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Pascua Yaqui & state of Arizona agree on roles in foster children cases ahead of Supreme Court decision

Pascua Yaqui & state of Arizona agree on roles in foster children cases ahead of Supreme Court decision

Brackeen v. Haaland ruling will decide how to treat Native American children in state custody in light of 'traumatic history'

  • Peter Yucupicio, the chairman of the Pascua Yaqui Tribe, signs an agreement on Tuesday that the tribe will work with Arizona Department of Child Safety when the tribe's children are in state custody. DCS Director Mike Faust is to his right and Herminia Frias, a tribal councilwoman, stands behind him.
    Bennito L. Kelty/TucsonSentinel.comPeter Yucupicio, the chairman of the Pascua Yaqui Tribe, signs an agreement on Tuesday that the tribe will work with Arizona Department of Child Safety when the tribe's children are in state custody. DCS Director Mike Faust is to his right and Herminia Frias, a tribal councilwoman, stands behind him.
  • HHS Assistant Secretary January Contreras talks about the importance of
    Bennito L. Kelty/TucsonSentinel.comHHS Assistant Secretary January Contreras talks about the importance of "coming together to work for children" after the Pascua Yaqui and Arizona Department of Child Safety agreed to keep working together on Tuesday.

Pascua Yaqui children taken into state custody in Arizona will continue to learn and grow up according to the tribe’s customs and traditions, and the tribe will still be able to intervene in custody proceedings such as adoptions and the termination of parental rights. The state and tribe signed a memo of understanding last week cementing that state-tribal partnership.

The agreement comes ahead of a Supreme Court decision, expected in the fall, that could end federal standards for the states' treatment of Native American children that were set out by the Indian Care Welfare Act in 1978.

The Pascua Yaqui Tribe will work with the Arizona Department of Child Safety to “keep families together” and “keep Yaqui children close to the community,” Chairman Peter Yucupicio said. The agreement “gives us guidelines on how to work with each other to achieve keeping children closer to Yaqui identity, culture and values,” he said.

“We have a lot of families that struggle with finding placement and sometimes their children are sent to families all over the state and country,” he said. “It’s a sad thing because they don’t grow up a part of the community or the tribe and with all the cultural reasons we are Yaqui.”

The partnership, Yucupicio said, between the “big powerful body of a state and the state of a (tribal) nation” will “protect the most precious thing for the life and the future of our nation and our state: our children.”

The agreement laid out in the memo “codifies that relationship” between the Yaqui and the state, said DCS Director Mike Faust, who signed the agreement with the tribe, “regardless of federal protections or whatever happens.”

“One of the things that we are committing to that is consistent with (the Pascua Yaqui) community is the importance of family and community in the world of children,” Faust said. “Permanency for those kids is best with family and the community.”

The tribe and state signed the agreement in front of a small gathering of about 30 at Casino Del Sol last Tuesday as a show of “partnership” in the face of the upcoming Supreme Court case of Brackeen v. Haaland, which is scheduled to be heard November 9.

“We’re going to keep trying” to keep families together, Yucupicio said, “regardless of what the court says. That’s our mission in life: to keep as many families together as we can.”

Despite the looming likelihood of a mostly conservative Supreme Court ruling in favor of the states — Texas, Louisiana and Indiana — suing to end the ICWA, Yucupicio said that the “marriage” between the tribe and DCS, as he described their agreement, “solidifies'' their partnership. Faust agreed, saying “this marriage and this agreement solidifies” a commitment to keep families together.

“In this state, we have a partnership and try to work with each other,” he said. “Even if the court case unravels some of that, I think we will still have a good partnership with the state.”

The signing of the memo of understanding gives “peace of mind, to know that your partner is on the same page,” he said.

Nationwide, strong support has been shown for keeping the ICWA. The Pascua Yaqui and DCS signed their agreement four days after 21 amicus briefs were submitted to the Supreme Court in favor of upholding the 44-year-old ICWA. The briefs had signatures of support from 497 tribal nations, 62 Native organizations, 20 states and D.C., 87 members of Congress and 27 child welfare and adoption organizations, along with medical experts and legal and historical scholars, according to the Native American Rights Fund, a nonprofit legal organization.

The Pascua Yaquis' agreement with the state also had federal support on Tuesday as January Contreras, the top child welfare official in the country, was there to laud “two parties coming together to work for children.” The tribe, state and courts have to work together to keep Native American children “connected to their family and culture,” Contreras said.

Contreras, a Southern Arizona native and UA double graduate, is an assistant secretary for the Department of Health and Human Services and heads the Administration for Children and Families. ACF is the federal division responsible for government child support and welfare, adoption assistance, foster care and child protection programs. She lost the 2018 race for Arizona Attorney General to Republican Mark Brnovich, who is now in his last year in the position.

‘The long spirit of ICWA’

The partnership between the state and tribe also helps “live out the long spirit of ICWA,” Contreras said, referring to the 1978 law that set federal guidelines for how states treat Native American children in welfare proceedings, which includes adoptions or deciding guardianship or custody.

States, at the time, carried out child custody and welfare proceedings differently from each other, but ICWA created guidelines for how states should treat Native American children in those proceedings as well as laws about when and how tribes can intervene to decide where a child in state custody goes and how they should be raised.

ICWA recognizes that “there is no resource that is more vital to the continued existence and integrity of Indian tribes than their children,” and “that an alarmingly high percentage of Indian families are broken up by the removal, often unwarranted, of their children.”

When ICWA was passed in 1978, one in every 29 Native American children in Arizona was put up for adoption, according to statements from the hearing for the bill, while one in every 134 “non-Indians” was put for adoption, with similar disparities in the rest of the country. In some states, as many as 95 percent of adopted Native American children ended up in “non-Indian” homes.

