Amicus Curiae Brief — Deb Haaland, Secretary of the Interior, et al., Petitioners v. Chad Everet Brackeen, et al.

Supreme Court briefAug 17, 2022

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Nos. 21-376, 21-377, 21-378, 21-380

================================================================================================================

In The

Supreme Court of the United States

---------------------------------♦--------------------------------DEB HAALAND, SECRETARY OF THE INTERIOR, ET AL.,

Petitioners,

v.

CHAD EVERET BRACKEEN, ET AL.

CHEROKEE NATION, ET AL.,

Petitioners,

v.

CHAD EVERET BRACKEEN, ET AL.

TEXAS,

Petitioner,

v.

DEB HAALAND, SECRETARY OF THE INTERIOR, ET AL.

CHAD EVERET BRACKEEN, ET AL.,

Petitioners,

v.

DEB HAALAND, SECRETARY OF THE INTERIOR, ET AL.

---------------------------------♦--------------------------------On Writs Of Certiorari To The United States

Court Of Appeals For The Fifth Circuit

---------------------------------♦--------------------------------BRIEF FOR LOS ANGELES COUNTY AS AMICUS

CURIAE SUPPORTING FEDERAL AND TRIBAL

PETITIONERS AND CROSS-RESPONDENTS

---------------------------------♦--------------------------------500 W. Temple Street,

OFFICE OF THE COUNTY

COUNSEL OF LOS ANGELES

Suite 648

DAWYN R. HARRISON

Los Angeles, California 90012

Acting County Counsel

Telephone: (213) 808-8777

KIM NEMOY

Email: mvartanian@

Assistant County Counsel

counsel.lacounty.gov

MELANIA VARTANIAN

Counsel for Amicus Curiae

Counsel of Record

the County of Los Angeles

Deputy County Counsel

================================================================================================================

COCKLE LEGAL BRIEFS (800) 225-6964

WWW.COCKLELEGALBRIEFS.COM

i

TABLE OF CONTENTS

Page

INTEREST OF AMICUS CURIAE ......................

2

SUMMARY ..........................................................

3

ARGUMENT ........................................................

4

I.

II.

III.

THE ICWA IS AN INTEGRAL PART OF

CALIFORNIA’S JUVENILE DEPENDENCY

SCHEME AND IS VITAL TO PROMOTE

THE INTERESTS OF LOS ANGELES

COUNTY’S INDIAN CHILDREN .............

4

THE HISTORY OF RELOCATION CONTRIBUTED TO THE ICWA’S NECESSITY,

AND THEREFORE, THE PURPOSE OF

THE ICWA WOULD BE DEFEATED IF

IT WERE LIMITED TO INDIAN CHILDREN ON OR NEAR INDIAN LANDS ......

9

THE ICWA’S DEFINITION OF “INDIAN

CHILD” AND ITS CHILD PLACEMENT

PREFERENCES ARE POLITICAL DESIGNATIONS AND PROMOTE SELFGOVERNANCE BY SOVEREIGN TRIBAL

NATIONS .................................................. 17

CONCLUSION..................................................... 21

ii

TABLE OF AUTHORITIES

Page

CASES

Board of County Comm’rs v. Seber, 318 U.S. 705

(1943) .......................................................................17

Miss. Band of Choctaw Indians v. Holyfield, 490

U.S. 30 (1989) ..........................................................14

Morton v. Mancari, 417 U.S. 535 (1974) .....3, 4, 18, 19, 21

Morton v. Ruiz, 415 U.S. 199 (1974) ...........................17

Rice v. Cayetano, 528 U.S. 495 (2000) ................. 19, 20

Seminole Nation v. United States, 316 U.S. 286

(1942) .......................................................................17

Sioux Tribe of Indians v. United States, 7 Cl. Ct.

468 (Cl. Ct. 1985).....................................................10

United States v. Holliday 70 U.S. 407 (1866) ......... 3, 17

STATUTES

25 U.S.C. § 331 (1887) .................................................10

25 U.S.C. § 1901 .................................................. 2, 6, 19

25 U.S.C. § 1901(2) ......................................................19

25 U.S.C. § 1901(4)-(5) .......................................... 16, 21

25 U.S.C. § 1902 .................................................. 2, 6, 17

25 U.S.C. § 1903(4) ................................................ 19, 20

25 U.S.C. § 1915 ........................................................ 2, 6

H.R. Rep. 95-1386, 1978 U.S.C.C.A.N. 7530,

7531 ................................................................... 16, 20

Welf. & Inst. Code § 19 .................................................5

iii

TABLE OF AUTHORITIES – Continued

Page

Seiser & Kumli, Seiser & Kumli On California

Juvenile Courts Practice and Procedure

§ 2.62[2] (2022) ..........................................................5

Seiser & Kumli, Seiser & Kumli On California

Juvenile Courts Practice and Procedure

§ 2.11[1] (Matthew Bender 2017) .............................5

Seiser & Kumli, Seiser & Kumli On California

Juvenile Courts Practice and Procedure

§ 2.11[2] (Matthew Bender 2017) .............................5

Seiser & Kumli, Seiser & Kumli On California

Juvenile Courts Practice and Procedure

§ 2.11[3] (Matthew Bender 2017) .............................6

Seiser & Kumli, Seiser & Kumli On California

Juvenile Courts Practice and Procedure

§ 2.125[1] (Matthew Bender 2017) ...........................6

Welf. & Inst. Code §§ 202, 300.2, 361.5(a)....................5

Welf. & Inst. Code §§ 202, 300.2, 361(c)(1),

361.2(a), 361.3(a)(8), 366.21(e) .................................5

FEDERAL REGULATIONS

Indian Child Welfare Act Proceedings, 81 Fed.

