Indian Country outraged by decision in Indian Child Welfare Act case

Monday, October 8, 2018

A federal judge's decision to strike down the Indian Child Welfare Act continues to draw strong reactions across the nation.

The Trump administration weighed in on Monday, after officials initially declined to offer specifics on the devastating ruling, which was issued by a federal judge in Texas last week. Tara Sweeney, the recently-installed Assistant Secretary for Indian Affairs, said the Department of the Interior was committed to upholding the law, which was enacted to keep Indian children connected to their tribal communities.

"For nearly forty years, child advocacy organizations across the United States have considered the Indian Child Welfare Act to be the gold standard of child welfare policy," Sweeney said in a statement. "The Department of the Interior strongly opposes any diminishment of ICWA’s protections for Indian children, families, and tribes."

"The Department will continue to work with tribes and states to implement ICWA moving forward," Sweeney, who is Inupiat from Alaska, continued. "We reiterate our support for ICWA’s goals of ensuring the safety of Indian children, maintaining Indian families, and promoting tribal sovereignty."

The California Tribal Families Coalition, which has been working for years to strengthen compliance with ICWA, called the October 4 decision "unprecedented." Though that the ruling does not apply to California, home to the largest Native population in the United States, the group said it puts tribal families at risk.

“Those of us who were raised in Indian Country, those of us who raise our children on the reservations, those of us who know Indian families – we know that ICWA protects our children," Robert Smith, who serves as chairman of the California Tribal Families Coalition and as chairman of the Pala Band of Mission Indians, said in a press release. "This targeted and well-financed attack on ICWA only reminds tribes of the long and tortured history we have endured in the United States.”

The Partnership for Native Children also struck back, calling the decision "an outlier -- out of step with the law and constitutional jurisprudence." The ruling in fact marks the first time since 1978, when ICWA was put on the books, that a federal judge has declared it to be a "race-based" statute.

"Although this decision is limited in application, it serves as a roadmap for other ICWA litigation intending to overturn ICWA and we should expect future litigation seeking to undermine tribal sovereignty and federal Indian law writ large," the organization, which was started by a group of Native women, said in a statement.

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As the litigation continues, the nation's largest and most prominent Indian organizations vowed to continue defending the law. It's likely the dispute will wind up before the U.S. Supreme Court, whose last ICWA case went against tribal interests back in 2013.

"This egregious decision ignores the direct federal government-to-government relationship and decades upon decades of precedent that have upheld tribal sovereignty and the rights of Indian children and families," the National Indian Child Welfare Association, the National Congress of American Indians, the Association on American Indian Affairs and the Native American Rights Fund said in a joint statement. "Through 40 years of implementation, ICWA’s goal is to promote family stability and integrity. It continues to be the gold standard in child welfare policy."

"While this disturbing ruling is a pivotal moment for Indian Country, we vehemently reject any opinion that separates Native children from their families and will continue to fight to uphold ICWA and tribal sovereignty," the organizations said.

The Cherokee Nation, the Morongo Band of Mission Indians, the Oneida Nation and the Quinault Nation were allowed to intervene in the case as defendants. They plan to ask the judge who issued the decision for a delay while they take the matter to the 5th Circuit Court of Appeals, a step below the Supreme Court.

"We intend to seek a stay and we will appeal," attorney Keith Harper, a citizen of the Cherokee Nation whose law and policy firm is representing the four tribes, told Indianz.Com on Friday. "We strongly disagree with the decision and think ICWA - a law that has been to the Supreme Court on multiple occasions - is plainly constitutional."

The Trump administration has not yet confirmed whether it will be appealing.

The ruling was issued by Judge Reed O'Connor, a Republican appointee who has little experience in Indian law. He serves on the United States District Court for the Northern District of Texas, where no tribes are based.

The case is known as Brackeen v. Zinke and Texas v. Zinke. The individual plaintiffs are non-Indians who have been trying to adopt children who are eligible for citizenship in various tribes. They are being represented by a law firm with offices in Texas and Washington, D.C.

The Goldwater Institute, a conservative organization that has been trying to undermine ICWA with lawsuits around the country, is not representing any of the individual plaintiffs but has submitted a brief in the case.

The states of Texas, Louisiana and Indiana are also part of the challenge. Together, the plaintiffs succeeding in striking ICWA down as unconstitutional and in striking down recent Bureau of Indian Affairs regulations that were meant to strengthen compliance with the law.

As the Assistant Secretary for Indian Affairs, Tara Sweeney oversees the BIA.