Marchers take part in the 16th Annual Memorial March to Honor Our Lost Children in Sioux City, Iowa, on November 21, 2018. Photo by Kevin Abourezk

Law | National | Politics | Trust

Court puts hold on controversial Indian Child Welfare Act ruling

Tuesday, December 4, 2018

By Acee Agoyo

A controversial ruling which struck down the Indian Child Welfare Act as unconstitutional has been put on hold pending an appeal by tribes across the nation.

In an order on Monday, the 5th Circuit Court of Appeals granted a stay requested by the tribes. The decision came over the objections of state governments that are trying to undermine the landmark federal law and non-Indians who are attempting to adopt Indian children.

But with the stay in hand, the Cherokee Nation, the Morongo Band of Mission Indians, the Oneida Nation and the Quinault Nation are planning to mount a strong defense of ICWA, which was signed into law 40 years ago last month to keep tribal children connected to their communities.

"We strongly believe the ruling holding the Indian Child Welfare Act is unconstitutional was wrong, will ultimately be reversed on appeal, and as a result, the rights of Indian children, families and communities protected by the Indian Child Welfare Act will be affirmed and reinforced," the tribes said in a joint statement after the stay was granted.

Indanz.Com Video by Kevin Abourezk: Marchers Honor Native Children Lost to Foster Care

The tribes will have to move quickly to accomplish that goal. In a separate order on Monday, the 5th Circuit granted a request by the states of Indiana, Louisiana and Texas to expedite the appeal.

The tribes had opposed the request but the court tentatively scheduled oral arguments for early March, according to a notice sent to the parties. An aggressive schedule for briefing -- the first one is due right after Christmas -- shows that the case, which many believe will wind up before the U.S. Supreme Court, is moving forward quickly.

In the meantime, the stay is seen as preserving the status quo for ICWA, long hailed as the gold standard for ensuring that tribes are at the table in decisions affecting their most precious resource.

"This stay decision protects children from potential abuse and forced separation from their families," the tribes said in their statement. "As a result, tribal families and their children in Texas and Indiana will continue to be protected from the types of abusive child welfare practices that Congress outlawed 40 years ago when it enacted ICWA."

But even though the three states presented their expedited request for an appeal as a means of resolving outstanding issues as soon as possible, the record indicates something different. Following the October 4 ruling in the case, Texas Attorney General Ken Paxton, a Republican, instructed the Department of Family and Protective Services to stop complying with ICWA and to stop adhering to Bureau of Indian Affairs regulations that were written to strengthen compliance with the law.

According to an October 25 letter, which Paxton wrote a full month before asking for the expedited appeal, "the ruling is binding on Texas."

"DFPS should notify caseworkers, in-house attorneys, district attorneys, and state courts that ICWA and the [BIA's] final rule are no longer good law and should not be applied to any pending or future child custody proceeding in Texas," Paxton wrote.

Why are tribes fighting to overturn the court decision striking down the Indian Child Welfare Act as unconstitutional? “50 Cherokee kids in Texas right now are in ICWA cases,” said attorney Keith Harper. They need ICWA’s protections, he said. #NCAI75 #DefendICWA pic.twitter.com/C98o7JVJVm
— indianz.com (@indianz) October 24, 2018

The directive came as a surprise to the tribes, who intervened early on in the litigation. They said they weren't informed until three weeks later, thus threatening their ability to participate in child welfare proceedings.

"This means, among other things, that the tribes will no longer receive notice of child-custody and termination-of-parental-rights proceedings involving Indian children; will be denied their statutory right to exclusive jurisdiction over certain Indian children; will be denied mandatory intervention; and will be denied their statutory right to challenge child-placement and parental-termination decisions," the tribes wrote in their November 19 motion to stay the lower court's decision.

"Just as important, Indian children will be denied the protections Congress thought essential to prevent the unjustified breakup of Indian families, including restrictions on the validity of a parent’s voluntary consent to termination of parental rights; the right of a child domiciled on a reservation to have custody determined by a tribal court rather than a state court; the requirement that active efforts be made to maintain an Indian family; and the preference for continuing placement of Indian children with their families and communities," the motion read.