Reg. 38779 (June 14, 2016) .....................................21

Indian Child Welfare Act Proceedings, 81 Fed.

Reg. 38782 (June 14, 2016) .....................................14

Indian Child Welfare Act Proceedings, 81 Fed.

Reg. 38783 (June 14, 2016) ............... 2, 10, 11, 13, 14

iv

TABLE OF AUTHORITIES – Continued

Page

OTHER AUTHORITIES

Blackhawk, I Can Carry On From Here: The

Relocation of American Indians to Los Angeles

(Autumn 1995) .................................................. 11, 12

Capacity Building Center for Courts, ICWA

Baseline Measures Project Findings Report 17

(2020), https://tinyurl.com/spa68nm ........................8

DCFS Child Welfare Policy Website, Adopting

and Serving Children Under the Indian Child

Welfare Act (ICWA), http://policy.dcfs.lacounty.

gov/Content/Indian_Child_Welfare_Ac.htm#ICWA

(revised July 1, 2014) ................................................7

DCFS Child Welfare Policy Website, Case Transfer Criteria and Procedures, http://m.policy.

dcfs.lacounty.gov/Src/Content/Case_Transfer_

Criteria_P.htm#AI (revised July 29, 2015) ..............7

ICWA Compliance Task Force Report to the

California Attorney General’s Bureau of Children’s Justice, 2017 ............................................ 7, 16

La Verne Madigan, The American Indian Relocation Program, Dec. 1956 ......................................11

Lead Article: Racial Bias In American Foster

Care: The National Debate, 97 Marq. L. Rev.

215 ...........................................................................17

v

TABLE OF AUTHORITIES – Continued

Page

Los Angeles County Department of Children

and Family Services, Specialized Programs,

American Indian Unit, https://dcfs.lacounty.gov/

about/what-we-do/dcfs-specialized-programs/

#:~:text=The%20American%20Indian%20Unit

%20provides,Public%20Law%2095%2D608 (last

visited July 22, 2022) ................................................8

National Center for Juvenile Justice, Disproportionality Rates for Children of Color in Foster

Care Dashboard (2010-2020), https://www.ncjj.

org/AFCARS/Disproportionality_Dashboard.

asp?selYear=2020&selState=California&sel

Display=2 (last visited July 22, 2022) ....................16

National Conference of State Legislatures, State

Statutes Related to the Indian Child Welfare

Act (Nov. 12, 2019), https://www.ncsl.org/

research/human-services/state-statutes-relatedto-indian-child-welfare.aspx#:~:text=Six%20

states%20(Iowa%2C%20Michigan%2C,child%22

%20and%20the%20notification%20requirements) .........6

Nicolas G. Rosenthal, Reimagining Indian Country: Native American Migration & Identity in

Twentieth Century Los Angeles (2012) ............. 12, 13

Northern California Indian Development Council, County List of Tribal Nations in California, https://www.ncidc.org/county-list-tribalnations-california (last visited June 27,

2022) .............................................................. 2, 10, 15

vi

TABLE OF AUTHORITIES – Continued

Page

Sherwin Broadhead, et al., Report on Federal,

State, and Tribal Jurisdiction: Final Report to

the American Indian Policy Review Commission 81-85 (U.S. Gov’t Printing Office 1976.)..........16

Statement of Bertram Hirsch, Association on

American Indian Affairs, 1974 Senate Hearings ..........................................................................13

UAII Seven Generations Child & Family Services, http://uaiisevengenerations.org (last

visited August 4, 2022) .............................................7

United American Indian Involvement, Inc.

http://uaii.org (last visited August 4, 2022) .............7

United States Census Bureau, 2020 Decennial

Census, Census Bureau Tables: Race All

Counties within United States and Puerto Rico

https://data.census.gov/cedsci/table?g=0100000

US%240500000&tid=DECENNIALPL2020.P1

(last visited June 27, 2022) ..................................... 2, 9

United States Environmental Protection Agency,

California Tribal Lands and Reservations

Map, https://www3.epa.gov/region9/air/maps/

ca_tribe.html (last updated December 2,

2021) .................................................................. 10, 15

Urban Indian Health Institute, Urban Indian

Health, https://www.uihi.org/urban-indian-health/

(last visited June 8, 2022) ......................................14

vii

TABLE OF AUTHORITIES – Continued

Page

Website of the Los Angeles County Department

of Children and Family Services, https://dcfs.

lacounty.gov/ (last visited July 22, 2022) .................2

Wilkinson & Biggs, The Evolution of the Termination Policy (1977) 5 Am. Indian L.Rev. 139,

142 ...........................................................................10

1

Nos. 21-376, 21-377, 21-378, 21-380

---------------------------------♦---------------------------------

In The

Supreme Court of the United States

---------------------------------♦--------------------------------DEB HAALAND, SECRETARY OF THE INTERIOR, ET AL.,

Petitioners,

v.

