Wyoming tribes rejoice over Native American custody ruling, but Judge Thomas calls for challenges

For the head of the Eastern Shoshone tribal government, the US Supreme Court’s decision to uphold a 45-year-old Native American custody law came as a pleasant surprise.

The Supreme Court ruled Thursday 7-2 that the Indian Child Welfare Act (ICWA), which gives tribes the power to protect custody of Native American children living on and off reservations, is constitutional. Petitioners challenged the law last year, calling it an excess of congressional powers and a violation of equal protections.

“It was a pleasant surprise,” John St. Clair, chairman of the Eastern Shoshone Business Council, told Cowboy State Daily on Friday. “Personally, I wasn’t sure if they would comply with ICWA law.”

The federal court for the Fifth Circuit recently watered down part of the law, calling it racially discriminatory against non-natives, but the Supreme Court ordered the Fifth Circuit Court to overturn that decision.

And St. Clair was pessimistic last year when the U.S. Supreme Court ruled in Oklahoma v. Castro-Huerta that prosecutors can prosecute non-Natives who commit crimes against Indians on Indian lands like Wyoming’s Wind River Indian Reservation.

St. Clair called the Castro-Huerta verdict a violation of tribal sovereignty. It made him doubt ICWA would survive.

our existence

St. Clair pointed to the tough assimilation policies of the federal and other governments that led to the passage of the ICWA. Authorities would remove local children from their families and put them up for adoption by non-local families. Other children were sent to assimilative boarding schools.

“The intent of the Indian Child Welfare Act was to protect Indian families and keep them together,” St. Clair said. “And the result of that is the preservation of our existence.”

Fearing that the Supreme Court would overturn the federal law, Wyoming passed its own state version of the ICWA in March. The state version would have stood if the Supreme Court had ruled ICWA in excess of federal powers, but not if it had called it racially discriminatory.

As it turned out, the Supreme Court upheld the law in its entirety.

Had the Supreme Court struck out all ICWA versions except for the states, the Shoshone tribe may have had difficulty deciding tribal child custody cases in states without the law.

But this is happening now

But even with federal law intact, St. Clair said, some states make it difficult for the tribe to participate in ICWA trials of Shoshone children.

“We’ve had a lot of big problems with some states, even when they pretend to obey (the law),” he said. “They try to make it as difficult as possible for the tribes to take advantage of the act.”

That resistance hasn’t been eliminated with the court’s confirmation, St. Clair said, but at the very least those states must still comply with ICWA’s written requirements.

Arapaho also excited

The Northern Arapaho Tribe also lauded the Supreme Court in a statement Thursday, praising Gov. Mark Gordon and state legislators for lobbying for the state version of the law.

“Today’s decision by the US Supreme Court to uphold the Indian Child Welfare Act (ICWA) is a landmark victory for child welfare, tribal culture and our way of life,” the statement said. “This ruling represents a rejection of the shameful practices pre-ICWA in which indigenous children were systematically removed from their homes and communities in order to erase our language, culture and practices.”

Vulnerabilities for future challengers

Judges Clarence Thomas and Samuel Alito were the only dissenters in Thursday’s decision.

Thomas’ dissent seems to invite future challenges.

Petitioners opposing ICWA failed to discredit the long line of cases that the majority cited in their position on maintaining the law.

They also failed to sue the right entities when they complained that ICWA was racially discriminatory.

And one of the petitioners, the state of Texas, has failed to show that it has any authority to file equality complaints.

Thomas expressed frustration at the shortcomings of the petitioners and said he was relieved that Texas was the only state unable to challenge ICWA.

Other states can still challenge the law and previous court cases advocating strong federal violence over Native American tribes. The government asserted this authority when arguing to keep its ICWA law intact.

The federal government in this case argued that it had the power to regulate Indians both on and off reservations because of the US Constitution’s Indian Trade Clause.

Thomas countered, claiming that the trade clause applies only to goods and trade – not to child custody cases.

“There’s just no reason to think there’s any kind of free-floating, unlimited power over anything Indian-related,” Thomas said in his dissent.

He said the ability for other states to challenge the law was the “only saving grace” Thursday.

Clair McFarland can be reached at Clair@CowboyStateDaily.com.