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

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Tribal nations present united front in Indian Child Welfare Act case

Tuesday, January 22, 2019

By Acee Agoyo

A battle to save the Indian Child Welfare Act is shaping up to be one of the most consequential court cases in recent history.

Tribes, Indian organizations, Native women, key members of Congress, prominent legal experts and a slew of state governments are defending the historic law after a federal judge struck it down as unconstitutional. The goal of the united campaign is to ensure that Indian children remain connected to their communities, strengthening tribal sovereignty in the process.

"ICWA ensures the best interests and wellbeing of Native American children are protected," a joint statement from the the Cherokee Nation, the Morongo Band of Mission Indians, the Oneida Nation and the Quinault Nation read.

"ICWA preserves the stability and cohesion of tribal families, tribal communities and tribal cultures," the statement continued. "It maintains and reinforces the political and cultural connections between an Indian child and his or her tribe."

Joining the four tribes in the effort are 325 tribes, 57 Indian organizations, a handful of Native mothers and grandmothers, attorneys general from 21 states, 30 child welfare organizations, law professors from more than 20 law schools and seven members of Congress from both parties. In brief after brief, the broad coalition has demonstrated what is being called an "unprecedented" level of support for ICWA as the case moves forward.

“Our children are our ‘way of life’ and our future. Our children should never feel the fear of being taken away from their families, tribe, and cultural identity," said Myron Lizer, the newly inaugurated vice president of the Navajo Nation, whose government is among those staking a claim in the litigation. "Our ancestors have experienced historical trauma and we should not allow history to repeat itself."

FOR IMMEDIATE RELEASE - Navajo Nation thanks Arizona Attorney General for joining the defense of the Indian Child...
Posted by Navajo Nation President Jonathan Nez and Vice President Myron Lizer on Friday, January 18, 2019

The next stage of the battle, known as Brackeen v. Zinke, is fast approaching. Oral arguments before the 5th Circuit Court of Appeals are expected to take place in less than two months, regardless of the ongoing government shutdown that has hindered operations in parts of Indian Country.

At issue is a ruling issued by Reed O'Connor, a Republican-appointed federal district court judge in Texas who has little experience in Indian law. His October 4, 2018, decision upended decades of precedent and child welfare practices with its conclusion of ICWA as a "race-based" statute, instead of one based on the unique relationship between tribes and the United States.

The 5th Circuit has since put a hold on that decision, ensuring that ICWA remains in force in child welfare proceedings while the appeal is heard. Before the stay was put in place, Texas Attorney General Ken Paxton, a Republican, had instructed the state to stop complying with ICWA and to stop adhering to Bureau of Indian Affairs regulations that were written to strengthen compliance with the law.

The legal maneuvering leaves ICWA, which just celebrated its 40th anniversary, in a precarious position. The stay is only temporary, meaning the law is only one ruling away from being invalidated, a situation that Indian Country is hoping to avoid with its coordinated defense.

“Bottom line, ICWA works and the Fifth Circuit Court of Appeals should overturn the erroneous district court decision and support American Indian and Alaska Native children and families because it’s the right thing to do," National Congress of American Indians President Jefferson Keel said. NCAI, the largest inter-tribal organization in the U.S., is one of the many that has signed onto a brief in the case.

BREAKING: Joint Press Release from National Native Organizations on the Overwhelming Support for the Indian Child Welfare Act #ICWA #NativeChildren https://t.co/54QGfjbFdX pic.twitter.com/hJdjwx7sdd
— NICWA (@NativeChildren) January 18, 2019

The 5th Circuit has tentatively scheduled arguments for the week of March 11 though a date hasn't been finalized. It could be several more months before a decision is issued but observers believe the losing party will take the case to the nation's highest court.

The last time an ICWA matter went to the U.S. Supreme Court, it didn't turn out so well for tribal interests. By a vote of 5 to 4, the justices forced a Cherokee Nation father to separate from his daughter in Adoptive Couple v. Baby Girl.

The ruling, issued in June 2013, was devastating to the father and the tribe, but the court rebuffed efforts to declare ICWA as unconstitutional. The outcome, however, didn't stop conservative groups from attempting to further undermine ICWA with a number of lawsuits across the country.

None of those efforts panned out until Brackeen, in which the states of Texas, Indiana and Louisiana joined non-Indian couples in challenging the 1978 law and the BIA's regulations.

“When the Indian Child Welfare Act was passed by Congress and enacted 40 years ago, it rightly affirmed tribal sovereignty and sought to preserve a unique and special heritage for Native children and keep families together,” said Rep. Tom Cole (R-Oklahoma), a citizen of the Chickasaw Nation who is part of the Congressional member brief. “It is very concerning that the constitutionality of this important law is being questioned in the courts."

The outcome of Brackeen will have significant and immediate impacts. In Texas alone, at least 50 Cherokee children are the subject of pending cases, according to attorney and former U.S. ambassador Keith Harper, whose law firm is representing the Cherokee, Morongo, Oneida and Quinault tribes.

A decision to strike down or weaken ICWA will likely open the door to more legal challenges even though the attorneys general in 21 states have vowed to uphold it.

“ICWA has a strong track record of not only helping to ensure the continued vitality of Native American tribes, but also of benefitting children and families as well," said California Attorney General Xavier Becerra, a Democrat who has worked closely with tribes on ICWA issues.

California boasts the largest population of American Indians and Alaska Natives, and the court system there typically handles the largest number of ICWA cases of any in the nation, according to a review by attorney Kathryn E. Fort of the Indigenous Law and Policy Center at Michigan State University College of Law. Fort is part of the legal team representing the the Cherokee, Morongo, Oneida and Quinault nations.

Beyond the legal underpinnings, the campaign to save ICWA is deeply personal for many in Indian Country. Rosa Soto Alvarez, a council member from the Pascua Yaqui Tribe, counts herself as a success story -- without the law, she believes she would not have been able to stay connected to her own people.

"ICWA works," Alvarez said during NCAI's 75th annual convention last October, which the case was a major topic of discussion. "I'm proof."

“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

Alvarez shared additional details of her story in a brief she and other Native women submitted to the 5th Circuit. In it, she said she was the victim of abuse after being placed in a non-Indian foster home in Arizona, whose attorney general has joined the ICWA coalition.

"Alvarez experienced abuse and neglect, including being locked in a closet for several hours for misbehavior and being spat upon by a foster sibling," the brief reads. "Once the Pascua Yaqui Tribe was notified through ICWA of her foster care placement, the tribe intervened and Ms. Alvarez’s case was transferred from state court to tribal court. The tribe placed Ms. Alvarez and her biological sister with a Yaqui foster family and they were raised on the tribe’s reservation."

"ICWA is going to hit everyone personally in some way," Kandis Martine, an attorney with the Navajo Nation Department of Justice, said at NCAI last year. She said the tribe has been handling more than 560 ICWA matters in 28 states.

The federal defendants in Brackeen are officials at the Department of the Interior and the Department of Health and Human Services. The Trump administration has remained committed to defending ICWA from the ongoing attack.

"I take my trust responsibility seriously," Tara Sweeney, the new Assistant Secretary for Indian Affairs, told tribal leaders at NCAI's 75the annual meeting. Sweeney, who is the first Alaska Native woman to serve in the position, is one of the named 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.