CHAD EVERET BRACKEEN, ET AL.

CHEROKEE NATION, ET AL.,

Petitioners,

v.

CHAD EVERET BRACKEEN, ET AL.

TEXAS,

Petitioner,

v.

DEB HAALAND, SECRETARY OF THE INTERIOR, ET AL.

CHAD EVERET BRACKEEN, ET AL.,

Petitioners,

v.

DEB HAALAND, SECRETARY OF THE INTERIOR, ET AL.

---------------------------------♦--------------------------------On Writs Of Certiorari To The United States

Court Of Appeals For The Fifth Circuit

---------------------------------♦--------------------------------BRIEF FOR LOS ANGELES COUNTY AS AMICUS

CURIAE SUPPORTING FEDERAL AND TRIBAL

PETITIONERS AND CROSS-RESPONDENTS

---------------------------------♦---------------------------------

2

INTEREST OF AMICUS CURIAE

The County of Los Angeles, through its Department of Children and Family Services, promotes child

safety and well-being by partnering with communities

to strengthen families, keeping children at home

whenever possible, and connecting them with stable,

loving homes in times of need.1 According to Census

Bureau estimates, Los Angeles County is home to more

than 163,000 American Indian and Alaska Native persons, more than any other county in the United

States.2

The Indian Child Welfare Act (ICWA) is vital to

promote the interests of Los Angeles County’s Indian

children. The ICWA was designed to preserve tribal

identity and to protect Indian tribes and families

whose ancestors were forcibly dispersed from their reservations.3 Despite Los Angeles County’s significant

American Indian and Alaska Native population, the

county does not have a single federally recognized Native American reservation within its borders.4 If this

Website of the Los Angeles County Department of Children

and Family Services, https://dcfs.lacounty.gov/ (last visited July

22, 2022).

2

United States Census Bureau, 2020 Decennial Census,

Census Bureau Tables: Race All Counties within United States

and Puerto Rico, https://data.census.gov/cedsci/table?g=0100000

US240500000&tid=DECENNIALPL2020.P1 (last visited June

27, 2022).

3

25 U.S.C. §§ 1901, 1902, 1915; Indian Child Welfare Act

Proceedings, 81 Fed. Reg. 38783 (June 14, 2016).

4

See Northern California Indian Development Council,

County List of Tribal Nations in California, https://www.ncidc.org/

1

3

Court finds the ICWA unconstitutional, the decision

will have a dramatic impact on Los Angeles County

and its duty to protect children and preserve familial

ties. By this amicus curiae brief, Los Angeles County

explains the impact of limiting the ICWA to only those

Indian children living on or near Indian reservations.

---------------------------------♦---------------------------------

SUMMARY

Congress’ power to enact statutes that carry out

its trust responsibility to Indian Tribes and their members is not limited to Indians living on or near reservations. (United States v. Holliday, 70 U.S. 407, 417-18

(1866).) Plaintiffs’ arguments to the contrary have no

support – neither in Congress’ practice, nor in this

Court’s jurisprudence.

The purpose of the ICWA is to protect Indian

tribes, whose members were forcibly dispersed from

their reservations to urban areas, and Indian children,

so they can preserve their tribal identities. Consistent

with this Court’s holding in Morton v. Mancari, 417

U.S. 535 (1974) – hiring preference for American Indians deemed constitutional because it applied only to

members of federally recognized tribes, a political, not

racial, classification – the ICWA’s definition of “Indian

child” and the child placement preferences, which also

hinge on membership or eligibility for membership in

county-list-tribal-nations-california (last visited June 27, 2022);

see also United States Environmental Protection Agency, California Tribal Lands and Reservations Map, https://www3.epa.gov/

region9/air/maps/ca_tribe.html (last updated December 2, 2021).

4

federally recognized tribes, are political designations

tethered to the federal recognition that Indian tribes

are sovereign entities, free to make their own membership determinations that do not require living on or

near tribal land.

Individual Petitioners and the State of Texas

(Plaintiffs) challenge the constitutionality of the

ICWA. Among their arguments is that the ICWA violates the Equal Protection Clause of the United States

Constitution because the definition of “Indian child”

and the child placement preferences are race-based

and do not meet the political classification in Morton v.

Mancari. Plaintiffs’ arguments lack merit.

If, as Plaintiffs contend, Morton v. Mancari were

limited to Indian children living on or near a reservation,

the ICWA’s purpose would be defeated in Los Angeles

County, which is home to the largest American Indian

and Alaska Native population of any county in the

United States, but does not have a single federally recognized Native American reservation within its borders.

