Tribal leaders and others gather outside of the federal courthouse in New Orleans, Louisiana, where arguments in an Indian Child Welfare Act case took place on March 13. 2019. Photo by Indianz.Com (CC BY-NC-SA 4.0)

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'They are not your children': Future of Indian Child Welfare Act in hands of appeals court

Thursday, March 14, 2019

By Acee Agoyo

NEW ORLEANS, Louisiana -- Tribal leaders expressed optimism after a federal appeals court here heard arguments in a case that will determine the fate of the Indian Child Welfare Act.

ICWA was enacted by Congress in 1978 to address the high rates of Indian children being removed from their homes. The law recognizes the need for tribes and their families to be involved in proceedings affecting their most precious resource.

"The Indian Child Welfare Act is a best practice that has been very successful policy for Indian Country, to right the wrongs of the Indian removal period and make sure that our families remain whole and our nations remain whole," Tyson Johnston, the vice chairman of the Quinault Nation, told Indianz.Com after the hearing on Wednesday.

Vice Chairman Tyson Johnston of the Quinault Nation is among the tribal leaders who came to New Orleans to attend the Indian Child Welfare Act hearing. #ProudtoProtectICWA pic.twitter.com/5H826epkDB
— indianz.com (@indianz) March 13, 2019

ICWA "has been in place for 40 years," Chairman Tehassi Hill of the Oneida Nation added. "It does a great job in making sure that Indian families stick together," he said after arguments in the case, known as Brackeen v. Bernhardt.

"It does the best to ensure that tribes, as political entities, can maintain our rolls and our membership for as long as possible," Hill told Indianz.Com outside of the historic courthouse where some of the key battles of the civil rights era played out.

Despite being recognized as the "gold standard" for child welfare policy, ICWA is under attack. A group of non-Indian families, backed by three sympathetic states, contend the statute is unconstitutional because it requires the "race" of Indian children to be taken into account.

Chairman Tehassi Hill of the Oneida Nation @OneidaNationWI also came to New Orleans for the hearing in the Indian Child Welfare Act case. #ProudToProtectICWA pic.twitter.com/0yQDYgMUEx
— indianz.com (@indianz) March 13, 2019

Such an argument goes against decades of precedent in which the government-to-government relationship between tribes and the United States is classified as political -- not racial. Still, the plaintiffs struck their own gold when they managed to get their case before a federal judge with little experience in Indian law and policy.

"They kind of shopped around for a while to find a court that would side with them," Hill said of the unusual legal maneuvers that resulted in ICWA being struck down last October.

But with the case now before a higher power, a coalition of tribes including Quinault and Oneida joined forces with the federal government in defense of ICWA. During a lengthy hearing on Wednesday morning, they called on the 5th Circuit Court of Appeals to rebuke the plaintiffs and reverse that prior ruling.

"If this court were to adopt plaintiffs' theory for affirming that unprecedented ruling, an entire title of the U.S. Code would be effectively erased," Eric Grant, a deputy assistant attorney general at the Department of Justice, told a panel of three judges. "But that theory, and that ruling, are wrong."

Indianz.Com on SoundCloud: Brackeen v. Bernhardt

Adam Charnes, an attorney who advocated for tribal interests, described ICWA as a law enacted pursuant to the "centuries-old trust obligation" owed by the U.S. to tribes. He said the law was written at a time when "upwards of one-third of all Indian children" were being removed from their families, communities and sovereign nations.

Against that backdrop, Charnes said the plaintiffs are seeking an "expansive holding" regarding ICWA that "would rewrite federal Indian law, overturning doctrines accepted, in some circumstances, for nearly two centuries."

"This court should reject those arguments," said Charnes, whose firm represents, the Quinault Nation, the Oneida Nation, the Cherokee Nation the Morongo Band of Mission Indians, the tribal government that intervened in the case to defend ICWA.

But Matthew McGill, an attorney representing the non-Indian plaintiffs, presented a different interpretation of the law. He said tribes shouldn't be able to play an "ICWA trump card" -- a quote taken from a recent U.S. Supreme Court case -- and interrupt proceedings affecting the welfare of Indian children.

If #ICWA opponents in Brackeen v. Bernhardt are successful, it will potentially impact the sovereignty of every tribe, because the plaintiffs view tribes as racial entities, not sovereign governments. #ProudtoProtectICWA #ICWAFact @chiefbillbaker @NCAI1944 @NativeChildren
— CherokeeNation (@CherokeeNation) March 13, 2019

"My clients opened their hearts and their homes to a child in need and embraced that child as a part of their family," McGill said of the plaintiffs, which include a non-Indian couple in Texas who was able to adopt child whose biological mother is a citizen of the Navajo Nation, which also has intervened in the case, and whose father is a citizen of the Cherokee Nation.

"They are here because the Indian Child Welfare Act turned their lives and their families upside down, solely because the children they took in were Indian children," McGill told the judges.

But McGill's arguments, as well as those of Kyle Hawkins, the Solicitor General of Texas, took a different turn during the hearing, which lasted about 90 minutes. Rather than focus on the "race" aspects of ICWA, they said the law must be struck down because it requires state officials -- including state court judges -- to follow child welfare policies that are not of their own making.

