(RNS) — A Native Alaskan midwife known for her healing love, especially toward abused women, has become the first female Orthodox Christian saint from North America after she was glorified at a meeting of bishops of the Orthodox Church in America in Chicago this week.
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The nation’s highest court recently upheld the Indian Child Welfare Act in a major case over the law’s constitutionality, a decision hailed by many as a victory for Indigenous children and their families.
But while the 7-2 majority decision in the Brackeen v. Haaland case firmly rejected key arguments against the law known as ICWA, state-level challenges have been moving through lower courts across the country, with varying degrees of success.
Cases in Nebraska, Alaska, Iowa, Montana and Oklahoma center on different legal issues than those decided by the U.S. Supreme Court last month. Plaintiffs in Brackeen v. Haaland — a group of states along with white adoptive parents seeking custody of Native children — argued unsuccessfully that ICWA was unconstitutional because it exceeds the “plenary powers” of Congress to pass legislation governing tribal affairs, “commandeers” states to follow federal law and violates equal protection guarantees.
Yet while the Supreme Court upheld ICWA’s constitutionality for now, legal experts who are both supporters and critics of the 45-year-old federal law say the Brackeen case doesn’t rule out future challenges to tribal sovereignty.
What’s more, justices declined to delve into the equal protection arguments in the case, stating only that the plaintiffs “lack standing” on that issue because the adoptions of Indigenous children they sought had been finalized. Some court watchers say that leaves open the possibility of future lawsuits on equal protection issues.
The 1978 law in question seeks to repair damage caused by centuries of forced attendance at Indian boarding schools and coercive adoptions into white, Christian homes. That legacy has endured in Indian Country, where the rate of foster care removals remains far higher than in other racial and ethnic communities.
Under ICWA, state child welfare agencies must determine whether a child facing foster care, adoption or guardianship is a member of a Native American tribe. If they are an enrolled member or have a parent who is enrolled and are eligible for tribal membership, the case takes a different pathway than for other children. Tribes must be offered the opportunity to take jurisdiction from the state court; tribal members and Indigenous foster parents and kin must be prioritized for placements; and social service agencies must make “active” rather than “reasonable” efforts to help parents accused of maltreatment reunite with their children.
Kate Fort, director of the Indian Law Clinic at Michigan State University College of Law, outlined the most common reasons for an ICWA appeal in the March edition of the Juvenile and Family Court Journal.
She wrote that between 2017 and 2022, more than 40 percent of all such cases were remanded — sent back to lower courts — or reversed. Plaintiffs in 87 percent of the ICWA-based appeals were biological parents of an Indigenous child. About half the cases were appealed based on parents’ belief that the court improperly determined ICWA’s application to their child’s case.
“These data indicate that agencies and courts are still struggling with the first step in an ICWA case — whether they have an ICWA case at all,” Fort wrote in the paper.
Two ICWA-related cases were decided by the Alaska Supreme Court in July 2022.
They involved the federal law’s provision requiring that a “qualified expert witness” testify about the Indigenous child’s tribe, customs and traditions before their parent’s rights can be terminated. Those challenges did not prevail.
Recent disputes over ICWA in state courts center on tribal jurisdiction, the definition of a Native child, and termination of parental rights, among other issues. The following is a summary of some recent cases:
Tribal court jurisdiction in child welfare cases lost ground in an April ruling in Oklahoma. In the decision — involving a child identified as S.J.W. — the state Supreme Court gave lower courts increased ability to grant custody of Native children living on a reservation that is not their own.
S.J.W.’s parents argued that “the Chickasaw tribal court has exclusive jurisdiction regardless of the fact that S.J.W. is a nonmember Indian child,” according to court documents. The state maintained it had shared jurisdiction on cases involving ICWA.
Critics call the ruling involving a Muscogee child living on Chickasaw Nation’s reservation deeply flawed.
The state Supreme Court “misunderstands tribal sovereignty,” the Choctaw Nation’s senior executive officer of legal and compliance Brian Danker told a National Public Radio affiliate. “This ruling could impact a tribe’s ability to protect tribal citizens’ social, cultural and familial connections as it attempts to chip away at the foundations of tribal sovereignty in the state of Oklahoma.”
