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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Appeals court schedules lengthy hearing in Indian Child Welfare Act case

Monday, March 11, 2019

By Acee Agoyo

A federal appeals court will be hearing arguments this week in a case that tribes say goes to the very heart of their sovereignty and their government-to-government relationship with the United States.

The case, known as Brackeen v. Bernhardt, is being closely watched across the nation. The outcome will determine whether the Indian Child Welfare Act can continue to protect tribal children, who are removed from their homes at higher rates than their peers.

"Native children have the inherent right to remain with their family, and all that his or her tribe has to offer," Chief Bill John Baker of the Cherokee Nation said in a column on Indianz.Com on Monday.

'As we have seen through centuries of broken treaties, our sovereignty as a tribal nation is all too often ignored, the rights of our citizens trampled, compromising our very existence as a tribe," Baker continued.

"The breach of ICWA in the Texas v. Bernhardt decision is no different. It targets the very lifeline of tribes: our children," Baker said, pointing out that the states of Texas, as well as Louisiana and Indiana, are trying to undermine ICWA by claiming it is based on "race" instead of the unique legal and political relationship between tribes and the U.S.

Cherokee Nation Principal Chief Bill John Baker. Photo: Anadisgoi / Cherokee Nation

The Cherokee Nation is one of five tribes playing a role in the case, which will be heard by 5th Circuit Court of Appeals on Wednesday. Arguments are taking place in New Orleans, Louisiana, and the hearing is going to be a lengthy affair.

The court previously expanded the argument time for the plaintiffs and the defendants to 30 minutes each, up from the usual 20 minutes. But a dispute arose when Department of Justice, as a defendant, requested nearly all of the 30 minutes to defend the constitutionality of ICWA and the legality of Bureau of Indian Affairs regulations that were written to strengthen compliance with the law.

According to a February 25 letter from Eric Grant, a deputy assistant attorney general at DOJ, the "United States should be allocated the majority of the time allotted to appellants — 22 minutes — in order to fully present to this court the United States’ defense of the challenged statute and agency rule. The remaining 8 minutes of the appellants’ time may be allotted to the various Indian tribes that have intervened as defendants, who may share their experience as governmental entities affected by the statute and the rule."

The tribes objected a day later. Leaving just 8 minutes for the interests of their diverse governments is "unwarranted" and treats them like "second-class litigants," their attorney argued in a follow-up letter.

"While the Department of Justice has a general interest in supporting federal statutes, the tribes in this case are litigating for their 'continued existence and integrity,'" Adam Charnes, who is representing the Cherokee Nation, the Morongo Band of Mission Indians, the Oneida Nation and the Quinault Nation in the case. "For this reason, they deserve a full share of argument time."

The Navajo Nation, whose government also has been granted a role in the case, objected as well. The tribe agreed to have Charnes represent its interests at the hearing, only to see the U.S. to try to claim all of the allotted time.

Native families & communities across Indian Country are being brought together by #ICWA news. Tune in tomorrow @ 10:00 am PT to @180099native. Hear NICWA's executive director, Sarah Kastelic, join friends who feel the positive impact of ICWA firsthand. https://t.co/UYv4705cg5
— NICWA (@NativeChildren) March 10, 2019

According to Paul Spruhan, the Navajo Nation's assistant attorney general, the five tribes "have unique arguments relevant to the substantive legal issues in the case separate and apart from the federal defendants. These include the Nation’s arguments related to its two treaties, and the unique obligations the United States assumed in those treaties that are reflected in the Indian Child Welfare Act."

"Therefore, tribal appellants’ role in oral argument is not simply to 'share their experience as governmental entities affected by the statute,'" Spruhan wrote on February 26, quoting from the DOJ letter that appeared to downplay the interests of the five Indian nations.

But rather than pick sides, the 5th Circuit to expand the argument time, again. The result is an even longer hearing -- each side will get 44 minutes on Wednesday, ensuring Grant gets 22 minutes for the government and Charnes, who has argued cases at the appellate level across the nation, gets 22 minutes for the tribes.

The development, however, also means the plaintiffs in the case, the ones who went to court with the hopes of invalidating ICWA, also get 44 minutes to share their theories with the court. That's not exactly something tribal advocates are looking forward to as the future of the law hangs in the balance.

"The fact is ICWA has become a cause célèbre among conservatives who feel that Indians are run amok with special rights and non-Indians are the ones paying the price,” attorney Edward Ayoob told leaders of the United South and Eastern Tribes as they met in Washington, D.C., last week.

"That's just the political reality we have to deal with, and it's infected the courts," Ayoob said last Tuesday during USET's Impact Week in the nations capital.

The drama started last October, when a federal judge struck down ICWA as a statute based on "race." The decision from Judge Reed O'Connor, who works in a district where no tribes are based, went against decades of precedent In Indian law and policy cases.

The tribes and the federal government immediately appealed in order to defend ICWA, which became law in 1978 to address the high rates of Indian children being taken from their families and their communities. But even they are successful at overturning the lower court ruling, an appeal to the U.S. Supreme Court, whose majority tilts toward the conservative side, is expected.

"For over 40 years, ICWA has acknowledged the inherent right of tribal governments and the critical role they play to protect their member children and maintain the stability of 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 after the final briefs were filed with the 5th Circuit but before the dispute over the argument time arose.

"Child welfare experts across the country are working together with tribes, states, and allies to continue implementing and protecting ICWA as the “gold standard” in child welfare law and ensuring Native children and families receive the services they deserve," the organizations added. "Striking down ICWA would not only be wrong as a matter of law; it also would have devastating real-world effects by harming Native children and undermining the ability of child welfare agencies and courts to serve their best interest."

The 5th Circuit will post audio of the oral argument in Brackeen later in the day on Wednesday. The recording will be available on ca5.uscourts.gov.

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.