A Washington state Supreme Court decision could mean a legal victory for Native communities in terms of child welfare cases.
Washington Supreme Court ruled Thursday, September 3, 2020, that state courts must use a “broad interpretation” when determining whether children who face removal from their parents -- have Native heritage. The decision also says that a Tribe has the exclusive role to determine who is a member, not states.
Justice Raquel Montoya-Lewis wrote the unanimous decision:
“We hold that a trial court has ‘reason to know’ that a child is an Indian child when a participant in the proceeding indicates that the child has tribal heritage. We respect that tribes determine membership exclusively, and state courts cannot establish who is or is not eligible for tribal membership on their own.”
The decision recounts the historical removal of Native children from their homes – largely without due process and Tribal notice, which is why the Indian Child Welfare Act and similar state laws are important. Washington enacted its own version of ICWA in 2011.
“Removal caused — and continues to cause — lasting trauma for both individuals and tribes, as well as a disconnection between individuals and their tribal communities,” the decision states.
The ruling overturns a lower court and court of appeals decision involving a child custody case. Two young boys were removed from their home. According to the police report, the removal was out “concerns of neglect or unsanitary living conditions.”
The father grew up on the Umatilla Indian Reservation and the mother was eligible for membership with the Klawock Cooperative Association, a Tribe in Southeast Alaska. And both parents told the court about their heritage.
But the judge ruled that there wasn’t enough “reason to know” that the children were Native under the law. The judge said the federal and Washington-state versions of the Indian Child Welfare Act – or ICWA -- didn’t apply.
The state Supreme Court decision essentially ruled that the lower courts had “enough reason to know” when both parents said they had heritage.
The boys spent a year in foster care before being placed with their grandmother in May 2019. They continue to live with her today.
The decision states, “The ‘reason to know’ finding performs a critical gatekeeping function. It ensures that the court applies the heightened ICWA and WICWA standards early on in any proceeding and ensures that tribes receive adequate notice of the proceeding in order to protect their children and the tribes’ sovereign interests.”
Montoya-Lewis (Isleta and Laguna Pueblo) is the first Native American on the Washington State Supreme Court, and possibly the second in the U.S.
Before becoming a state Supreme Court justice, Montoya-Lewis served as the Nooksack and Upper Skagit Indian Tribes, before sitting on Whatcom County Superior Court.
Washington Governor Jay Inslee appointed her to the state Supreme Court in December 2019.
Photo credit: Historic 1920 Temple of Justice on the Capitol Campus in Olympia, Washington. The building houses the Washington Supreme Court. (Creative Commons photo by C Hanchey/Flickr)