Fort described the Oklahoma ICWA case as unique, and a “truly unfortunate opinion with absurdly weak analysis.” Fort said tribes’ ability to retain jurisdiction over child welfare cases remains an ongoing fight in multiple states.
In another suit filed this past April by the Red Lake Band of Chippewa Indians, the Supreme Court in Nebraska denied the tribe’s request to intervene, because it had previously been determined the child in question did not meet the criteria of an “Indian child.” The child’s mother was eligible for tribal enrollment, but was not yet enrolled.
The tribe argued the spirit of ICWA should apply to the case, but the state of Nebraska opposed that position, and was victorious in court. Ultimately, the state’s highest court ruled that ICWA’s specific requirements to determine a child’s eligibility for its protections should be strictly applied.
In April 2022, the Iowa Supreme Court upheld a juvenile court’s ruling that denied a child ICWA protections, affirming a prior decision to terminate the rights of the child’s parent. The juvenile court found the state’s “reasonable efforts” to avoid out-of-home placement — instead of the “active efforts” required for tribal members under ICWA — were adequate because the child was deemed to be non-Native.
ICWA was affirmed in a Montana case decided by the state Supreme Court in January, a ruling that underscored how the federal law applies to guardianships and third-party custody proceedings, in addition to adoption and foster care cases.
The child’s mother, an enrolled member of the Native Village of Kotzebue Tribe in Alaska, provided the court with verification that her three children were eligible for ICWA protections. She asked the courts to remove her children from the Montana home of their paternal grandparents — who had full custodial rights — and restore her custody. The case was sent back to lower courts for further proceedings to determine if the children should be returned to their mother.
Nearly two weeks after the Brackeen decision in mid-June, the U.S. Supreme Court denied review of a recent Minnesota case making a related equal protection argument — that ICWA discriminates against non-Native foster and adoptive parents.
In March 2022, Hennepin County was sued by two Indigenous foster parents who were unsuccessful in the adoption of the Indigenous child they were fostering. Instead, the child’s tribe, Red Lake Band of Chippewa, took over the proceedings and granted custody to the child’s maternal grandmother. The foster parents were considered “nonmembers” in the ICWA case, because one is enrolled in the Bois Forte Band of Chippewa and the other is a White Earth Nation descendant.
The plaintiffs in the case — who, under ICWA, lost priority in their adoption efforts in favor of the child’s relative despite having adopted the child’s siblings — were represented by Minnetonka attorney Mark Fiddler, a member of the Turtle Mountain Band of Chippewa Indians. He also represented the white adoptive couples seeking to overturn ICWA in Brackeen v. Haaland. The conservative Goldwater Institute filed amicus briefs in both cases, challenging ICWA’s constitutionality.
In an email, Fiddler said that while the institute attacked ICWA as unconstitutional, the plaintiffs did not. “Rather, they argued ICWA could and should be interpreted to be constitutional by not forcing nonmembers into a jurisdiction foreign to them,” he said.
“Petitioners were improperly subjected to the personal and subject matter jurisdiction of a state foreign to them, one where they have no right to vote,” plaintiffs stated in Denise Halvorson v. Hennepin County Children’s Services Department case documents. As a result, the lower court violated “their due process rights to fundamental fairness and equal protection.”
But the petition to the U.S. Supreme Court was denied on June 26.
Fiddler said despite the high court upholding ICWA in Brackeen and its denial of the Hennepin County case, establishing standing in an equal protection case against ICWA “would be easy,” and he fully expects continued challenges to the law on this issue and others.
“Any foster or adoptive parent would have the right to move to strike down ICWA in state court, so long as he or she was jeopardized by it somehow,” Fiddler stated shortly after the Brackeen decision.
The Imprint is a non-profit, non-partisan news publication dedicated to reporting on child welfare.
