Tony Wood, left, and Frank LaMere, citizens of the Winnebago Tribe, are seen in front of a banner during the 16th Annual Memorial March to Honor Our Lost Children in Sioux City, Iowa, on November 21, 2018. The march began in response to the deaths of three Indian children in foster care. Photo by Kevin Abourezk

Law | National | Politics

Tribes push back as Indian Child Welfare Act case heats up

Thursday, February 7, 2019

By Acee Agoyo

The Indian Child Welfare Act is under attack and tribes are pushing back after conservative and Christian groups joined a closely-watched battle over the landmark federal law.

In a series of briefs filed this week, the non-Indian interests took their biggest shots at ICWA to date. They called the 1978 law, which was written in response to the large numbers of tribal children being taken from their communities, an illegal act that must be struck down by the courts.

"ICWA was motivated by good intentions—but today, it imposes race-based mandates and prohibitions that make it harder for states to protect Native American children against abuse, and extraordinarily difficult for them to find the loving, permanent, adoptive homes they often need," a coalition of conservative legal groups wrote in a brief on Thursday.

That conservative coalition included the Goldwater Institute, named for the late former U.S. Senator Barry Goldwater. Tribal advocates have been eager to point out that the Republican lawmaker from Arizona was a supporter of ICWA during his time in Congress.

But distinctions like that matter little in this heated battle. A group called the Christian Alliance for Indian Child Welfare, whose Twitter feed is filled with references to God and Jesus Christ, took pains to avoid mentioning religion in its brief but it too called for the law to be struck down as unconstitutional, arguing that people like Goldwater overstepped their authority in enacting it.

The #DefendICWA campaign is real: "We are dismayed that opponents of the Indian Child Welfare Act and tribal sovereignty continued to perpetuate damaging falsehoods in briefs filed this week," leaders of four tribes said. Full Statement: https://t.co/z2ZNOr1eSf pic.twitter.com/HpZQxSeBLR
— indianz.com (@indianz) February 6, 2019

"The ICWA is a broad and far-reaching law that has little or nothing to do with commerce," the group wrote in a brief filed on Wednesday. "And it affects individuals that have no connection to, or have actively chosen to avoid entanglement with, tribal government."

The Project on Fair Representation, a group funded by conservative donors and organizations, is not known for any work in Indian law or policy. That didn't stop its attorneys from describing ICWA in an entirely different manner than Congress did when it sought to protect tribes and their communities.

To the contrary, according to the group's brief, ICWA's sole goal seems to be one of "placing Indian children with Indian strangers, often over the objection of their birth parents and their foster parents who have nurtured them from an early age."

The clash between what tribes believe is settled and what others are trying to tear down comes in a case known simply as Brackeen. The outcome will determine whether ICWA, often described as the gold standard for child welfare, survives or falls, four decades after it became law, when separating Indian children from their communities was the norm.

"Passed more than 40 years ago by Congress, ICWA was designed to reverse decades of cultural insensitivity and political bias that had resulted in up to a third of all Indian children being forcibly removed from their families, their tribes and their cultural heritage," the leaders of the the Cherokee Nation, the Morongo Band of Mission Indians, the Oneida Nation and the Quinault Nation said in a joint statement on Wednesday.

"ICWA ensures the best interests and wellbeing of Native American children are protected. ICWA preserves the stability and cohesion of tribal families, tribal communities and tribal cultures," the leaders said. "As federally-recognized sovereign nations, we have the duty, the responsibility, and the wisdom to protect our children."

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

The fight is now before the 5th Circuit Court of Appeals. Oral arguments will take place on March 13 in New Orleans, Louisiana, and already the affair is shaping up to be a high-profile one.

On Wednesday, as the first of non-Indian brief surfaced, the court quickly granted a motion to expand the hearing. Each side will be given 30 minutes, up from the normal 20, to present their arguments.

But already, tribes are at a disadvantage. They lost the first round in Brackeen and it was a major setback -- a federal judge last October struck down ICWA as unconstitutional, declaring it to be a "race-based statute" that treats Indian children differently because of their ancestry or heritage.

Although that holding goes against decades of precedent in Indian law cases, it was quickly embraced by conservative, religious and adoption groups. They have been trying to weaken ICWA since 1978 but they hadn't come anywhere close to taking it down on their own.

