PASCUA YAQUI INDIAN RESERVATION, Ariz. — Victor Cortez was just 5 months old when he was brought here from California by a tribal social worker, who placed the baby in the care of a relative after his mother was jailed for drug trafficking. Today, 16 and soft-spoken, Victor is a rising star among the Pascua Yaquis’ traditional dancers and is still living with that guardian, the only mother he’s ever known.
Victor is also known as an “ICWA kid,” a label that includes a familiar acronym here — one that refers to a landmark Indian law whose fate is on the line at the U.S. Supreme Court on Wednesday. The Indian Child Welfare Act governs foster care and adoptions involving Native American children, prioritizing placing them with relatives, fellow tribal members or in other Native homes.
“The culture that we do here — I’m just glad I’m in it,” Victor said. “It’s a blessing.”
The law passed unanimously in 1978 to help rectify what Congress then called “the most tragic and destructive aspect of American Indian life today”: the widespread and sometimes forced removal of Native children to boarding schools and families with no links to their tribes. Tribes’ existence, Congress asserted, depended on their children.
Now, in a case that originated over the adoption of a Native boy by a White Texas couple, seven individuals and Texas are asking the court to strike down the law, which they say discriminates on the basis of race and unconstitutionally requires states to enforce federal law. Defending the act are the Biden administration and five tribes, including the Cherokee and Navajo, which argue that the law is tied to tribal membership — a political, not racial, category.
The case, Haaland v. Brackeen, is being watched with anxiety throughout Indian Country, where many expect the conservative high court to overturn the law in whole or in part. Depending on the grounds, legal experts say, the ruling could have far-reaching implications that undermine tribal sovereignty and federal laws related to Indian gaming, fishing rights and other matters.
“If the plaintiffs win, it is an earthquake,” said Dan Lewerenz, an assistant professor at the University of North Dakota law school, an attorney with the Native American Rights Fund, and a member of the Iowa Tribe of Kansas and Nebraska. “The reverberations will be felt in all areas of law.”
The act, the plaintiffs argue in a court filing, puts “‘Indian children’ in a disfavored position, depriving them of a placement decision based on their best interests, and instead requiring placements” based on the child’s biology. Non-Indian adoptive parents end up “last in line to adopt an Indian child,” the filing said.
The Pascua Yaqui reservation, a 3.4-square-mile stretch where southwest Tucson strip malls give way to saguaros, offers a glimpse of what tribes say is at stake. Here, the Supreme Court battle feels at once urgent and removed, a distant academic argument that could upend a day-to-day practice that the tribe has made a central mission.
The Pascua Yaqui have built an entire infrastructure around ICWA, or “ICK-wah,” which gives tribes the right to intervene in cases involving children who are members or eligible to be members and don’t live on the reservation. About one-quarter of the tribe’s 22,000 members live on the reservation, where custody proceedings are handled by a tribal court.
Over the past six years, the tribe’s attorney general has used federal funding to build out a staff of three ICWA attorneys and three other employees devoted to the cases. When a state notifies the office about a removed child who might be a member, a paralegal quickly orders a family tree, based on tribal enrollment, to identify kin who could provide a home. The tribe’s social services department has four ICWA social workers who traverse Arizona, and sometimes beyond, to visit kids and families involved in cases.
The expanded staff allows a tribal representative to be present at every state court hearing, attorneys said. Two years ago, the Pascua Yaqui worked with the Pima County state court to establish an ICWA-specific court, one of 17 nationwide. It serves 11 tribes.
The reason for the tribe’s focus on these cases is simple, Pascua Yaqui Chairman Peter Yucupicio said. Children are the future of a small tribe that was not federally recognized until 1978, he said — and the tribe, he added, is their heritage.
“You start losing who you are. You start assimilating into the general population,” Yucupicio said of children disconnected from their tribes. “Then someday they’re going to wake up and say: ‘I’m tribal. How do I get back to being tribal? That’s what I was supposed to be.’”
The ‘gold standard’
When the Indian Child Welfare Act passed, studies showed that 25 to 35 percent of Native children were being removed from their parents for foster care or adoption, and that upward of 85 percent of placements were in non-Native homes.
Researchers found that social workers rarely removed children for abuse, a congressional report said, but rather because they equated Indians’ disproportionate poverty with neglect, and caretaking by extended family — common in Native communities — with parental abandonment.
That still happens, Alfred Urbina, the Pascua Yaqui attorney general, said as he drove around the reservation’s quiet streets on a recent evening, past the construction of sleek homes that he said were also aimed at stabilizing families by helping address a dire housing shortage. Urbina said he has consulted on ICWA issues with the neighboring Tohono O’odham Nation, whose vast reservation, he said, includes some houses with dirt floors.
“Just because there’s a dirt floor doesn’t mean that’s a neglectful situation,” Urbina said. “But a state court judge will refuse to place them out there even though there’s a loving grandparent.”
Over time, the philosophy behind ICWA has come to be known as the “gold standard” in child welfare practices nationally.
