The 5th Circuit Court of Appeals in New Orleans, Louisiana. Photo by Indianz.Com (CC BY-NC-SA 4.0)

Law | National

Indian Country asks appeals court to protect #NativeChildren in critical case

Wednesday, March 13, 2019

By Acee Agoyo

NEW ORLEANS, Louisiana -- Ahead of a critical court hearing here, leaders of Indian Country organizations called for the reversal of a judge's decision that struck down the Indian Child Welfare Act as unconstitutional.

The 5th Circuit Court of Appeals is hearing arguments in Brackeen v. Bernhardt on Wednesday morning. Leaders said the outcome will determine whether tribes will be able to protect Native children, who are removed from their homes at higher rates than their peers.

“We look forward to the appeals court’s review today of the lower court’s decision,” said Dr. Sarah Kastelic, the executive director of the National Indian Child Welfare Association. “The district court ruling misapprehends the government-to-government relationship between tribal nations and the federal government for over two hundred years.”

“Never before has a federal court found ICWA unconstitutional–in fact, both federal courts and state high courts have rejected challenges to ICWA’s constitutionality time and time again since its enactment in 1978,” said Kastelic, who is Alutiiq from the Native Village of Ouzinkie in Alaska.

Native children and families are being jeopardized by a recent ruling on the Indian Child Welfare Act. Join us on 3/13 at 9am PT for a Tweet Chat using #ProudtoProtectICWA to discuss why #ICWA matters today. https://t.co/WSpH1qnl2B pic.twitter.com/B3geJQZo9l
— NICWA (@NativeChildren) March 7, 2019

President Jefferson Keel of the National Congress of American Indians added: “Indian Country welcomes the Fifth Circuit Court of Appeals’ review in this matter as the district court’s clearly erroneous ruling has led to uncertainty for all American Indian and Alaska Native children and their families. Congress, through its unique relationship with tribal nations, enacted the Indian Child Welfare Act to stop concerted efforts to actively remove Native children from their families.”

“Today ICWA is needed more than ever to ensure that Native children, the future leaders and innovators of Indian Country, are protected and, where possible, can grow up rooted in their cultures, languages, and communities,” said Keel, who also serves as lieutenant governor of the Chickasaw Nation.

As the court is taking up the case, NICWA, NCAI and other Indian Country organizations are hosting a Protect ICWA Campaign Tweet Chat at 12pm Eastern. Using the hashtags #ProudtoProtectICWA, #NativeYouth, #NativeChildren and #NativeFamilies, users on social media are asked to explain why the law is important to Native children, families and Native communities.

The case is before a panel of three judges: Jacques L. Wiener, Jr.; James L. Dennis and Priscilla R. Owen. The plaintiffs are non-Indian foster parents and the states of Texas, Louisiana and Indiana. They convinced a federal judge who doesn't have much experience in Indian law and policy to invalidate ICWA because they say the law is based on race.

The defendants are the federal government officials at the Department of the Interior, the Bureau of Indian Affairs and the Department of Health and Human Services who are charged with enforcing ICWA and overseeing compliance with the law. Five tribes -- the Cherokee Nation the Morongo Band of Mission Indians, the Oneida Nation, the Quinault Nation and the Navajo Nation -- have been allowed to intervene to defend ICWA.

The 5th Circuit will post audio of the oral argument in Brackeen later in the day on Wednesday at ca5.uscourts.gov. A copy also will be posted on the Indianz.Com SoundCloud.

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.