---------------------------------♦---------------------------------

ARGUMENT

I.

THE ICWA IS AN INTEGRAL PART OF

CALIFORNIA’S JUVENILE DEPENDENCY

SCHEME AND IS VITAL TO PROMOTE

THE INTERESTS OF LOS ANGELES

COUNTY’S INDIAN CHILDREN.

The purpose of California juvenile dependency law

is “to provide protective services to the fullest extent

5

deemed necessary by the juvenile court . . . to insure

that the rights or physical, mental or moral welfare of

children are not violated or threatened by their present circumstances or environment.” (Welf. & Inst.

Code § 19; see also Seiser & Kumli, Seiser & Kumli On

California Juvenile Courts Practice and Procedure

§ 2.62[2] (2022) [“The purpose of the dependency process is to protect abused or neglected children and

those who are at risk of such abuse and neglect and to

provide stable, permanent homes to those children if

they cannot be returned to their home within a limited

period of time.”].)

“[T]he safety, protection, physical and emotional

well-being of dependent children is the primary goal of

the dependency system.” (Seiser & Kumli, Seiser &

Kumli On California Juvenile Courts Practice and Procedure § 2.11[1] (Matthew Bender 2017), citing Welf. &

Inst. Code §§ 202, 300.2, 361(c)(1), 361.2(a), 361.3(a)(8),

366.21(e).) Equally important, provided “it can be done

safely, is the public commitment to preserve families

and safeguard parents’ fundamental right to raise

their children.” (Seiser & Kumli, Seiser & Kumli On

California Juvenile Courts Practice and Procedure

§ 2.11[2] (Matthew Bender 2017), citing Welf. & Inst.

Code §§ 202, 300.2, 361.5(a).)

Consistent with these goals, the ICWA was enacted “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

6

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.” (25 U.S.C. § 1902.)

In a dependency proceeding, “when a child is removed from parents and reunification services are ordered [for the parents], permanency planning services

are concurrently implemented” so that “another permanent home will have already been planned for” if reunification efforts are unsuccessful. (Seiser & Kumli,

Seiser & Kumli On California Juvenile Courts Practice

and Procedure § 2.11[3] (Matthew Bender 2017).) It is

important that these permanent homes have the capacity to address all of the child’s unique needs.

To protect the unique interests of Indian tribes

and families, if the matter involves an Indian child,

there are additional requirements including placement preferences to promote familial and tribal preservation. (25 U.S.C. § 1901, § 1915; Seiser & Kumli,

Seiser & Kumli On California Juvenile Courts Practice

and Procedure § 2.125[1] (Matthew Bender 2017).)

Thus, the ICWA not only protects Indian tribes and

families, but furthers the purpose and goals of California’s dependency scheme.

California embraces the ICWA and has established its own, more stringent, guidelines.5 Senate Bill

California is one of many states that has enacted all or

part of ICWA into state law. (National Conference of State Legislatures, State Statutes Related to the Indian Child Welfare Act

(Nov. 12, 2019), https://www.ncsl.org/research/human-services/

5

7

678, or Cal-ICWA, was passed in 2006 “codif[ying] the

federal ICWA’s requirements into California Welfare &

Institutions code, Probate code and Family code[,]” and

“creating further safeguards[.]” (ICWA Compliance

Task Force Report to the California Attorney General’s

Bureau of Children’s Justice, 6-7, 2017.)

Moreover, in 1989, Los Angeles County, through its

Department of Children and Family Services (DCFS),

created the American Indian Unit to provide countywide vertical case management to ICWA-eligible children, as well as guidance and consultation to DCFS

regional offices on cases and referrals involving American Indian and Alaska Native children and families.

Consistent with the ICWA, when DCFS first receives a

referral for an Indian child, the family is immediately

connected to American Indian/Alaska Native service

providers to promote family preservation through inhome services and community outreach.6 If a juvenile

dependency action involving an American Indian or

Alaska Native family is initiated, the matter may be

transferred to the American Indian Unit, as well as the

juvenile courtroom designated to hear cases involving

state-statutes-related-to-indian-child-welfare.aspx#:~:text=Six%20

states%20(Iowa%2C%20Michigan%2C,child%22%20and%20the

%20notification%20requirements).

6

See DCFS Child Welfare Policy Website, Adopting and

Serving Children Under the Indian Child Welfare Act (ICWA),

http://policy.dcfs.lacounty.gov/Content/Indian_Child_Welfare_

Ac.htm#ICWA (revised July 1, 2014). See also United American

Indian Involvement, Inc. http://uaii.org (last visited August 4,

2022); UAII Seven Generations Child & Family Services,

http://uaiisevengenerations.org (last visited August 4, 2022).

8

the ICWA.7 These measures ensure not only ICWA

compliance, but promote the purpose of California juvenile dependency law by involving Tribes to work in

tandem with DCFS to address the unique needs of

American Indian and Alaska Native children and families by providing culturally based services and interventions and strengthening cultural identity and

connections.

A recent study showed improved reunification

rates from 48% to 53% and increased rates of placement with extended family from 18% to 28%, when

specialty state courts focused on ICWA compliance.