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This article is part of FERN’s series
The Biodiversity Crisis
In January, with the almond bloom in California’s orchards a month away, beekeepers across the country were fretting over their hives. A lot of their bees were dead, or sick. Beekeepers reported losing as much as half their hives over the winter. Jack Brumley, a California beekeeper, said he’d heard of people losing 80 percent of their bees. Denise Qualls, a bee broker who connects keepers with growers, said she was seeing “a lot more panic occurring earlier.”
Rumors swirled of a potential shortage; almond growers scrambled to ensure they had enough bees to pollinate their valuable crop, reaching out to beekeepers as far away as Florida, striking deals with mom-and-pop operations that kept no more than a few hundred bees. NPR’s All Things Considered aired a segment on the looming crisis in the almond groves.
By May, it was clear that California’s almond growers — who supply 80 percent of the world’s almonds — had successfully negotiated the threat of a bee shortage, and were expected to produce a record crop of 2.5 billion pounds, up 10 percent from last year, according to the U.S. Department of Agriculture.
But the panic, it turns out, was justified. The results of this year’s annual Bee Informed Partnership survey, a collaboration of leading research labs, released Wednesday, found that winter losses were nearly 38 percent, the highest rate since the survey began 13 years ago and almost 9-percent higher than the average loss.
The panic underscored a fundamental problem with the relationship between almonds and bees: Every year the almond industry expands, while the population of honeybees, beset by a host of afflictions, struggles to keep pace.
“We are one poor weather event or high winter bee loss away from a pollination disaster,” Jeff Pettis, an entomologist who at the time was head of research at the USDA’s Bee Research Laboratory, said in 2012. And while the disaster Pettis warned of hasn’t struck yet, its likelihood grows each year.
There would be no almond industry without the honeybee, which so far is the only commercially-managed pollinator available in sufficient numbers to work California’s almond fields. The industry is in the midst of a boom, as Americans eat more almonds than ever. We consume more than two pounds per person each year in our granola bars, cereals, milks, and regular old nuts, fueling an $11-billion market.
It’s not clear that boom is sustainable. Though concern about a bee shortage seemed acute this year, the pollination market for almonds has been tightening for more than a decade. In 2005, fear of a pollinator shortage was so great that the government allowed wholesale importation of honeybees for the first time since 1922.
California’s almond industry spreads over 1.4 million acres of the Central Valley. During bloom, which typically unfolds over three weeks in February, these orchards require the services of some 80 percent of all the honeybees in the country.
Honeybee colonies, on the other hand, have been dying at high rates. Historically, colonies died mostly during the winter. So when the Bee Informed Partnership started tracking colonies in 2007, it only looked at winter losses, which have ranged from 22 percent to this year’s nearly 38 percent. Along the way, researchers realized that beekeepers had started losing a surprising number of bees in the summer, too, a season when all should be going well for bees. They started tracking annual losses in 2013, which have ranged between 33 percent and 45 percent. The loss for the year ending March 31 was 41 percent.
The threat to the bees is multifaceted and existential. The varroa mite, an invasive species of external parasite that arrived in Florida in the 1980s, literally sucks the life out of bees and their brood. Herbicides and habitat loss have destroyed the bees’ forage. An array of pesticides, including dicamba and clothianidin, have been found to damage the bees’ health in a variety of ways, weakening their immune systems, for instance, and slowing their reproductive rate.
The process of getting the bees to the almonds adds another stressor. Each January, the sluggish bees are prodded into action much earlier than what would be their normal routine. They are fed substitutes for their natural foods of pollen and nectar so they will quickly repopulate the hive to be ready for almonds. They are then loaded onto trucks and shipped across the country, plopped in an empty field and fed more substitute food while they wait for almonds to bloom.
“We’ve had to bend the natural behavior of honeybees around almonds,” said Charley Nye, who runs the bee research operation at the University of California, Davis.
One reason beekeepers are less inclined to talk about this distortion of nature is that almond pollination has become their biggest single money-maker of the year, accounting for about one-third of their annual income in 2016. No other crop pays as well as almonds, so if a beekeeper misses almond pollination, it could cripple his business.
