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Court case challenges how Indian Child Welfare Act could apply in Washington

Aug 4, 2020

Scott Greer plays with his two sons Michael and Zacharia. In 2018, the boys were placed in foster care because of concerns over neglect. Greer and his fiancée, Lindsay Graham, are currently invoking their rights under the state's Indian Child Welfare Act to ask a Washington court to return the children. (Photo courtesy Scott Greer)

In Washington State Supreme Court, an Alaska Native Tribe and others are challenging a decision in a child custody case

According to court documents, in June of 2018, authorities took two young brothers -- Zacharia, who was just 21 months old, and Michel, two months old -- from a Washington, home, and put them into protective custody. In the report, the police cite “concerns of neglect or unsanitary living conditions.” 

That sparked a legal battle led largely by the parents fighting for custody of their children, an Alaska-based federally recognized Tribe and Tribal advocates. 

The parents are Scott Greer and Lindsay Graham. Greer grew up on the Umatilla Indian Reservation, which sits mostly within the border of Oregon and partially in Washington. He said he grew up close to Native culture, learning from relatives about making bows and arrowheads, and fishing by hand. 

Graham grew up in Alaska: Her mother is a member of the Central Council of Tlingit and Haida Indian Tribes of Alaska and taught her a variety of things, like how to make beaded blankets. 

The two now live together in Auburn. 

For decades before Congress passed the Indian Child Welfare Act, or ICWA, in 1978, Native children in the U.S. were placed outside their homes and communities, according to testimony before Congress, even in cases when fit and willing family members were available. These children were often forced to assimilate with white, Euro-American-centric culture. 

While ICWA created a variety of protections for Native kids, one of its main points is this: qualifying Native children can’t be placed in foster care without looping in their Tribe or Tribes. The law also requires that these children be placed with family members -- a cousin, an uncle, a grandma -- whenever possible, thereby keeping them connected to their culture. 

In order to apply ICWA at all, a court has to find a “reason to know” -- basically, something suggesting a link to a Tribe -- that a child is legally “Indian,” which is the legal term indicating that a person is Alaska Native or American Indian. Once they find that reason to know, they reach out to relevant Tribes to learn more about the potential relationship.

But “reason to know” isn’t always easy for courts to consistently define.  

Both Greer and Graham told the court about their Native heritage.

Court documents acknowledge Greer’s ties to the Confederated Tribes of the Umatilla, and Graham as “eligible for membership with Klawock Cooperative Association,” a Tribe in Southeast Alaska. At the time, she didn’t know she was a Tlingit and Haida member.

But a judge ruled there wasn’t enough of a “reason to know” the children were Native under the law -- and so ICWA wasn’t applied. 

Kathryn Fort is the director of Michigan State’s Indian Law Clinic and is arguing on behalf of the Tribes in the case involving Greer and Graham.

“To find no ‘reason to know’ there are Indian children involved when you’re literally looking at Indian people in the courtroom -- it makes no sense,” she said.

But a month later, the Central Council of Tlingit and Haida Indian Tribes of Alaska successfully intervened -- the Tribe explained that even though she didn’t know it, Graham had been a Tlingit and Haida Tribal member all her life. 

“Providing notice is a very low administrative burden," Fort said. "The burden is incredibly low but the outcome has immense implications for the family, the children and the Tribe. We still are not sure why the state is fighting this as hard as they are, given that all we’re asking is there to be notice sent when there’s indication that there’s an Indian child at the earliest possible moment in the proceedings. And in this case that earliest possible moment was at the 72-hour hearing.”

Upon the intervention of the Tribal advocates, the Indian Child Welfare Act was then applied to this case.

But the damage was done.

The state placed the children in foster care -- without the normal protections that ICWA would offer them.

Now, the Tlingit and Haida Indian Tribes of Alaska are challenging the decision in Washington State Supreme Court. 

During a June 26th hearing before the Washington Supreme Court -- an attorney for Washington’s Department of Children, Youth and Families said the issue was with Greer and Graham’s description of their Tribal affiliation. 

The parents indicated potential heritage or ancestry, he said, which would be enough to suggest that they had Native blood. But he argued that it did not indicate a political affiliation with the Tribes, which is what ICWA requires to apply. 

That’s a huge sticking point for Madeline Soboleff-Levy, an attorney representing Tlingit and Haida in the case.

“You’re asking the very people ICWA was designed to protect to come up with magic words to get ICWA to apply,” she said.

If upheld, family and Tribal advocates say that the court’s decision could significantly weaken the use of ICWA in Washington -- and possibly set a precedent for other states -- by raising the bar for what qualifies as a “reason to know” that a child is Native in the eyes of the law.

Maintaining a family’s cultural connection can have far-reaching benefits, which is why this case is so important to the Central Council of Tlingit and Haida Indian Tribes of Alaska, as well as other Tribes across the continent.

“A Tribe’s very existence is dependent on having future citizens,” Soboleff-Levy said. “The Tribes’ existence as a cultural entity and sovereign government depends on those citizens having connections with their community, and having a sense of who they are.”

Even though the status of Michael and Zacharia as Native children was proven a month after the first hearing -- the boys stayed in foster care for almost a year. 

In May 2019, they were placed with their grandmother, where they remain today. Greer and Graham continue to work toward moving the children back home with them. 

Greer wonders whether his kids’ lives would have been different if they were placed with their grandmother first. He says that would have been a huge improvement from his perspective. 

Greer had only just started talking about crafting bows and other traditions with his older son, Zacharia, now 3-years old, before he was placed in foster care.

Greer continues  conversations about these traditions with Zacharia -- but foster care has changed their relationship.

“What kills (Graham) and me is knowing that he couldn’t go 10 minutes without mom and dad -- unless he was with grandma,” Greer said about Zacharia. “Then all of a sudden a bunch of strangers come and take him away. There’s no existence of family anymore, not anybody that he knows. When it was time for him to go, still to this day, he screams and fights that he doesn’t want to go. And we have to make our baby go every time.” 

Attorneys expect a decision in the case within the next few months. But even if it ends in the Tribes’ favor, experts say the debate over ICWA won’t end there.

Editor’s note: Manola Secaira is changing regions reporter for Crosscut, a part of Cascade Public Media. Tripp Crouse is the news director for KNBA, a public radio station in Anchorage, whose parent company is Koahnic Broadcast Corporation. This broadcast story and audio were produced through a collaboration between Crosscut and KNBA.