(Capacity Building Center for Courts, ICWA Baseline

Measures Project Findings Report 17 (2020),

https://tinyurl.com/spa68nm.)

As indicated earlier, given the significant Native

American population in Los Angeles County, it created

the American Indian Unit to “provide[ ] culturally appropriate, case management services to American Indian children and families Countywide under the legal

mandate of the [ICWA].”8 Historically, the American

See DCFS Child Welfare Policy Website, Adopting and

Serving Children Under the Indian Child Welfare Act (ICWA),

http://policy.dcfs.lacounty.gov/Content/Indian_Child_Welfare_

Ac.htm#ICWA (revised July 1, 2014). See also DCFS Child

Welfare Policy Website, Case Transfer Criteria and Procedures,

http://m.policy.dcfs.lacounty.gov/Src/Content/Case_Transfer_

Criteria_P.htm#AI (revised July 29, 2015).

8

Los Angeles County Department of Children and Family

Services, Specialized Programs, American Indian Unit, https://dcfs.

lacounty.gov/about/what-we-do/dcfs-specialized-programs/#:~:text=

7

9

Indian Unit has provided services to mostly children

from the Navajo Nation, Choctaw Nation of Oklahoma

and the Cherokee Nation of Oklahoma. Currently, the

largest represented tribes in the American Indian Unit

are the Navajo Nation (13%), the Muscogee (Creek)

Nation of Oklahoma (10%), the Chickasaw Nation

(9%), and the Choctaw Nation of Oklahoma (9%), all

located in other states.9

II.

THE HISTORY OF RELOCATION CONTRIBUTED TO THE ICWA’S NECESSITY,

AND THEREFORE, THE PURPOSE OF

THE ICWA WOULD BE DEFEATED IF IT

WERE LIMITED TO INDIAN CHILDREN

ON OR NEAR INDIAN LANDS.

The purpose of the ICWA would be defeated if it

applied to Indian tribes operating only on or near a

reservation because it would exclude residents of Los

Angeles County, home to the largest American Indian

and Alaska Native population of all counties in the

United States, but without a single federally recognized Native American tribe within its borders.10

The%20American%20Indian%20Unit%20provides,Public%20Law

%2095%2D608 (last visited July 22, 2022).

9

This information was provided by the American Indian

Unit of Los Angeles County’s Department of Children and Family

Services.

10

United States Census Bureau, 2020 Decennial Census,

Census Bureau Tables: Race All Counties within United States

and Puerto Rico, https://data.census.gov/cedsci/table?g=0100000

10

“[T]he fact that many Indians live off-reservation

is, in part, a result of past, now-repudiated Federal

policies encouraging Indian assimilation with nonIndians and, in some cases, terminating Tribes outright.” (Indian Child Welfare Act Proceedings, 81 Fed.

Reg. 38783 (June 14, 2016).) In 1887, Congress passed

the Indian General Allotment Act, 24 Stat. 388, codified at 25 U.S.C. 331 (1887) (repealed), authorizing the

United States to allot and sell Tribal lands to non-Indians and take the land out of trust status, often leading to “Tribal citizens dispersing from their

reservations.” (Indian Child Welfare Act Proceedings,

81 Fed. Reg. 38783 (June 14, 2016).) As a result, almost

two-thirds of the Indian land base passed out of Indian

hands; the tribes relinquished about 86,000,000 acres.

(Wilkinson & Biggs, The Evolution of the Termination

Policy (1977) 5 Am. Indian L.Rev. 139, 142.)

During the “termination era” of the 1950s, “Congress passed a series of acts severing its trust relationship with more than 100 Tribes,” who “lost not only

their land base but also myriad Federal services. . . . ,

including education, health care, housing, and emergency welfare. See Sioux Tribe of Indians v. United

States, 7 Cl. Ct. 468, 478 n. 8 (Cl. Ct. 1985) (describing

US%240500000&tid=DECENNIALPL2020.P1 (last visited June

27, 2022).

See Northern California Indian Development Council,

County List of Tribal Nations in California, https://www.ncidc.org/

county-list-tribal-nations-california (last visited June 27, 2022);

see also United States Environmental Protection Agency, California Tribal Lands and Reservations Map, https://www3.epa.gov/

region9/air/maps/ca_tribe.html (last updated December 2, 2021).

11

the termination policy).” (Indian Child Welfare Act

Proceedings, 81 Fed. Reg. 38783 (June 14, 2016).) Without “these basic services, which often did not otherwise

exist in rural Tribal communities, many Indians were

forced to move to urban areas.” (Indian Child Welfare

Act Proceedings, 81 Fed. Reg. 38783 (June 14, 2016).)

Subsequently, in 1956, the Relocation Act (Act of Aug.

3, 1956, Public Law 84-959, 70 Stat. 986) was passed

providing funds to young adult Indians to relocate

from on or near a reservation to a selected urban center. (Indian Child Welfare Act Proceedings, 81 Fed. Reg.

38783 (June 14, 2016).)

