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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.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
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" ICWA and the Media
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