“They’re not dead, but if they don’t make it to almonds, then from an economic standpoint, they’re as good as dead,” said Gene Brandi, a California beekeeper, back in January when the panic was in full bloom.
In 2018, California had 1.1 million acres of almond trees bearing nuts and another 300,000 acres of trees still too young to need pollination. Each acre of mature trees is supposed to be pollinated by two honeybee colonies. There are between 10,000 and 15,000 bees in a colony when they arrive in the almond fields, and for the last four years, the U.S. has averaged 2.67 million colonies right before almond bloom.
You can do the math, but like Nye says: “As the almond acres grow, the demand for colonies seems to be outpacing the number of colonies that exist.”
The tight market has forced growers and brokers to expand their search for bees. “It used to be that we only dealt with operations that managed at least a thousand to 3,000 hives,” said Pettis, the former USDA entomologist. “Now people are pulling bees from smaller and smaller operators. They’re pulling bees literally out of people’s backyards and putting them on trucks to pollinate almonds. And while we used to only move bees from west of the Mississippi River, now we go all the way to Florida and New York state.”
Growers are also hedging their bets by securing more bees than they actually need, a strategy that only exacerbates the tight market.
The intel used to gauge the number of bees in the country is surprisingly imprecise. The bee count offers just a small snapshot in time and relies on beekeepers’ responses to a poll. The numbers are approximate, with undercounts more likely than overcounts. Yet the trend lines are clear: Unless something changes, at some point in the near future we won’t have enough bees.
Limiting colony losses is one way to change the trend. The honeybees’ biggest threat is the varroa mite. The USDA, Project Apis m., and both beekeepers and bee producers are currently conducting trials of a varroa-resistant bee that will work for commercial beekeepers. Also, researchers have been working for years on a backup to the honeybees for early-season crops like almonds. This bee, the blue orchard bee, is in the early stages of commercial production, and it will be years before it could make significant inroads in replacing some of the honeybees.
Meanwhile, there are signs that almond growers are becoming more amenable to bee-friendly practices such as modifying pesticide use and planting flowers in their orchards that would provide alternate forage for the bees while they wait for the almond bloom. Nye said some growers are getting “a little more sensitive to the job the honeybees are doing; they seem to be investing more in pollinators.”
Ultimately, a big part of the solution may be to reevaluate the number of colonies deployed per acre. “Those standards were set many, many, many years ago,” said Bob Curtis, a pollination consultant with the Almond Board of California, and a lot has changed since then.
For the last 12 years, almond groves have produced one-third more nuts than they did in the dozen years before that. Some orchard management practices have changed in that time, but growers also began requesting, and paying a premium for, stronger hives that contain more bees. Today, most of the colonies that go to almond groves contain twice as many bees as they did in decades past. Whether the higher production rate of the almond trees is due to more bees per colony, different management practices, or some combination of factors is hard to say.
Curtis said the Almond Board is undertaking new studies to determine if the stocking rate could be adjusted, which would ease the pressure on embattled beekeepers to keep up with the surging almonds.
A lower stocking rate would also ease the stress on the bees themselves, but it wouldn’t stop them from dying in excessive numbers. Reversing that trend will require dramatically different approaches to everything from how we farm to how we use our land — things not likely to change anytime soon. The disaster Pettis warned of remains a very real possibility. Honeybees continue to be in a fight for their lives.
Produced with FERN, this article was first published by HuffPost. All rights reserved. This article may not be reproduced without express permission from FERN. If you are interested in republishing or reposting this article, please contact info@thefern.org.
Only about 35 miles separate Yellowstone’s relatively small, isolated grizzly bear population from the expansive contiguous population of Montanan, Canadian and Alaskan grizzlies that numbers in the tens of thousands.
Bridging the gap, and diversifying the Greater Yellowstone Ecosystem bruins’ genepool, has been a longstanding goal, a centerpiece of the debate over bear management and thus far, a vexingly elusive accomplishment.
Yet, grizzly researchers expressed hope last month that population “connectivity” may soon be within reach, despite also reporting at the same meeting in Cody that Yellowstone region bears have stopped expanding their range.