“Policies within the United States, from federal down to state governments, in the last two decades have moved toward favoring family placements and kinship placements over others in all circumstances, not just with Native children,” said Barbara Atwood, a University of Arizona law professor and an expert on the act.
The Pascua Yaqui Tribe says its focus has borne results, speeding placements with relatives and keeping families together. The tribe typically intervenes in cases within three days, down from 10 in 2006. In 2009, 18 percent of its ICWA cases closed with children and parents reunified — the top goal. In 2021, 49 percent did. Between 2016 and 2020, children have been placed with tribal members in 91 percent of cases, Urbina said.
But the tribe insists it is not rigid: If a nontribal placement is best for a child, attorneys said, they go with it but strive to cultivate cultural connections. One open case, they said, involves a 16-year-old Yaqui girl in Oregon being adopted by a non-Native family. Recently, Oregon flew her to the reservation, where she met with a man she had learned was her uncle: Yucupicio, the chairman.
‘Saved’ by community
As the law has come under threat, Urbina said, more Yaquis have emerged to defend it. At an ICWA conference hosted by the tribe in the spring, two Army veterans tearfully divulged to the crowd that they were foster father and son.
“This community, that’s what saved me,” said the son, Augustine Lopez, 47. Lopez said hewas taken from his mother, a drug addict, as an adolescent in Tucson and placed on the reservation with Alex Alvarez, a behavioral health counselor.
Rosa Soto Alvarez, 46, and her three siblings were removed as small children from their mother in Tucson. At first, she was separated from her siblings and placed in a non-Native home. After a social worker realized the children were Yaqui, a Yaqui couple became permanent guardians to them all. They later moved to the reservation, and Soto Alvarez, a former tribal councilwoman, winces at the alternative.
“I would have been raised without my siblings. Without knowing that I was Yaqui,” she said. “Away from people that know my family.”
Many Yaquis are devout practitioners of a form of Catholicism tinged with touches of pre-Columbian practices. On Nov. 2, All Souls Day, the reservation cemetery filled with families sitting near the graves of ancestors whose spirits they believe were departing after visiting during October.
Soto Alvarez had prepared her late loved ones’ favorite foods as offerings — enchiladas for her foster mother, chocolate cake for her brother — and taken them to the cemetery, where she plans to be buried between them. One row over were the graves of her birth mother and birth grandmother. All around were people she greeted.
“I like to say I’m related to just about everybody, through blood or ceremony,” Soto Alvarez said.
Briefs supporting the Indian Child Welfare Act have been submitted by nearly 500 tribes, tribal law scholars, the American Medical Association, and child welfare and adoption organizations, among others. Two dozen state attorneys general, including Arizona’s, warn that invalidating the statute “could force States and Tribes to start from scratch.”
Some states, including New Mexico this year, have adopted state ICWA statutes that experts say would protect existing practices if the Supreme Court struck down the federal law on grounds that it “commandeers” states.
Arizona has not. But in August, its Department of Child Safety signed an agreement with the Pascua Yaqui to continue to prioritize keeping Yaqui children with family or other tribal members, “regardless of federal protections,” DCS Director Mike Faust said at the signing. The Navajo Nation has a similar agreement with Arizona.
That provides a measure of comfort, Urbina said. He feels confident the Pascua Yaquis’ solid ICWA program could pivot if the federal law is struck down. The same might not be true for tribes that lack such resources for their child welfare systems.
But there are concerns. The tribe could seek to transfer all state cases to tribal court, where it would have exclusive jurisdiction, he said — but triple its caseload. If ICWA dies, the tribe would have no right to be notified when Yaqui children are removed in states other than Arizona.
Arizona on Tuesday will also elect a new governor who could approach Native American relations differently. But governors come and go, Yucupicio said, as do court decisions.
“Whatever force we’ve had for 500 years of colonization, that has sustained us,” he said. “So it’s not going to be a Supreme Court case that takes it away.”
Victor, the young dancer — also a high school student and baseball player — practices his craft three times a week. He said he was hooked when he first saw ceremonial dancing as a toddler, and his skills are now in high demand at tribal events.
He ended up here because his mother was Yaqui, and ICWA required California to notify the tribe when he was removed from her care. Tony Sanchez, a longtime Pascua Yaqui ICWA social worker, flew with the infant to Arizona — not the first time he had retrieved a Yaqui baby. “They used to call me ‘the stork,’” he said.
In Arizona, tribal social workers turned to Vicky Humo, 67, a distant aunt and reliable foster parent.
At first, Humo recalled, state social workers were concerned that she already had several foster children in her home. But the tribe’s ICWA attorney at the time, she said, made a persuasive argument.
“She said: There’s no such thing as too many kids in an Indian home,” Humo said.
A previous version of this article incorrectly said three states are plaintiffs in Haaland v. Brackeen. While Indiana and Louisiana were parties in lower-court cases, Texas is the only state challenging the Indian Child Welfare Act at the U.S. Supreme Court. The article has been corrected.