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:

Oklahoma

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.

Iowa and Nebraska

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.

Montana

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.

Minnesota

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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Juan Peña, 29, has worked in the fields since childhood, often exposing his body to extreme heat like the wave hitting the Midwest this week.

The heat can cause such deep pain in his whole body that he just wants to lie down, he said, as his body tells him he can’t take another day on the job. On those days, his only motivation to get out of bed is to earn dollars to send to his 10-month-old baby in Mexico.

Farmworkers, such as Peña and the crew he leads in Iowa, are unprotected against heat-related illnesses. They are 35 times more likely to die from heat exposure than workers in other sectors, according to the National Institutes of Health, and the absence of a federal heat regulation that guarantees their safety and life – when scientists have warned that global warming will continue – increases that risk.

Over a six-year period, 121 workers lost their lives due to exposure to severe environmental heat. One-fifth of these fatalities were individuals employed in the agricultural sector, according to an Investigate Midwest analysis of Occupational Safety and Health Administration (OSHA) data.

One such case involved a Nebraska farmworker who suffered heat stroke alone and died on a farm in the early summer of 2018. A search party found his body the next day.

In early July 2020, a worker detasseling corn in Indiana experienced dizziness after working for about five hours. His coworkers provided him shade and fluids before they resumed work. The farmworker was found lying on the floor of the company bus about 10 minutes later. He was pronounced dead at the hospital due to cardiac arrest.

“As a physician, I believe that these deaths are almost completely preventable,” said Bill Kinsey, a physician and professor at the University of Wisconsin-Madison. “Until we determine as a society the importance of a human right for people to work in healthy situations, we are going to see continued illness and death in this population.”

Peña harvests fields in Texas and Iowa. This summer, he’s overseen five Mexican seasonal workers picking vegetables and fruits in Louisa County, Iowa. With its high humidity and heat, Iowa’s climate causes the boys, as he affectionately refers to them, to end their day completely wet, as if they had taken “a shower with their clothes on,” he said. They work up to 60 or 70 hours a week to meet their contractual obligations.

“I’m lucky because my bosses are considerate (when it’s hot),” he said in Spanish, recalling that he managed to endure temperatures as high as 105 degrees in Texas. “I’ve had bosses who, if they see you resting for a few minutes under a tree to recover yourself, think you’re wasting your time and send you home without pay.”

Some of his friends have been less fortunate, and a few minutes of rest have been cause for dismissal, he said.

The fatalities scratch the surface of what is a more extensive issue, according to health experts, academics and advocacy groups, who say the data on heat illnesses and death is inadequate.

“There is a massive undercount,” said Elizabeth Strater, director of strategic campaigns for United Farm Workers.

She said it is common for the death of a person who died after a heat stroke to be classified as caused by a heart attack on an autopsy.

Strater said it’s difficult to quantify issues that face farmworkers because those that are undocumented tend to shy away from authorities and, in general, the population moves around a lot and lives in secluded areas. “Everything to do with farmworkers is particularly difficult because we don’t know,” she said.

An estimated 2.4 million people work on farms and ranches nationwide, according to the U.S. Department of Agriculture’s census of agriculture. This population, mostly Latino, is roughly equal to the population of Chicago. More than one-third are undocumented.

A possible federal standard

Although employers are generally responsible for ensuring a safe working environment that protects their employees’ well-being and lives, no federal regulation stipulates a specific temperature threshold that mandates protective measures.

Nearly four in 10 farmworkers are unwilling to file a complaint against their employer for noncompliance in the workplace, mostly out of fear of retaliation or losing their job, according to survey data of California farmworkers conducted by researchers at the University of California Merced Community and Labor Center.

Only four states have adopted outdoor workplace heat-stress standards, and none of them are in the Midwest. California was the first to implement such standards, followed by Oregon, Washington, and Colorado.

This leaves the protection of agricultural workers from heat stress at the discretion of their employers in most states.

OSHA has been working on a heat-stress rule since 2021 that will require employers to provide adequate water and rest breaks for outdoor workers, as well as medical services and training to treat the signs and symptoms of heat-related illnesses. However, according to a U.S. Government Accountability Office report, this process can take from 15 months to 19 years.

OSHA officials would not comment on the pending federal heat standard.

Last year, the Asuncion Valdivia Heat Stress Injury, Illness, and Death Prevention Act, which would force OSHA to issue a heat standard much faster than the normal process, failed to get the votes on the floor.