“I’m optimistic,” Interagency Grizzly Bear Study Team leader Frank van Manen told WyoFile. “The reality is we are really close.”
Why, after a half century without any interpopulation exchange, and in the face of a stagnating range, would connectivity happen now?
Biologists have assembled something of a Yellowstone-region grizzly family tree by capturing, extracting blood from and mapping the genes of more than 1,000 bears over the decades. The project has yet to produce firm evidence that even one animal has trekked south and mingled its genes with the locals.
But at least one grizzly has gone in the opposite direction.
In 2021 a 5-year-old male was caught and killed for preying on cattle near Montana’s Little Snowy Mountains, far to the east of the grizzly population swelling into the plains from the Glacier National Park-anchored Northern Continental Divide Ecosystem. Surprisingly, the itinerant bear came from somewhere else. From the grizzly family tree, van Manen and other biologists deduced that the boar moseyed 110 miles from the Greater Yellowstone Ecosystem’s Beartooth Mountains, where it was likely born and raised.
“It’s in the wrong direction, but it shows the potential of connectivity,” van Manen said. True connectivity, from a wildlife biology perspective, requires an influx of fresh genetics into the more isolated population — in this case the Yellowstone Ecosystem bears — meaning a bear trekking north doesn’t check the box. But, the opportunity is “there, if we just had a bear do the opposite. And there’s no reason to think that would not be possible, right?”
Biologically, yes. But 21st century grizzlies inhabit a human-dominated landscape in which politics, policy and the behaviors of people arguably have as much influence over connectivity as biology.
Montana’s grizzly bear management plan “basically says we are going to allow for connectivity,” said Cecily Costello, a research biologist with Montana Fish, Wildlife and Parks.
But can the bears avoid deadly conflicts as they head south? The prospect of conflict is much lower in the ecosystem cores than in the intervening landscapes. Some 84% of the Northern Continental Divide Ecosystem’s grizzly recovery zone is public land, and the figure is a whopping 98% within the Greater Yellowstone Ecosystem. But only 54% of the connectivity area is publicly managed ground, according to data Costello presented at the Cody meeting.
Conservation groups are mounting efforts to create more bear-friendly landscapes in the connectivity areas, but that’s a long-term and costly endeavor. It might take 20 years of hard work, guessed Gary Burnett, a managing director for the Missoula-based Heart of the Rockies Institute.
“From a connectivity perspective, we think there are two things in particular you need to have,” Burnett said. One, he said, is an “open landscape” — achieved through means like conservation easements. The other component is diminishing the harmful “attractants” that come with humanity, be they agricultural or residential.
Some causes of grizzly mortality are easier to eliminate.
Former U.S. Fish and Wildlife Service grizzly bear recovery coordinator Chris Servheen believes Montana’s management plan doesn’t do enough to safeguard grizzlies in the connectivity areas. He’s also optimistic that a Montana grizzly will successfully disperse south — it’s likely to occur within “three or four years” — but worries state management could jeopardize the chances of such a movement occuring.
“Every year we see bears further and further out and closer and closer together,” Servheen said, “but that’s happening while they’re listed [under the Endangered Species Act] and that’s happening without any hunting in that connectivity area.”
Factoring in hunting, Servheen said, the three- or four-year estimate for a successful disperser “would be completely out the window.”
“In my mind, hunting would put connectivity at grave risk,” he said. “I really object to the tone of intolerance that exists in many of these state plans. They look at grizzly bears as a competing interest with everything else.”
“In my mind, hunting would put connectivity at grave risk.”
Chris Servheen, Former U.S. Fish and Wildlife Service grizzly bear recovery coordinator
Montana officials, he said, are talking out of both sides of their mouths by prioritizing connectivity while simultaneously saying they would allow hunting in linkage habitat.
The Fish and Wildlife Service is weighing whether to attempt a third go at delisting grizzlies — a process Wyoming is suing over to move it along.