Laws created by ICWA allow Native American children or their tribes to petition against court rulings that place kids from the tribe in foster care or that takes away parental rights from any tribe members who are parents or guardians, as well as other “child custody proceedings,” according the text of the law.

Nativa American tribes and child welfare officials, including Yucupicio and Contreras, have called ICWA’s guidelines “the gold standard” for how states should carry out child placement proceedings for Native American children.

The memo of understanding signed by the Yaqui and state on Tuesday first of all promises to share all the information that the Department of Child Safety has from proceedings involving custody of the tribe’s children, but it also allows the tribe to intervene in those proceedings.

The tribe will be able to intervene to place the children of tribe members in different families if they disagree with the outcome of a state child placement proceeding, according to the memo. DCS would then work with the tribe to place the child in another home, though the memo doesn’t require the department to comply with the tribe’s placement preference.

DCS also agreed that the foster care or adoptive homes where they place Pascua Yaqui children are the “least restrictive setting which shares similar social and cultural standards of a Pascua Yaqui Tribe family.”

When placing a child from the tribe in a home, the state even agreed to “consult with the (Pascua Yaqui) tribe regarding all questions which are related to Pascua Yaqui social and cultural standards” to make sure the kid grows up like they would in a Yaqui home.

The terms set out in the agreement are already part of the Indian Child Welfare Act, but Yucupicio, Contreras and other tribe and state officials who spoke at the signing acknowledged that the agreement was meant to protect against a Supreme Court in Brackeen V. Haaland that would end ICWA.

Brackeen v. Haaland started in 2018 as a lawsuit in a Texas district court by Chad and Jennifer Brackeen, a white, evangelical couple who wanted to adopt a child who was Cherokee and Navajo. When the Cherokee Nation intervened to place the child with a tribe member, the couple sued Ryan Zinke, the Interior secretary at the time, saying the ICWA is unconstitutional.

The Interior Department has several bureaus and offices directly related to Native American families and child care, including the Bureau of Indian Education and the Bureau of Indian Affairs, whose head, Bryan Newland, is also named as a defendant in the Brackeen case.

The Brackeens originally won the case, but it has since been appealed and sent to the Supreme Court. The main defendant in the case is now Interior Secretary Deb Haaland, the first Native American to hold a cabinet position.

Other families and states have since joined the Brackeens in the case. Texas, Louisiana and Indiana are all part of the suit as well as adoptive couples from those states. The Cherokee Nation joined the defense of the original case in 2018, but since then, the Oneida Nation, Quinault Indian Nation and Morongo Band of Mission Indians have come to Haaland and the federal government’s side in the issue.

The plaintiffs suing to end ICWA are arguing that the law is unconstitutional because it discriminates on the basis of race by forcing states to give Native Americans better treatment in placement proceedings for adopted children. The lawsuit also claimed that Congress violated state rights and exceeded their authority with the ICWA by meddling with state courts and agencies that handle child welfare.

Regardless of what happens in the cases, ACF “is going to keep working to encourage collaboration between states, tribes and courts,” Contreras said.

‘A traumatic history’

The U.S. has a “a lot of traumatic history that needs to be overcome when it comes to separation of Native American children and families,” Contreras said. “You can’t lead in child welfare without acknowledging the effects of Indian boarding schools and family separation that was forced upon Native American families. That’s why ICWA was passed.”

The history of Native American children in state custody in the U.S. and Canada came to the forefront of national and international attention when investigations uncovered the details about tribal boarding schools that forcibly assimilated Native American children in the 19th and early 20th centuries.

A federal investigation into the history of those boarding schools by the Interior Department came to a close in May after almost a year with a report that found more than 400 tribal boarding schools existed in the U.S., including 47 in Arizona, that operated from 1819 to 1969. The investigation also found unmarked burial sites at 53 different locations of former tribal boarding schools, with more expected to be uncovered.

Many of the children taken to those boarding schools never made it back home, according a press release about the report. Each of those children is a missing family member and a source of “intergenerational trauma,” Haaland said in the press release.

“Congress came together to pass ICWA to acknowledge that that history needs to be overcome,” Contreras said. “Living out the long spirit of ICWA is central to this. It’s really what it’s all about.”

The saddening history of tribal board schools also had international attention after Pope Francis apologized for Christianity’s role in organizing Indian boarding schools during a visit to Canada in July, saying he was “deeply sorry.”

Congress is considering a bill to create a “Truth and Healing Commission on Indian Boarding School Policies.” In June, the House Natural Resources Committee approved the bill creating the commission, which would have subpoena power, investigate history of abuse and make recommendations for how the federal government can “adequately hold itself accountable for, and redress and heal, the historical and intergenerational trauma inflicted by the Indian Boarding School Policies.”

The Truth and Healing Commission would bring “a righteous reckoning of our history,” U.S. Rep. Raúl Grijalva, D-Tucson and chairman of the committee, said about the bill in June.

A few Pascua Yaqui children have grown up and come back to the tribe after being sent to families outside the tribe, Yucupicio said, and they’re “always struggling and say ‘what do I need to do? What do I need to learn about being Yaqui.”

“Especially the ones that go to other tribes,” Yucupicio said. “They learn that way of living instead of our way. We make sure that we try to match children with Yaquis and keep them as close to a Yaqui family or Yaqui communities. It’s a hard thing to do.”

Bennito L. Kelty is’s IDEA reporter, focusing on Inclusion, Diversity, Equity and Access stories, and a Report for America corps member supported by readers like you.

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