The bill was named in honor of Asuncion Valdivia, who died in 2004 after picking grapes for 10 hours nonstop in 105-degree heat. Valdivia collapsed unconscious and, instead of calling an ambulance, his employer told his son to take his father home. On the way home, he died of heat stroke at 53.

A group of Democratic lawmakers reintroduced the bill last month.

“There is definitely a political decision to be made by members of Congress, in both the House and the Senate, because they have the power to pass legislation to tell OSHA to issue a standard more quickly,” said Mayra Reiter, project director of occupational safety and health at the advocacy group Farmworker Justice.

Reiter added that the legislation would also help shield that standard from future legal challenges in court.

As in several recent years, the summer of 2023 has broken records for heat.

In response, President Joe Biden announced new measures to protect workers — including a hazard alert notifying employers and employees of ways to stay safe from extreme heat — as well as steps to improve weather forecasting and make drinking water more accessible.

But farmworker advocacy groups are calling on the administration to speed up OSHA’s issuance of a rule protecting workers. They are also pushing for the 2023 farm bill to include farmworker heat protections.

“Farmer organizations and many other worker advocacy groups are hoping that there’ll be a federal regulation,” Reiter said, “because, going state by state, we have seen that there isn’t that urgency to develop these rules.”

Long way to a new rule

Creating a new rule to protect workers from heat must overcome several hurdles, from bureaucratic procedures to lobbying industries, including the agricultural industry.

“OSHA is uniquely slow,” said Jordan Barab, who served as OSHA’s deputy assistant secretary of labor during the Obama administration.

He said the 1970 act that created OSHA imposes many requirements on the rulemaking process. The agency has to determine the current problem and whether the new standard will reduce risk. OSHA must also ensure that the new standard is economically, technically and technologically feasible in all industries.

The road to regulations to protect workers from the heat also has to overcome industry lobbying, including big agricultural and construction groups. One group that has expressed hesitancy to new federal rules is the American Farm Bureau Federation, which has spent on average about $2.3 million on lobbying over the past two years, according to OpenSecrets.

“Considering the variances in agricultural work and climate, (the Farm Bureau) questions whether the department can develop additional heat illness regulations without imposing new, onerous burdens on farmers and ranchers that will lead to economic losses,” Sam Kieffer, vice president of public policy at American Farm Bureau Federation, said in a statement.

Vulnerable populations

To make a living, Jaime Salinas fills 32 sacks of apples each day in Missouri. His daily quota is one ton, or about 3,200 apples. His wife used to walk 11 miles a day to harvest fruits and vegetables when she worked in the field.

He said when he gets too hot, he sits in the shade to drink water but feels pressured to keep working due to the method of payment, which depends on the amount harvested.

Strater, with Farmworker Justice, believes that the way farmworkers are paid is one of the main obstacles that must be overcome to ensure their safety because it often incentivizes volume, forcing them to expose themselves to continued work without regard to the signs of heat-related illness.

Kinsey, the University of Wisconsin professor and the director of a mobile clinic, said the demographic has a higher incidence of diabetes, hypertension, and chronic kidney disease.

“Climate stress,” he said, “has introduced an additional layer of complexity to these existing challenges.”

Seasonal visa workers are especially vulnerable because they depend completely on whoever hires them: from the house they live in to the food they eat.

“You’re going to endure as much as you can with the hopes of continuing to provide for your family,” Strater said. “The thing is the endpoint for that is death.”

In Tama County, Iowa, David Hinegardner owns a small farm called Hinegardner’s Orchard, where he grows apples, strawberries, corn and soybeans. He sells his crop to supermarkets, farmers’ markets, schools, and colleges.

The farmworkers are immigrants from Latin America who reside in the surrounding area, and some of them have been working on his farm for decades. One of the measures he takes during the summer to avoid risks to his workers is to change the work schedules to avoid the hottest part of the day.

“I think they do a much better job when they’re treated with respect and taken good care of,” he said.

This story is a product of Harvest Public Media, Investigate Midwest and the Mississippi River Basin Ag & Water Desk as part of the series A Changing Basin. News outlets can sign up to republish stories like this one for free. 

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You might see Elizabeth Johnson’s semi-tractor trailer traveling the U.S. interstate highways, especially between Colorado and Nebraska.

