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.