Ahead of the federal agency’s analysis, the states of Wyoming, Montana and Idaho forged a pact that outlined the parameters of grizzly bear hunting — potentially with few restrictions along the ecosystem’s periphery — and other aspects of management. That agreement called for a 13% reduction in the grizzly population within a monitoring area where bear numbers are counted. There would likely be even heavier hunting and no firm requirements to maintain grizzlies at all outside that zone. Roughly 40% of occupied grizzly range is outside of the monitoring area.
If hunting were layered atop other conflicts already constraining the grizzly range, bears would have an even tougher time establishing and persisting in the most people-packed connectivity areas of west-central Montana.
Connectivity, however, does not require persistent habitation.
“That’s sometimes misinterpreted by some people: That you need occupation,” van Manen said. “You don’t. You don’t need resident bears to connect genetically.”
A single dispersing male that successfully makes the trek south and spreads his genes would do the trick, he said.
Costello shared preliminary findings at the Cody meeting from research investigating potential Yellowstone-to-Glacier region grizzly bear corridors. U.S. Geological Survey ecologist Sarah Sells, University of Montana biologist Paul Lukacs and Montana Fish, Wildlife and Parks employees Lori Roberts and Milan Vinks collaborated on the study.
There are several primary linkage paths, according to maps Costello presented and discussed with WyoFile. The two most direct routes shoot more or less straight northwest to southeast. The easternmost corridor skirts Helena and Bozeman, Montana by way of the Big Belt, Bridger and Gallatin mountain ranges, while another direct linkage route runs from the Boulder and Highland mountains down the Tobacco Roots and into the Madison Range.
“We have observations of bears in all of the mountain ranges I just mentioned except for the Tobacco Roots and the Bridgers,” Costello said. “So they’re halfway there.”
The modeling predicted grizzly bear use of linkage areas based on several habitat qualities, but foremost was the greenness of the landscape. Mountains, forests and riparian areas rank higher, whereas sagebrush steppe and high plains environments rank lower.
Another component tracked the “forest edge,” Costello said, which is a particular productive part of the landscape that grizzly bears prefer.
The model also factored in the habitat preferences of real-world Northern Continental Divide Ecosystem grizzlies.
“The way that we ran the analysis is we simulated each bear’s model on the landscape,” Costello said.
Similarly, the model accounted for habitat qualities that grizzlies tend to avoid: roads and housing. The likelihood of conflict nearer to humans is another important factor for predicting where grizzly bears can persist in the currently grizzly-less void.
Even without connectivity, van Manen said, the Yellowstone ecosystem population is on good ground genetically. “With the current population size,” he said, “that concern is decades away — and probably more than decades.”
In the absence of a successful grizzly bear dispersal south, wildlife managers have pledged to force the issue. The tri-state pact commits the states to translocating “at least two” bears from outside the Greater Yellowstone into the region by 2025 unless migration is detected in the interim.
That’s not an ideal outcome, in Servheen’s view: “Allowing this to happen naturally is really important,” he said.
Moving bears from one ecosystem to another is dependent on “political whims” and agency administrators. Having that fallback option also deprioritizes good planning, he said.
“The end result is really poor conservation and poor management,” Servheen said. “I don’t think driving them around is a good solution.”
If a grizzly bear does bridge the 35-mile gap it will have to cross interstate highways, settled valleys and other human obstacles. Those barriers, van Manen said, inhibit the already sluggish expansion of a species that biologically has a slow “life history strategy.
“They live longer, and can afford for that process to take a longer time,” he said.
Even so, due to decades of conservation and range expansion, connectivity might have already occurred. There is a time delay in crunching data and completing parentage analyses from grizzly bear bloodwork, van Manen said. The bear that showed up in the Snowy Mountains, for example, was sampled in 2021, but biologists didn’t realize it came from the Beartooths until this year due to normal delays in processing its genetics.
“For all we know,” van Manen said, “we might already have genetic connectivity, but have just not documented it yet.”
The post Will Yellowstone’s grizzly bears remain forever isolated? appeared first on WyoFile.
Selawik, Alaska, is a Iñupiat Eskimo community where generations have survived off the land.
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