"The federal government may not command states and state officials to carry out a federal regulatory program, yet that is exactly what ICWA does," Hawkins said. "ICWA commandeers states to implement the federal government's preferred policies, contrary to state law."

"Our commandeering argument is not about whether ICWA is good policy or bad policy," Hawkins added in an attempt to steer the case away from the underlying issue of protecting Indian children. "The commandeering doctrine is about means, not ends."

In Minnesota, Natives Americans are only 1.4 percent of the population, but Native kids represent 23.9 percent of the kids in the state foster care system.

Without ICWA in place, these alarming numbers would be even HIGHER.#ProudtoProtectICWA
— Rebecca Nagle (@rebeccanagle) March 13, 2019

That line of thinking goes to the heart of the anti-commandeering doctrine that has been the subject of a number of recent Supreme Court cases. It's one that has been championed by conservative groups, including those seeking to undermine ICWA.

That's when the judges, who had largely been silent for most of the hearing, began to speak up, seemingly raising doubts about the positions being taken by the non-Indian couples and the states.

"ICWA has been around for a long time," observed Judge James L. Dennis "It definitely is to protect the culture of Indians. I don't see how you can call that commandeering."

Congress, he added, has the "authority to pass such laws and to finance them, also."

Several minutes later, a second member of the panel spoke up when Hawkins raised a state sovereignty argument against ICWA. That led to one of the most dramatic moments in the hearing.

"You used the words, 'your children,'" Judge Priscilla Owen told Hawkins. "They are not 'your children.'"

"They are members of the tribe before they are 'your children.'"

Though the 5th Circuit gave no indication of when -- or how -- it will rule, tribal leaders, advocates and attorneys who attended the hearing believe a strong case was made for ICWA. Vice Chairman Johnston of the Quinault Nation noted that his tribe works closely with Washington state to protect Indian children, which he said was a sign that the complaints advanced by opponents lack merit.

ICWA has always been questioned by "states that don't partner well with Indian tribes, like Texas, for example," he said. In addition to Texas, the states of Louisiana and Indiana are seeking to invalidate the law and the Bureau of Indian Affairs regulations that were written to strengthen compliance with the law.

"I think those challenges will continue to exist," said Johnston. "When nations like us are able to come together and work through these processes, it again reaffirms the decades and decades of good policy that this has been for our communities."

The Oneida Nation also enjoys a good relationship with Wisconsin when it comes to protecting Indian children, according to Chairman Hill. The state has enacted its own law to mirror the provisions of ICWA, he said.

"I think that's a great opportunity, when tribes have great relationship with their and their state legislatures, to bring these issues," Hill said of the Wisconsin Indian Child Welfare Act, which was enacted in 2009.

"So not only is there federal protection, there is state protection of tribes, at the local level, at the local courts," said Hill.

"I vow, as the Principal Chief of @CherokeeNation , that we will continue to devote the necessary resources to defending this most important law, and we will continue to be a leader in #IndianCountry...
— CherokeeNation (@CherokeeNation) March 13, 2019

A bipartisan coalition of attorneys general from 21 states in fact submitted a brief in defense of ICWA as part of the case. They took action after their counterpart in Texas -- who issued a statement on Wednesday calling for the end of a "separate and unequal system" affecting Indian children -- had instructed subordinates to stop following the law and to stop complying with the BIA's regulations.

The Texas Department of Family and Protective Services has since pulled back on that directive, which had been issued by Attorney General Ken Paxton, a Republican, barely three weeks after the lower court's ruling in the case. The 5th Circuit subsequently placed a hold on that decision pending resolution of the appeal.

Briefs were also filed on behalf of 325 tribal nations, 57 Native organizations, 31 child welfare organizations, Indian and constitutional law scholars and seven members of Congress from both parties.

“ICWA is vital to the well-being of Native children and the stability and integrity of Native families today,” 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 hearing.

“We can’t afford to go back to the days when massive numbers of Native children were forcibly removed from their loved ones and were often separated from their families with little hope of ever seeing them again,” the organization said. “It’s not an option.”

Protect Native identity.
Protect Native sovereignty.
Protect Native families.
Protect Native children.
Protect our future.
Protect ICWA. #ProudtoProtectICWA pic.twitter.com/ruzFJJgGTt
— Whitney Sawney (@whitneysawney) March 13, 2019

Regardless of the way the 5th Circuit rules on ICWA, further appeals are expected. The court could be asked to put the case to a larger panel of judges, meaning another hearing would be required.

An appeal to the Supreme Court, whose membership has shifted in a more conservative direction, is also a reality. The last ICWA case that went before the justices was Adoptive Couple v. Baby Girl and it didn't turn out so well for tribal interests.

In the 5-4 decision, the court allowed a non-Indian couple to adopt a Cherokee Nation girl over the objections of her biological father, who is a citizen of the tribe. The majority opinion written by Justice Samuel Alito was the one that sounded the alarms on the "ICWA trump card."

The five justices who went against tribal interests in that June 2013 ruling remain on the court. In contrast, one of the members who defended the ICWA rights of the Cherokee parent, is no longer there.

"This father wants to raise his daughter, and the statute amply protects his right to do so," the late justice Antonin Scalia wrote in his dissent. "There is no reason in law or policy to dilute that protection."

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.