President Jonathan Nez of the Navajo Nation addresses youth workers at a banquet in Albuquerque, New Mexico, on July 18, 2019. Photo: Navajo Nation Office of the President and Vice President

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Indian Child Welfare Act survives legal attack but obstacles remain

Monday, August 12, 2019

By Acee Agoyo

Tribal leaders and advocates celebrated on Friday after a federal appeals court rebuffed opponents of the Indian Child Welfare Act in one of the most contentious and closely-watched cases in recent history.

Nearly every federally recognized tribe, either on their own or through Indian organizations, came together in defense of the law, which Congress passed more than four decades ago to keep Indian children connected to their communities. Their efforts were rewarded with a strong decision from the 5th Circuit Court of Appeals confirming that tribal nations -- as governments whose sovereignty is recognized the U.S. Constitution -- play important roles in the lives of their youngest and most vulnerable citizens.

“The 5th Circuit has affirmed the long-standing fundamental principle of Indian law that tribes are political sovereigns, not racial groups, and therefore Congress appropriately passes legislation like ICWA under its trust responsibility to recognize the important role the Nation plays in the lives of all Navajo children,” said President Jonathan Nez of the Navajo Nation, whose children are among those at the heart of the case, known as Brackeen v. Bernhardt.

The Indian Child Welfare Act case went before the 5th Circuit Court of Appeals, whose building is seen here in New Orleans, Louisiana. Photo by Indianz.Com (CC BY-NC-SA 4.0)

Inter-tribal organizations likewise hailed the 46-page decision, which came after the 5th Circuit heard arguments in the case during a lengthy hearing in Louisiana four months ago. They noted that Friday was International Day of the World's Indigenous Peoples, whose mission draws attention to the special measures -- such as ICWA -- that are necessary to protect the cultures and ways of life of the first Americans.

"This ruling is a strong affirmation of the constitutionality of ICWA and the inherent tribal authority to make decisions about the well-being of member children, whether they live on or off of tribal lands," said Dr. Sarah Kastelic, the executive director of the National Indian Child Welfare Association, one of the organizations that helped lead the #DefendICWA campaign.

"ICWA remains the gold standard of child welfare policy and practice; it is in the best interest of Native children," said Kastelic, who is Alutiiq and a citizen of the Native Village of Ouzinkie.

Despite the favorable outcome, ICWA is not completely safe. In a statement, the office of Texas Attorney General Ken Paxton, a Republican who filed the lawsuit along with the non-Indian couples who are trying to adopt tribal children, hinted of further legal drama.

"We are disappointed in the panel’s decision which fails to provide justification for the federal government preventing Texas law from putting the interests of children first," the statement provided to Indianz.Com on Monday read. "While we are still reviewing the opinion, we anticipate seeking further appellate review of the important issues raised by this case."

Indianz.Com on SoundCloud: 5th Circuit Court of Appeals - Brackeen v. Bernhardt - March 13, 2019

And while the 5th Circuit, as a whole, upheld the legality of ICWA against every challenge raised by Texas and the non-Indian parties, the court did not speak in unison. One of the three judges who heard the case on March 13 is planning to issue a "partial dissenting opinion," a footnote in the decision stated, though the document was not yet available as of early Monday afternoon.

Word of a dissent comes as somewhat of a surprise because Judge Priscilla Owen had expressed some of the most forceful words about ICWA during the 90-minute hearing when Kyle Hawkins, the Solicitor General of Texas who was sent by Paxton's office to argue the case, attempted to claim all children -- including Indian ones -- as falling under state law.

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

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

But without her opinion in hand, it's not clear in which areas of the case Owen plans to dissent. She is considered one of the most conservative jurists on the 5th Circuit and she has strong connections to Texas, where she served on the state's highest court. She was nominated to the appeals court by Republican former president George W. Bush, a former governor of Texas.

One tribal advocate expressed hope that Owen would conclude that the non-Indian plaintiffs, along with the states of Texas, Louisiana and Indiana, lacked standing to file the lawsuit in the first place. The issue took up a significant amount of time during the arguments back in March.

Regardless of what the dissent contains, its mere existence is grounds enough for Paxton to pursue further appeals, as his statement indicated. He could ask a larger panel of the 5th Circuit to rehear the case. Or he could take it to the U.S. Supreme Court, whose most recent ICWA matter didn't turn out so well for tribal interests.

Fifth Circuit Court of Appeals Reaffirming the Constitutionality of ICWA

Read the full statement here: https://t.co/LpehoOSMKC #ProudtoProtectICWA #NativeChildren #NativeFamilies #IndigenousDay pic.twitter.com/d0pBHkEPsA
— NCAI (@NCAI1944) August 10, 2019

But for now, tribes and their supporters are welcoming what they read on Friday afternoon, characterizing it as an affirmation of ICWA's mission and as a rebuke of a controversial lower court ruling that placed the law in doubt.

"Today’s critical decision by the 5th Circuit reverses a rogue ruling from a lower court and marks a significant victory for Native American children, families and tribes," the California Tribal Families Coalition said in a statement. "This victory will ensure tribal children will remain with their tribes and connected to their culture and heritage."