And if you do see it, there’s no way you can miss Johnson’s message.  The entire trailer carries the simple direct message: “Invisible No More.”

It’s a message meant to bring attention to the plight of missing and murdered Indigenous women whose cases are unsolved.

Johnson — a member of the Ho-Chunk Tribal Nation of Nebraska — has been spreading the message since 2017.

“My message as a woman is, if any woman sees this semi-truck and needs help, me and my dog Delilah will help you to safety,” Johnson said. “Knock on my semi-truck door.”

There are an estimated 506 cases of missing or murdered indigenous women across the country. And that’s likely an undercount due to bad data, according to the Urban Indian Health Institute. Of that number, 128 of the women are considered missing, while 280 were known murdered. Another 98 are cases of unknown status, according to the Urban Indian Health Institute.

The group surveyed 71 police stations and one state agency and found 5,712 missing and murdered Indigenous cases were reported in 2016. But of those, only 116 were logged in a Justice Department database.

According to the National Institute of Justice, as of May 2023, 84.3% more than 1.5 million American Indian and Alaskan Native women experience violence in their lifetime. Victimization of American Indian and Native woman is 1.2 times higher than white women.

Johnson and her family moved to Winnebago in Nebraska when she was five, and she was raised as a tribal member of the Nebraska Ho-Chunk tribe and given the name Rainbow Woman.

She left home when she was in her preteens and has kept moving.

“I don’t know if God would bless me to go further in my trucking industry or this is the end of my travels, but when I see family, I want to make an apple pie,” Johnson said.

Nebraska is always her home, she said, but so is Colorado because her son and grandchildren live in Brighton. She spends half her time with them.

Johnson started her mission because she was a victim of abuse herself. It was a two-way abusive situation, she said:  He was abusive to her, but she fought back.

“He would put me on his lap with a knife at my throat,” Johnson said. “It was a toxic relationship. I left, and I was done. As soon that door closed, God, or wherever you want to believe, started to open other doors for me.”

She had worked as a construction driver in the summer and fall. She was laid off in the winter but guaranteed to return in the summer. Even so,  she said she needed a more consistent job, and she needed reliable transportation to do that. She found a pick-up truck she liked and approached a bank looking for a loan.

“They never wanted to give me a loan, but I told them if you don’t give me a loan, I’m going to go somewhere else,” she said. “This is income that comes to your bank and comes back out. They gave me the loan, and I purchased a brand-new Silverado. When I purchased the truck, that was when I left the man. I thought I was going to die leaving him and was heartbroken, but I left.”

Johnson said she drove the Silverado for a while, and although it was nice to drive a cute truck, she was still broke.

“I went back to the bank and asked for a loan to trade off the Silverado for a used semi to make money,” she said. “I told the banker it was a win-win. I could make money at the same cost Silverado. The woman sat across from me and said, ‘I’m going do it for you’. Usually, they didn’t give business loans.”

That opened a door for Johnson, and she started her trucking company, Ho-Chunk Trucking, in 2017. After a couple of years, she was able to upgrade and buy a new semi-truck. Then, after a couple’s years of hauling other companies’ trailers, she took out another loan and purchased her own trailer in 2020.

“I wanted my own trailer because women in the industry are treated badly. It’s a whole other story,” Johnson said.

Johnson said that once she had a trailer, she started thinking about it as a platform for other Native American women.

“I went through hell and back. What is the message I wanted to say to the world?” she said.

Johnson decided to do a custom wrap on her trailer with a message about Indigenous women. She also included pictures of her family dressed in regalia and a friend dancing pow-pow and included information about 500 gone missing or murdered women.

One photo, showing a woman with a red hand over her mouth, is her niece Jalisa Horn who was left for dead from abuse and had to crawl to get help. Horn agreed to add her photo to draw attention to the message.

Gov. Jared Polis signed Senate Bill 22-150,  a law requiring official reports of missing indigenous people within eight hours. Missing children must be reported to law enforcement within two, under the law.

The act also requires the Colorado Bureau of Investigation to work on investigating missing or murdered indigenous persons and also work with federal, state, and local law enforcement to effectively investigate the cases.

In addition, an alert system and an agency called Missing and Murdered Indigenous Relatives are responsible for reporting and improving the investigation of missing and murdered Indigenous women and addressing injustice in the criminal justice system.

This story was previously published by Colorado Community Media and is being republished from AP StoryShare.

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