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IBAPAH, Tooele County — Growing up on the Confederated Tribes of the Goshute Reservation, Rupert Steele remembers running and hiding when outsiders visited.
"I remember that as a little boy, anytime a non-Indian would come to the house — even for a visit with the parents — we'd go hide because we were scared they would come and get us," Steele said, explaining that his fear was rooted in seeing other children removed from the reservation. It was a phenomenon he said happened many times.
"What I seen out there was a lot of people would be using alcohol and all it would take would be one call to the state — in our case Tooele — and they'd come and get their kids," Steele said. "Without any questions, they picked them up and put them under state welfare systems."
Steele grew up before Congress enacted the Indian Child Welfare Act in 1978 to safeguard against the forced separation of Native children from their families and communities. Now, in the face of a Supreme Court challenge to ICWA, Steele — chair of the Confederated Tribes of the Goshute Reservation — is leading the fight to codify those federal safeguards in Utah state law.
"The Indian Child Welfare was a piece of legislation that really left the Indians to take care of their own children, to exercise their sovereignty," Steele said. "And it gives the children a chance not to be afraid, to go forward with their lives without any fear of 'Oh, my tribe is not going to take care of me now because there's nothing there to protect me.'"
Paul Tsosie, an expert in Indian law and legal counsel for the Confederated Tribes of the Goshute Reservation, said codifying ICWA in Utah has widespread support, including from the state's eight federally recognized tribes, the Indian Law Section of the Utah State Bar and the state's Native American Legislative Liaison Committee.
Utah Attorney General Sean Reyes was also a part of a bipartisan coalition that submitted an amicus brief in support of ICWA, arguing that the law fosters good relationships between states and tribal governments.
"Utah actually contributed significantly to the constitutional arguments," Tsosie said. "Utah has some very good constitutional lawyers, and they weighed in on behalf of Indian Country."
The Native American Legislative Liaison Committee is currently working on draft legislation, and both Tsosie and Steele are optimistic that a bill will be passed in the upcoming legislative session. Those feelings seem to be supported by the fact that the Legislature passed a bill earlier this year that bolstered funding and resources for ICWA in Utah.
Understanding history
The Indian Child Welfare Act was enacted after congressional hearings and investigations revealed Native children were frequently being removed from their families, often without cause, and being placed largely with white families or in boarding schools.
Approximately 80% of Native families living on reservations lost at least one child to the foster care system before ICWA. That amounted to about a third of all Native children being removed. Of those removed, 85% were placed outside their families and communities even when fit and willing relatives were available.
(The Indian Child Welfare) gives the children a chance not to be afraid, to go forward with their lives without any fear of 'Oh, my tribe is not going to take care of me now because there's nothing there to protect me.'
–Rupert Steele, chairman of the Confederated Tribes of the Goshute Reservation
The act targeted some of the most egregious removal practices. It gives preference to Native families for foster care and adoption, requires states to notify and involve tribes and a child's parents in custody proceedings and establishes minimum federal standards for when Native children can be removed from their families.
"It had a calming effect," Steele said, adding that the Supreme Court challenge has done the opposite. "It's troublesome; worrisome. Do we go back and tell our children that this may happen to you guys — because of my experience, and what I've seen — this may happen?"
He expressed worry about how those types of conversations will impact Native children.
"What are we telling our children? Don't trust anybody — and that's not a good thing. It divides us," he said. "At this point of their life, in the early stages of their learning, do I want to disrupt that by telling them that we may have to live with different rules some time down the road? And how do you prepare them for it? And the possibility of instilling anger in them, and stress and a lot of other things that would change their attitude and their behavior — it's not a good outlook."
The Supreme Court challenge has also been criticized by tribes and Native advocates as a step in the country's long history of genocide against Native Americans in which the removal of Native children was used as pawns to seize more land — a scheme they say was often cloaked under the guise of charity or religious benevolence.
The law firm Gibson Dunn, known for representing big oil companies like Chevron and Shell in cases against tribal communities, is working the case pro bono on behalf of the white families challenging ICWA. The Goldwater Institute has also filed over a dozen cases challenging ICWA, according to NowThis News. Cherokee lawyer Mary Kathryn Nagle says that's not a coincidence.
"If you can take a nation's children, you'll eradicate that nation. Because without any children, you literally do not have a nation anymore — and the folks who are fighting ICWA understand that," Nagle told NowThis News. "These are well-funded attorneys from oil and gas who don't want to be told by a tribal nation, 'No, you can't build that pipeline through our burial ground.' ... If you can eliminate those nations, if those nations no longer exist, then I think oil and gas understand there's a lot more profit to be had."
Preparing a backup plan
The Supreme Court heard opening arguments for the challenge against ICWA on Wednesday. The case, Haaland v. Brackeen, involves the state of Texas and several white families who are adopting Native children. They argue the law is unconstitutional because it uses race to determine placement for Native children.
Justices appear to be closely divided on the law. Justice Neil Gorsuch, a proponent of tribal rights, and the court's three liberal justices appear posed to uphold ICWA in its entirety. The remaining four conservative justices, however, voiced concerns about some provisions of the law, opening the door to the possibility that at least parts of ICWA could be struck down.
Tsosie said the case challenges the foundations of federal Indian law, which has long recognized "Indian" as a legal status based on treaties between U.S. and tribal governments, rather than a special interest group or a protected class like women, racial and ethnic groups and the LGBTQ community.
"Indian tribes have political relationships with the U.S. government, and the U.S. Supreme Court has (said) laws passed for their benefit are not based upon race — they're based upon political status because you enter into treaties under the U.S. Constitution under the treaty clause," he said. "And you do that with governments, not with individual people or with individual races."
Tsosie said the draft legislation he is working on with the Utah Legislature's Native American Liaison Committee is practically identical to the federal law minus a few administrative changes. If passed, Utah would join a number of other states, including Arizona, New Mexico and California, that already have state-specific versions of the law.
"We are not sure exactly what the United States Supreme Court will do, but we wanted to have a backup plan just in case," Tsosie said.
