Last week, the Washington Supreme Court decided In re Dependency of G.J.A., involving the Indian Child Welfare Act (ICWA) and the Washington equivalent (WICWA). The opinion is remarkable for a number of reasons. I tweeted about some of those reasons last week. For this post, I wanted to focus on something we hear a lot about and is the title of this blog post: why diverse voices on the bench matter.
In this case, the court held the state wasn’t using “active efforts” to reunify G.J.A. with his mother and reversed the lower court’s decision to terminate the parental rights of G.J.A.’s mother. This 9-0 opinion, authored by Justice Raquel Montoya-Lewis, an enrolled member of the Pueblo of Isleta, is notable for all the historical, cultural, and legal context it provides in explaining the decision for the court. As I said in my tweets last week, this wasn’t just a “here’s the statute and here’s how we interpret it” kind of case. This opinion goes further to explaining why the policy exists in the first place and how the historical traumatic treatment of Native populations impact tribes and their members today. She provides a richness and context to an opinion that could’ve easily been a dry statutory interpretation opinion.
Her analysis begins with a historical look at Congress’ adoption of the ICWA, which was designed to address the abusive practice of removing Native children from their families and tribes. At the time, Congress found that a significant percentage of Indian families are broken up by the removal of their children who were then placed in non-Indian foster and adoptive homes. This resulted in “profound losses” to Native communities and tribes and threatened the continued existence of the tribes. ICWA and WICWA imposed minimum requirements to protect the rights of Indian families and preserve tribal sovereignty.
As Justice Montoya-Lewis explains, the minimum standards require culturally appropriate engagement with the Indian family and deference to the tribe at each step of the dependency. (“Dependency” is what we call the legal process the state goes through leading up to and including termination of parental rights.) There are heightened protections for Indian families, including clear notice provisions; tribal rights to intervention and exercise of jurisdiction; and heightened standards for removal, placement, and termination.
To comply with ICWA and WICWA, the state has the burden to show it provided “active efforts” that were thorough, timely, consistent, and culturally appropriate. In other words, the state has to do everything possible to keep Native children with their family or tribe in a way that wouldn’t be required for children of non-Indian families.
The opinion pointed out all the ways the state failed to live up to its obligations. But it was especially critical of its failure to show the services provided by the state were culturally appropriate. On page 35-36, she details all the ways the state failed to meet its burden in that regard.
Then she goes on to explain (page 36-37) why the state’s burden to provide culturally appropriate services. And this is where I think her experiences and insight are especially valuable. She explains that in practice tribes often lack the skills or resources to actively participate in child welfare cases. As a result, some tribes wait to step into a case until termination petitions have been filed. Often, tribal attorneys and child welfare staff lack a consistent source of financial stability. To provides resources to a child in these types of cases requires special funding from the tribe. Some tribes can afford to do this but many others cannot. As a result, many tribes are required to conserve resources which means they can’t actively engage until the very end.
She links the historical treatment of the tribes to their current lack of financial resources, noting that a tribe’s failure to respond until late in the process cannot be a reason to relieve the state of its responsibilities. Rather, as she suggests, it is another reason to require the heightened standards under ICWA and WICWA. This is a key point that Justice Montoya-Lewis is especially able to articulate well.
Justice Montoya-Lewis also goes out of her way to explain why a Native parent’s inability or unwillingness to engage with the state during the dependency process may be attributable to factors that cannot be used as reasons to justify termination, including cultural differences, poverty, or generational trauma. Accordingly, the courts cannot excuse the state’s inactions because of a Native parent’s lack of engagement. She points to the extensive evidence in the Congressional record when ICWA was enacted demonstrating the poverty was often used as an excuse to take away Native children from their parents.
She quotes an especially compelling part of the Congressional record (page 41):
“Ironically, tribes that were forced onto reservations at gunpoint and prohibited from leaving without a permit, are now being told that they live in a place unfit for raising their children.”
She also notes that the disproportionately high levels of poverty in Native communities frequently create barriers to engagement. For example, lack of reliable transportation, housing stability, or reliable methods of communication can make it difficult for a parent to communicate with the state and providers they’ve been referred to.
Housing instability in particular creates barriers because that parent must expend time and energy securing a safe place to sleep each night, and the stress and trauma of that experience makes it difficult to complete other tasks. Native women also face an increased risk of intimate partner violence. The state is required to assist a parent in overcoming these barriers. Not use them to show the parent is unfit.
Justice Montoya-Lewis also explains how generational trauma plays a role in the relationship between Native communities and the government. Native communities have developed a unique and deeply-embedded sense of distrust for social workers. Rather than trying to understand that generational trauma and mistrust, the system often uses that reticence to engage as evidence the parent is not committed or willing to do with it takes to get their children back. Therefore, to be deemed culturally appropriate, the state must be cognizant of Native families’ distrust of government actors due to centuries of abuse.
More than any other Justice on the court, she is able to give life to this case and provide a compelling explanation of why the law is the way it is and how native communities have been impacted. Which isn’t to say some other justice wouldn’t have also issued a well-written opinion. But she provides key context because of her own background, experiences, and study of these issues.
One other interesting note. Toward the end of the opinion, she includes what I like to call the “Nothing to see here, US Supreme Court!” portion of the opinion. In Section C, starting on page 49, entitled “WICWA Provides an Equal and Alternative Basis for Reversal,” the court basically explains why even if ICWA doesn’t require “active efforts” in the way the court laid out, WICWA does. So for purposes of this case, WICWA provides its own independent basis for reversal.
The US Supreme Court can interpret ICWA and reverse the court’s decision on that basis, but it cannot do the same for the court’s interpretation of WICWA. The US Supreme Court is very very very unlikely to review a case like this that it cannot impact the ultimate outcome. Gotta love those adequate and independent state grounds!