family separation, the plain language of the statute, and rules of statutory construction in federal Indian law, to adopt a broad reading of a “reason to know.”
The decision also acknowledges that, moving forward, the practice in dependency cases may need to change to comply with the law. But that is no reason to dodge this issue, she adds. Quoting the U.S. Supreme Court on another groundbreaking case affirming tribal rights, Justice Montoya-Lewis writes, “The magnitude of a legal wrong is no reason to perpetuate it.”
Although this ruling comes too late to directly benefit our client, his insistence that his family was wronged has now been vindicated by our state’s highest court. And in the few short weeks since the decision, I’m already hearing from our family defense attorneys that Superior Court judges are responding appropriately, invoking ICWA once a parent identifies a tribal relationship. It’s an easy standard to apply. And in light of the wrongs ICWA attempts to right, it is, unquestionably, the right thing to do.
Tara Urs. Tara, special counsel for civil policy and practice, training, and employee development at the King County Department of Public Defense, argued on behalf of Greer in the case before the Washington Supreme Court. She obtained her B.A. from Wesleyan University and her J.D. from New York University School of Law, where she was an Arthur Garfield Hays Civil Liberties Fellow and winner of the John Perry Prize for Civil Liberties and Civil Rights. Tara is the author of several law review articles on child welfare law, transitional justice, and domestic violence, and has taught legal research and writing at Seattle University School of Law and Brooklyn Law School.