Instead it took some creative maneuvering by a group of non-Indian foster parents and the state of Texas. By strategically placing the complaint before a federal jurist with little experience in Indian law -- no tribes are located in the district where Judge Reed O'Connor is based and he's the only judge on active status there, meaning he's the only one who can hear a case -- they were able to defeat ICWA after just one year of litigation.

Standing our ground for Native Children pic.twitter.com/gfgeRBSW5A
— Native American (@Defendicwa) September 23, 2016

By that time, two more states -- Louisiana and Ohio -- intervened on the side of the non-Indian parents and Texas. The four tribes -- Cherokee, Morongo, Oneida and Quinault -- were also granted a role in the case but their defense of ICWA fell on deaf ears.

“Make no mistake, this is an intentional and direct attack on tribal sovereignty and our families and children,” Sarah Kastelic, the executive director of the National Indian Child Welfare Association, told tribal leaders just a couple of weeks after the ruling came out.

That same week of the National Congress of American Indians convention last October, Texas Attorney General Ken Paxton, a Republican, instructed the state to stop complying with ICWA and to stop complying with Bureau of Indian Affairs regulations that were written to strengthen compliance with the law.

"If you don't think ICWA is under threat, you haven't read the paper," Mike Andrews, the top Republican staffer for the Senate Committee on Indian Affairs, told tribal leaders at NCAI's 75th annual meeting. Two key members of the committee have since submitted a brief to the 5th Circuit in defense of the law.

The 5th Circuit also has granted a reprieve to the tribes and to the federal government, whose officials are also named as defendants in the case. Judge O'Connor's ruling has been placed on hold while the appeal is pending, and Paxton had to pull back on his letter that declared ICWA all but dead in Texas.

"As long as the 5th Circuit stay remains in effect, the provisions of Section 4, The Indian Child Welfare Act, will apply to pending DFPS litigation," the website of the Department of Family and Child Protective Services now reads.

Although the 5th Circuit is moving quickly to resolve the case -- a motion to expedite was granted in December -- there is no timetable for a decision. Regardless of the outcome, many observers expect an appeal to the U.S. Supreme Court is all but guaranteed.

The last time an ICWA matter went to the highest court in the land, 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.

An update on Brackeen, the Indian Child Welfare Act case being closely watched across the nation. The 5th Circuit Court of Appeals will hear arguments during its 9am session on March 13, 2019. The hearing takes place in New Orleans, Louisiana. #DefendICWA pic.twitter.com/Sjr69n9ulm
— indianz.com (@indianz) February 6, 2019

The ruling, issued in June 2013, was devastating to the father and the tribe. But since the court refused to entertain request to have ICWA declared unconstitutional, opponents have continued their efforts to undermine it.

"We remain committed to protecting the constitutionality of ICWA for Native children, families, and tribes. We firmly believe that our rights, and our children’s rights, will be affirmed and reinforced," the Cherokee, Morongo, Oneida and Quinault leaders said in their statement.

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 and will be arguing at the hearing on March 13.

"I take my trust responsibility seriously," Tara Sweeney, the new Assistant Secretary for Indian Affairs, told NCAI last October in reference to the case. Sweeney, who is the first Alaska Native woman to serve in the position, is one of the named defendants.

ICWA and Congress

In passing the Indian Child Welfare Act in 1978, Congress reacted to a crisis of Indian children being taken from their communities at high rates, often without input from their families or their tribal governments. Key findings from the law:

• "[T]here is no resource that is more vital to the continued existence and integrity of Indian tribes than their children and that the United States has a direct interest, as trustee, in protecting Indian children who are members of or are eligible for membership in an Indian tribe"

• "[A]n alarmingly high percentage of Indian families are broken up by the removal, often unwarranted, of their children from them by nontribal public and private agencies and that an alarmingly high percentage of such children are placed in non-Indian foster and adoptive homes and institutions" • "The Congress hereby declares that it is the policy of this Nation to protect the best interests of Indian children and to promote the stability and security of Indian tribes and families by the establishment of minimum Federal standards for the removal of Indian children from their families and the placement of such children in foster or adoptive homes which will reflect the unique values of Indian culture, and by providing for assistance to Indian tribes in the operation of child and family service programs."

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.