New Nevada law, SCOTUS ruling support goal of keeping Native children with their tribe

Tabitha Mueller
Tabitha Mueller
Carly Sauvageau
Carly Sauvageau
LegislatureTribal Nations
Students participate in an Indigenous People’s Day assembly and walk on Monday, Oct. 11, 2021 at Schurz Elementary School. The school is located on the Walker River Paiute Reservation. (David Calvert/The Nevada Independent).

Just three days before the U.S. Supreme Court defied predictions Thursday by upholding the Indian Child Welfare Act, Republican Gov. Joe Lombardo signed a measure codifying the act into state law, making it more likely that Native American children removed from their homes stay within their community.

Assemblywoman Shea Backus (D-Las Vegas) introduced the measure, AB444, in response to a legal challenge of the Indian Child Welfare Act. If the challenge had been successful, it would have removed federal safeguards requiring Native American children and families receive services to alleviate the need to remove a child from their family and stipulating that if a child has to be removed from their immediate family, they be placed under the care of an extended family member.

If staying with family isn't an option, the act ensures the child is placed with a family of their same tribe. 

“Incorporating the ICWA into state law will help to address historical injustices and trauma experienced by Native American communities in Nevada and across the country,” Backus said during the bill’s first hearing in April, pointing to historical practices of sending Native children to boarding schools.

Both houses of the Legislature approved AB444 unanimously and the governor signed the bill Monday. 

The federal legal challenge of the act, mounted by the state of Texas, claimed the ICWA violated the Constitution because the act "mandates racial and ethnic preferences” and imposed a mandate on what should be a state-regulated issue. The case Texas brought to court came on behalf of Chad and Jennifer Brackeen, along with other non-Native prospective adoptive couples, and made its way up to the U.S. Supreme Court.

Kostan R. Lathouris — an attorney who is an elected tribal council member of the Chemehuevi Indian Tribe and chair of the Nevada Indian Commission — said in an email to The Nevada Independent that Thursday’s Supreme Court decision reflects the reality that “families should not be needlessly broken up.”

“Children should only be removed from their parents if there is a real justifiable reason to do so,” Lathouris wrote. “I also believe that most people would agree that a nation has a strong interest in protecting its citizens — especially children.”

The federal government enacted the Indian Child Welfare Act in 1978. Federal lawmakers designed the act to address the consequences of state child welfare and adoption agencies separating between an estimated 25 percent and 30 percent of Native children from their families during the 1950s, 1960s and 1970s, with 85 percent of Native children placed outside their families and communities.

In his concurring opinion on the Supreme Court decision, Justice Neil Gorsuch wrote that the practices in the mid- to late 1900s were the “latest iteration of a much older policy of removing Indian children from their families — one initially spearheaded by federal officials with the aid of their state counterparts.”

“The dissolution of the Indian family has had devastating effects on children and parents alike. It has also presented an existential threat to the continued vitality of Tribes — something many federal and state officials over the years saw as a feature, not as a flaw,” Gorsuch wrote. “This is the story of ICWA.”

Lathouris, who has represented different tribes in various state court ICWA proceedings, said he was never removed from his family, but his grandmother was removed and placed in a boarding school. Without her, Lathouris said, he would not be the person he is today.

Each tribe is its own respective nation with its own customs, traditions and cultures, Lathouris added, noting that it’s rewarding for a person to know where they came from, who their people are and the stories of their ancestors.

“I have seen ICWA protect the ability of tribes to make sure that children are not unnecessarily removed from their families — which are often the main source of finding out so much about your culture,” he said.

As written, the federal legislation’s intent was to “protect the best interests of Indian children and to promote the stability and security of Indian tribes and families.”

Though the Supreme Court upheld the act, the body did not weigh in on whether the law discriminates based on race, saying Texas and the prospective adoptive parents did not suffer “concrete harm.”

“The bottom line is that we reject all of petitioners’ challenges to the statute, some on the merits and others for lack of standing,” Justice Amy Coney Barrett wrote in the court’s majority opinion.

Lathouris said that while Native Americans are a socio-cultural group, they are also members of sovereign nations, and a federally recognized tribe is a domestic dependent nation. That means tribes have their own laws and rights that the federal government recognizes.

"ICWA does not apply just because a child has an Indian ancestor. It’s not based on race. It’s based on a political connection that the child must have with a tribal nation," Lathouris said.

The Supreme Court repeatedly cited the principle of sovereignty in the Brackeen case. Lathouris said the Supreme Court upholding ICWA ensures the continued protection of tribes' culture, tradition and community.

"Tribes are sovereign nations, and, like other nations, the children represent the future of those nations," Lathouris said. 

In a statement Thursday, Sen. Catherine Cortez Masto, a member of the Senate Indian Affairs Committee, called the Supreme Court decision “critical” for tribal sovereignty and the protection of Native American children across the state and country. Sixteen tribes in Nevada, along with Cortez Masto, submitted an amicus brief urging the Supreme Court to uphold the ICWA.

“I have consistently spoken out in favor of protecting the Indian Child Welfare Act to keep Native families together,” Cortez Masto said. “I’m pleased to see this law upheld, and I will continue working to protect Native communities.” 

This story was corrected at 9:39 a.m. on Friday, June 16, 2023, to indicate tribes are recognized as domestic dependent nations.


Featured Videos