A December 1956 report published by the Association on American Indian Affairs, described the Relocation Program, conducted since 1952, as the Bureau

of Indian Affairs (BIA) providing “financial assistance

and limited social services to Indian individuals and

families for permanent removal from reservations.”

(La Verne Madigan, The American Indian Relocation

Program, at p. 3, Dec. 1956 (Association Report).) The

report indicated that by July 1, 1956, over 12,000

American Indians left their reservations to move to cities and an additional 10,000 were expected to relocate

by July 1, 1957. (Ibid.)

The BIA maintained relocation programs until the

mid-1970s. (Blackhawk, I Can Carry On From Here:

The Relocation of American Indians to Los Angeles

(Autumn 1995) 11 Wicazo Sa Rev. 16, 18.) The Relocation Office in Los Angeles opened in 1951. (La Verne

Madigan, The American Indian Relocation Program, at

pp. 3-5, Dec. 1956 (Association Report).) In the ensuing

12

20 years, the City of Los Angeles became home to

nearly 30,000 relocated individuals and/or families –

close to three times more than any other city. (Blackhawk, I Can Carry On From Here: The Relocation of

American Indians to Los Angeles (Autumn 1995) 11

Wicazo Sa Rev. 16-17.)

Even before the Relocation era, between 1900 and

1945, Los Angeles was a destination for American Indian migration and urbanization, resulting in significant numbers of American Indians moving off their

reservations. (Nicolas G. Rosenthal, Reimagining Indian Country: Native American Migration & Identity

in Twentieth Century Los Angeles, 34 (2012).) Harsh

reservation life and the dispossession of Native land

and resources led Indians to growing cities and towns.

(Nicolas G. Rosenthal, Reimagining Indian Country:

Native American Migration & Identity in Twentieth

Century Los Angeles, 38-39 with fn. to Shipek, Pushed

into the Rocks, 55-56; Hyer, “We Are Not Savages,” 12990.)

Consequently, Southern California became a site

for Indian migratory wage labor, but given how difficult the work could be, many Indian people ventured

away from tribal communities in search of better work

and living conditions. (Nicolas G. Rosenthal, Reimagining Indian Country: Native American Migration &

Identity in Twentieth Century Los Angeles, 43, 46-48.)

“Los Angeles exerted a strong pull on Indian migrants, with its rapid economic expansion and its proximity to Indian communities throughout the American

13

Southwest. Native people from Southern California

reservations saw new opportunities in the urban areas

and farmlands of the burgeoning region.” (Nicolas G.

Rosenthal, Reimagining Indian Country: Native American Migration & Identity in Twentieth Century Los

Angeles, 50.) During the early decades of the twentieth

century, Indians from outside California also moved to

Los Angeles, and their numbers increased gradually in

the years up to World War II. (Nicolas G. Rosenthal,

Reimagining Indian Country: Native American Migration & Identity in Twentieth Century Los Angeles, 53.)

Indian presence in Los Angeles increased during

the war due, in part, to the Sherman Institute, a federal boarding school in Riverside, California, founded

by the Office of Indian Affairs in 1902 as a governmentrun institution that emphasized “the Americanization

of Native peoples[.]” (Nicolas G. Rosenthal, Reimagining Indian Country: Native American Migration &

Identity in Twentieth Century Los Angeles, 65.)

“ICWA itself was enacted with Congress’ awareness that many Indians live off-reservation. [Citation,

fn. omitted.] The fact that an Indian does not live on a

reservation is not evidence of disassociation with his

or her Tribe.” (Indian Child Welfare Act Proceedings,

81 Fed. Reg. 38783 (June 14, 2016).) In fact, there was

a very high rate of state agencies placing Indian children in urban communities in states without reservations. (Statement of Bertram Hirsch, Association on

American Indian Affairs, 1974 Senate Hearings at 38.)

14

“[I]t is clear that Congress’ concern over the placement of Indian children in non-Indian homes was

based in part on evidence of the detrimental impact on

the children themselves of such placements outside

their culture. Congress determined to subject such

placements to the ICWA’s jurisdictional and other provisions, even in cases where the parents consented to

an adoption, because of concerns going beyond the

wishes of individual parents[,]” namely that “[r]emoval

of Indian children from their cultural setting seriously

impacts a long-term survival and has damaging social

and psychological impact on many individual Indian

children. Senate Report [No. 95-597], at 52 [1977].”

(Miss. Band of Choctaw Indians v. Holyfield, 490 U.S.

30, 49-50 (1989).)

“[A]pproximately 78% of American Indians live

outside of Indian country. . . .” (Indian Child Welfare

Act Proceedings, 81 Fed. Reg. 38782-83 (June 14,

2016).) Approximately 71%, or 7 out of 10, American

Indians and Alaska Natives live in urban areas. (Urban Indian Health Institute, Urban Indian Health,

https://www.uihi.org/urban-indian-health/ (last visited

June 8, 2022).)