California is home to the largest population of Native Americans in the nation and to a large number of ICWA cases. But unlike his counterparts on the other side of the issue, Attorney General Xavier Becerra, a Democrat, showed that protecting Indian children is not a partisan issue. As part of Brackeen, he led a bipartisan coalition of colleagues in 21 states in defense of the law.

"For more than 40 years, this landmark act has protected the best interests of Native American children and preserved the integrity of tribal families and tribal nations across the country," the statement from the California Tribal Families Coalition read. "As enacted by Congress, ICWA helped reduce the widespread practice of removing Native American children, often without cause and by force, from their families and tribes."

My colleagues & I filed a bipartisan amicus brief to defend the Indian Child Welfare Act. This 5th Circuit decision in Brackeen reaffirms the fundamental principles of Indian law & the Constitution. It ensures the best interests of Native children will continue to be protected. https://t.co/qI6fHApnAX
— Tom Udall (@SenatorTomUdall) August 9, 2019

Key members of Congress also stood up for ICWA in a bipartisan fashion. Eight Democrats and Republicans from the U.S. Senate and the U.S. House of Representatives. submitted a brief to the 5th Circuit, urging the court to uphold the constitutionality of the law.

"This 5th Circuit decision in Brackeen reaffirms the fundamental principles of Indian law & the Constitution. It ensures the best interests of Native children will continue to be protected," Sen. Tom Udall (D-New Mexico), the vice chairman of the Senate Committee on Indian Affairs, said in a social media post on Friday.

The high level of attention paid to the case speaks to the unusual way it proceeded. It was purposely filed in a certain federal court in Texas in order to get the complaint before a judge who has a history of striking down federal laws when asked to do so by Republican state officials.

"They kind of shopped around for a while to find a court that would side with them," Chairman Tehassi Hill of the Oneida Nation told Indianz.Com after the hearing in March. The tribe is one of the four who intervened in the case after learning of its significance.

Judge Reed O'Connor, who was nominated to the bench by George W. Bush, serves on a court where no tribes are based. He also has had little experience in federal Indian law and its principles, as evident in his controversial ruling in the case, which went against decades of precedent and long-standing policy.

Chairman Tehassi Hill of the Oneida Nation @OneidaNationWI thinks the attacks on the Indian Child Welfare Act are the result of some interesting legal maneuvers. The federal judge in Texas who struck down the law has little experience in Indian law or Indian policy, for example. pic.twitter.com/0JNQP7ViXU
— indianz.com (@indianz) March 13, 2019

The 5th Circuit, with its decision on Friday, corrected the record. Writing for the majority, Judge James L. Dennis said federal Indian laws like ICWA are not based on "race" but instead on the unique government-to-government relationship between the U.S. and tribal nations.

"The district court concluded that ICWA’s “Indian Child” definition was a race-based classification," Dennis wrote of O'Connor's ruling.

"We conclude that this was error," Dennis continued.

The 5th Circuit further affirmed that Congress exercises "plenary power" in the area of Indian affairs, as written in the U.S. Constitution. Laws like ICWA are therefore evidence of the "political" relationship between tribes and the federal government.

"Given Congress’s explicit findings and stated objectives in enacting ICWA, we conclude that the special treatment ICWA affords Indian children is rationally tied to Congress’s fulfillment of its unique obligation toward Indian nations and its stated purpose of 'protect[ing] the best interests of Indian children and promot[ing] the stability and security of Indian tribes,'" Denis wrote, quoting directly from the 1978 law.

Quinault Nation Vice Chairman Tyson Johnston: The Indian Child Welfare Act "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." #ProudToProtectICWA pic.twitter.com/yqDRzht181
— indianz.com (@indianz) March 13, 2019

Overall, the 5th Circuit rebuffed the non-Indian plaintiffs on all four of their substantive arguments, including the authority of the Bureau of Indian Affairs to issue ICWA regulation. The only issue on which they won was technical in nature -- it was the one on standing, or their ability to file the lawsuit in the first place.

Officials at the BIA, as well as the Department of the Interior and the Department of Health and Human Services, are named as defendants in the lawsuit. The Trump administration defended ICWA throughout the course of the litigation and sent Eric Grant, an attorney from the Department of Justice, to argue at the hearing in March.

5th Circuit Court of Appeals Decision

Brackeen v. Bernhardt (August 9, 2019)

Tribal Statement

Principal Chief Bill John Baker of the Cherokee Nation, Chairman Robert Martin of the Morongo Band of Mission Indians, Chairman Tehassi Hill of the Oneida Nation and President Fawn Sharp of Quinault Nation issued the following joint statement in response to the 5th Circuit Court of Appeals ruling in Brackeen v. Bernhardt. The four tribes intervened in the lawsuit after it was filed:

“The Fifth Circuit Court of Appeals reaffirmed what we already knew: the Indian Child Welfare Act is constitutional and serves the best interests of children and families. We are pleased that the court followed decades of legal precedent in its ruling, preserving a law that protects Indian children and allows them to retain their identity by staying within their families and tribal communities.
“Despite the misguided attacks on the law, today’s ruling speaks for itself. ICWA ensures that we have a process in place focusing first and foremost on the welfare and safety of children. This is why so many Americans from across the political spectrum have supported upholding the law. We want to thank the Trump administration, the Department of Justice, Deputy Assistant Attorney General Eric Grant, and the Department of Interior for their hard work fighting on behalf of children.”

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.