The state's decision to ignore ICWA has an immediate impact on the Cherokee Nation, according to attorney Keith Harper, whose law firm is representing the four tribes. During a panel presentation at the National Congress of American Indians 75th annual convention in October, he said 50 Cherokee children are the subject of welfare proceedings in Texas.

"We're likely to prevail on appeal," said Harper, a Cherokee citizen and former U.S. ambassador.

The defense of ICWA will proceed with the involvement of the federal government. On Monday -- the last day possible -- the Department of Justice filed a notice of appeal of the lower court's decision.

Tara Sweeney, the new Assistant Secretary for Indian Affairs for the Trump administration, had quickly responded to the October 4 ruling. But it was unclear up until now whether the United States was going to challenge the controversial decision.

"I take my trust responsibility seriously," Sweeney said at NCAI's 75th annual convention, which took place in Denver, Colorado, in late October.

The BIA has not responded to a request for comment about the state of Texas' decision to ignore the ICWA regulations, which came into force toward the end of the Obama administration.

The October 4 decision was issued by Judge Reed O'Connor, a Republican appointee. He has little experience in Indian issues -- the federal court where he serves has no tribes in the district.

His ruling left open several unanswered questions. He did not say whether it applied to the entire nation, to just the Northern District of Texas or the cases in which the non-Indians are trying to adopt Indian children.

He did not explore whether parts of ICWA could be saved either, instead striking down the entire law as one based on "race." The holding went against decades of precedent.

Why is the Indian Child Welfare Act still needed in 2018? The rate of all children in foster care is 5 out of 1,000. “For tribal children it’s 15 out of 1,000,” said Sheri Freemont Casey Foundation Indian Child Welfare Program. #NCAI75 #DefendICWA pic.twitter.com/LElsQOIVFN
— indianz.com (@indianz) October 24, 2018

"No matter how defendants characterize Indian tribes—whether as quasi-sovereigns or domestic dependent nations—the Constitution does not permit Indian tribes to exercise federal legislative or executive regulatory power over non-tribal persons on non-tribal land," O'Connor wrote.

O'Connor also refused a request by tribes to stay his own ruling while those issues, along with others, are considered on appeal.

"While the decision was limited to the Northern District of Texas, the stay was issued by the Fifth Circuit Court of Appeals and will ensure that ICWA and the Congressionally-mandated protections it has provided for 40 years remain in place until this rogue Texas decision is reversed on appeal," the California Tribal Families Coalition said in a statement on Tuesday.

California Attorney General Xavier Becerra, a Democrat who has worked closely with tribes on ICWA issues, has confirmed that his state will continue to follow the law. The Morongo Band is based in California.

“Make no mistake, this is an intentional and direct attack on tribal sovereignty and our families and children,” Sarah Kastelic, executive director of the National Indian Child Welfare Association, said of recent court decision striking down ICWA as unconstitutional. #NCAI75 pic.twitter.com/E3Z6wCLUuY
— indianz.com (@indianz) October 23, 2018

Key members of Congress are also endorsing ICWA, which was signed into law on November 8, 1978. A bipartisan group of lawmakers have introduced resolutions which call on the federal government to "continue working with Indian tribes and states to fully uphold and implement the Indian Child Welfare Act."

“In New Mexico and around the country, Native children, like all children, thrive when they are able to grow up with the support of their families, communities, and cultures,” said Sen. Tom Udall (D-New Mexico), the vice chairman of the Senate Committee on Indian Affairs

“In 1978, Congress enacted the Indian Child Welfare Act to ensure that best practices in child custody for Native communities are in place, keeping families together and kids healthy and safe," Udall said.

The Senate version of the resolution is S.Res.707. The House version is H.Res.1159.

The ICWA case is known as Brackeen v. Zinke and Texas v. Zinke. Secretary Ryan Zinke and other officials at the Department of the Interior and the Department of Health and Human Services are named as defendants

ICWA and the Media

The Native American Journalists Association recently updated its guide to ethical reporting on the Indian Child Welfare Act.

"It’s not a journalist’s duty to determine if a child is Native 'enough,' but whether or not they are citizens under Tribal law," the guide states. "Reporting phenotypes and blood percentages is culturally offensive, and disregards and diminishes the political rights of Indigenous people."

The document can be found on naja.com.