Because of the historical backdrop, including

now-repudiated federal relocation laws, Los Angeles

County has the highest number of American Indian

and Alaska Native persons of any county in the United

15

States, without a single federally-recognized Native

American reservation within its borders.11

As such, Texas’ complaints about the reach of the

ICWA outside of Indian country intimates a myopic

view that Indian people choose to live far from reservations and tribal lands, ignoring centuries of federal

and state governmental policies of assimilation, termination, and relocation. (Brief for Petitioner the State

of Texas, 46-47.) The reality is American Indian and

Alaska Native peoples live on many different types of

land across the United States as a result of dispossession of tribal land and policies enforcing relocation.

In enacting the ICWA, Congress found “that an

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; and that the States,

exercising their recognized jurisdiction over Indian

child custody proceedings through administrative and

judicial bodies, have often failed to recognize the essential tribal relations of Indian people and the cultural

See Northern California Indian Development Council,

County List of Tribal Nations in California, https://www.ncidc.org/

county-list-tribal-nations-california (last visited June 27, 2022);

see also United States Environmental Protection Agency, California Tribal Lands and Reservations Map, https://www3.epa.gov/

region9/air/maps/ca_tribe.html (last updated December 2, 2021).

11

16

and social standards prevailing in Indian communities

and families.” (25 U.S.C. § 1901(4)-(5).)

In the years leading to the ICWA’s passage, studies found that “Native American children were approximately six to seven times as likely as non-native

children to be placed in foster care or adoptive homes;12

and, [a]pproximately 25-35% of all Native American

children were removed from their homes and placed in

foster care or adoptive homes, or institutions such as

boarding schools.”13 And, in California, “Native American children were more than eight times as likely as

non-native children to be placed in adoptive homes

[and] over 90% of California Native American children

subject to adoption were placed in non-native homes[.]”

(ICWA Compliance Task Force Report to the California

Attorney General’s Bureau of Children’s Justice, 5,

2017.)

Though compliance with the ICWA has helped in

lowering these statistics, there continues to be a disproportionate number of Native American children removed

from parental custody. (National Center for Juvenile

Justice, Disproportionality Rates for Children of Color

in Foster Care Dashboard (2010-2020), https://www.ncjj.

org/AFCARS/Disproportionality_Dashboard.asp?selYear=

2020&selState=California&selDisplay=2 (last visited

July 22, 2022).) As such, ICWA and its purpose remain

Sherwin Broadhead, et al., Report on Federal, State, and

Tribal Jurisdiction: Final Report to the American Indian Policy

Review Commission 81-85 (U.S. Gov’t Printing Office 1976).

13

H.R. Rep. 95-1386, 1978 U.S.C.C.A.N. 7530, 7531.

12

17

vital to promote the stability and security of Indian

tribes and families. (25 U.S.C. § 1902.) Importantly,

noncompliance with the ICWA, “contributes to the disproportionality and disparity that Native Americans

in foster care experience.” (Lead Article: Racial Bias In

American Foster Care: The National Debate, 97 Marq.

L. Rev. 215.)

“The overriding duty of our Federal Government

to deal fairly with Indians wherever located has been

recognized by this Court on many occasions. See, e.g.,

Seminole Nation v. United States, 316 U.S. 286, 296

(1942); Board of County Comm’rs v. Seber, 318 U.S. 705

(1943).” Morton v. Ruiz, 415 U.S. 199, 236 (1974).) Limiting the ICWA’s application to Indian children living

on or near reservations offends this duty as well as the

wellbeing of Indian children.

III. THE ICWA’S DEFINITION OF “INDIAN

CHILD” AND ITS CHILD PLACEMENT

PREFERENCES ARE POLITICAL DESIGNATIONS AND PROMOTE SELF-GOVERNANCE BY SOVEREIGN TRIBAL NATIONS.

In United States v. Holliday, this Court rejected

the argument that application of a federal law affecting Indian persons had to be limited to Indian land.

Rather, the federal government’s authority to pass

laws relating to Native Americans is derived from the

Constitution and power to enact treaties with sovereign nations. (United States v. Holliday, 70 U.S. 407

(1866).)

18

Similarly, in Morton v. Mancari, this Court held

the preference for hiring qualified Indians was

“granted to Indians not as a discrete racial group, but,

rather, as members of quasi-sovereign tribal entities

whose lives and activities are governed by the BIA in

a unique fashion. In the sense that there is no other

group of people favored in this manner, the legal status

of the BIA is truly sui generis. . . .” (Id. at p. 554, n. 24.)

The preference for hiring Indians within the BIA did

not constitute “racial discrimination” or a “racial” preference, but was political in nature because it applied

only to members of “federally recognized” tribes. (Id. at

pp. 548-551, 553-554, n. 24.)

Thus, Plaintiffs’ argument that the ICWA violates

the Equal Protection Clause of the United States

Constitution because the ICWA’s definition of “Indian

child” and its child placement preferences are racebased, is without merit. (Brief for Individual Petitioners 26; Brief for Petitioner the State of Texas 44-46.)

These claims are contrary to this Court’s prior holdings.

The Mancari Court stated the purpose of the Indian hiring preference at issue was “to give Indians a

greater participation in their own self-government; to

further the Government’s trust obligation toward the

Indian tribes; and to reduce the negative effect of having non-Indians administer matters that affect Indian

tribal life.” (Morton v. Mancari, supra, 417 U.S. at pp.

537-538, 541-542.)

19

Like the Indian preference in Morton v. Mancari,

the ICWA’s definition of “Indian child” is political because it hinges on tribal membership or eligibility for

tribal membership. (25 U.S.C. § 1903(4).) The Congressional findings pertaining to the ICWA state, “. . . . 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[.]” (25 U.S.C.

§ 1901.) An “Indian child” to whom the ICWA applies

is defined as an unmarried child who “is either (a) a

member of an Indian tribe or (b) is eligible for membership in an Indian tribe and is the biological child of a

member of an Indian tribe.” (25 U.S.C. § 1903(4).) Similarly, the ICWA’s child placement preferences were

devised to promote self-government. In enacting the

ICWA, Congress “assumed the responsibility for the

protection and preservation of Indian tribes and their

resources[.]” (25 U.S.C. § 1901(2).)

Plaintiffs’ reliance on Rice v. Cayetano, 528 U.S.

495 (2000), to argue that the ICWA makes a racial

classification, is misplaced. (Brief for Individual Petitioners 28-29, 31-32; Brief for Petitioner the State of

Texas 42, 46.) Indeed, the Rice v. Cayetano holding reenforces Congress’ power to enact laws affecting members of federally recognized tribes as citizens of sovereign nations.

In Rice v. Cayetano, 528 U.S. 495 (2000), the petitioner was a citizen of Hawaii whose application to register to vote in the elections for the Office of Hawaiian

Affairs (OHA) trustees was denied because he was

not a “native Hawaiian” or “Hawaiian” as defined by

20

statute. (Id. at p. 510.) The State of Hawaii justified its

voting law restriction by comparing it to “cases allowing the differential treatment of certain members of

Indian tribes.” (Rice v. Cayetano, supra, 528 U.S. p.

518.) This Court disagreed, stating, “If a non-Indian

lacks a right to vote in tribal elections, it is for the

reason that such elections are the internal affair of a

quasi-sovereign. The OHA elections, by contrast, are

the affair of the State of Hawaii. OHA is a state agency,

established by the State Constitution, responsible for

the administration of state laws and obligations.” (Rice

v. Cayetano, supra, 528 U.S. p. 520.) This Court concluded that because OHA trustee elections are elections of the State, they are governed by the Fifteenth

Amendment. (Rice v. Cayetano, supra, 528 U.S. p.

522.)

Unlike Hawaii’s voting law, the ICWA is a federal

law that applies to children who are members of a federally recognized Indian tribe or who are eligible for

membership and have a parent who is a tribe member.

(25 U.S.C. § 1903(4).) Congress enacted the ICWA, in

part, because “States . . . have often failed to recognize

the essential tribal relations of Indian people and the

cultural and social standards prevailing in Indian communities and families.” (25 U.S.C. § 1901(5).) “[A]n estimated 25 to 35 percent of all Indian children had

been separated from their families and placed in adoptive homes, foster care, or institutions. H.R. Rep. No.

95-1386, at 9 (1978), reprinted in 1978 U.S.C.C.A.N.

7530, 7531. Although the crisis flowed from multiple

causes, Congress found that nontribal public and

21

private agencies had played a significant role, and that

state agencies and courts had often failed to recognize

the essential tribal relations of Indian people and the

cultural and social standards prevailing in Indian communities and families. 25 U.S.C. 1901(4)-(5).” (Indian

Child Welfare Act Proceedings, 81 Fed. Reg. 38779

(June 14, 2016).)

---------------------------------♦---------------------------------

CONCLUSION

Limiting the Morton v. Mancari holding to members of tribes living on or near Indian lands frustrates

the purpose of the ICWA, which was designed to protect Indian tribes and families. Because of now repudiated federal law and policies, like relocation, Los

Angeles County is home to the largest American Indian and Alaska Native population of any county in

the United States, yet does not have a single federally

recognized Native American reservation within its

borders. Los Angeles County’s Indian children should

not be excluded from the ICWA.

Further, ICWA’s definition of “Indian child” hinges

on tribal membership – the child’s or the parent’s – and

thus is a political, not a racial, classification. Likewise,

ICWA’s placement preferences promote self-government of Indian tribes and their children as well as the

welfare of Indian children by fostering cultural identity and connections. Thus, the ICWA is vital to Los

22

Angeles’ child-welfare scheme in protecting our Indian

children.

Respectfully submitted,

OFFICE OF THE COUNTY COUNSEL OF

LOS ANGELES

DAWYN R. HARRISON

Acting County Counsel

KIM NEMOY

Assistant County Counsel

MELANIA VARTANIAN, Counsel of Record

Deputy County Counsel

500 W. Temple Street, Suite 648

Los Angeles, California 90012

Telephone: (213) 808-8777

Email: mvartanian@counsel.lacounty.gov

Counsel for Amicus Curiae the County of

Los Angeles

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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