Fawn Sharp, who serves as president of the Quinault Nation and as the newly elected president of the National Congress of American Indians, is among the tribal leaders stepping up to defend the Indian Child Welfare Act. She is seen here at NCAI's 76th annual convention in Albuquerque, New Mexico, on October 23, 2019. Photo by Kevin Abourezk

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'We're under attack': Tribes defend Indian Child Welfare Act in critical case

Tuesday, November 12, 2019

By Acee Agoyo

The battle over the Indian Child Welfare Act is far from over as tribes continue to defend the landmark law against an attack from hostile state governments and non-Indians.

After initially deciding the closely-watched case in favor of Indian Country, the 5th Circuit Court of Appeals announced that it will hear the dispute all over again. A larger set of judges will now scrutinize the landmark law but tribal nations remain confident that their sovereign rights and their most precious resource -- their children -- will win out in the end.

“For centuries, the United States Congress, Executive Branch, and Supreme Court have affirmed the unique political status of tribal nations and Native people," 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 learning of the development last Thursday. "ICWA was enacted with that unique political status in mind and applies only to tribal nations that share a government-to-government relationship with the United States and to Indian children and families who share in that relationship."

"We are confident the Fifth Circuit will affirm ICWA’s strong constitutional grounding," the organizations, who are collectively running the Protect ICWA Campaign, added.

Protect ICWA Campaign joint statement on the Fifth Circuit Court of Appeals decision to rehear Brackeen v. Bernhardt: https://t.co/n3tfZ3A4XA pic.twitter.com/pO8vdYWdVO
— NCAI (@NCAI1944) November 7, 2019

In August, the appeals court did just that in the case known as Brackeen v. Bernhardt. After hearing the case in March, a panel of three judges issued a 46-page decision that largely upheld the constitutionality of ICWA, which Congress enacted in 1978 to stop Indian children from being taken from their communities at alarming rates.

“We never want to go back to the days when Indian children were ripped away from their families and stripped of their heritage," the leaders of the Cherokee Nation the Morongo Band of Mission Indians, the Oneida Nation and the Quinault Nation said in a joint statement. "We continue to believe that the Fifth Circuit decision affirming the constitutionality of ICWA was the right decision."

"While it is unfortunate that the attacks on this critical law continue, we are confident that the court will once again uphold the constitutionality of ICWA, as courts have repeatedly done over the past 40 years," the tribal leaders, who have set up the Protect Indian Kids website to explain why the law is considered the "gold standard" in child welfare policy and why it's still needed across the nation.

Not everyone, though, agrees with ICWA's goals. After losing the initial ruling, the states of Texas, Ohio and Indiana, along with non-Indians who want to adopt or have already adopted Indian children, asked the 5th Circuit to rehear the case, a request that was granted in an order issued by a panel of 15 judges from the court.

The Indian Child Welfare Act is more important than ever. We cannot go back to the horrors Native children experienced before ICWA became law. @ChuckHoskin_Jr #DefendICWA https://t.co/mf7K4cLIDm
— indianz.com (@indianz) November 5, 2019

"We're under attack," Bryce In the Woods, a council member from the Cheyenne River Sioux Tribe, said at e NCAI's 76th annual convention last month, stressing the importance of Indian children, as the generation that carries on traditions, cultures and languages, to sovereign nations.

"ICWA is under attack," he said. "We need to conquer it now."

Tribal advocates don't think the assault is anywhere near complete. Further appeals to the U.S. Supreme Court, where Indian Country decisions are often bad ones, are all but guaranteed.

“No matter who wins at the 5th Circuit, we are certain that the losing side is going to try and bring this case to the Supreme Court," Dan Lewerenz, a citizen of the Iowa Tribe of Kansas and Nebraska and a staff attorney at NARF, said at NCAI's meeting on October 24.

The Supreme Court's last ICWA case in fact went against tribal interests. By a vote of 5-4, the justices in 2013 ruled that a girl from the Cherokee Nation could be separated from her Cherokee father against his wishes. The court held that ICWA didn't protect the father's rights at all due to the unique circumstances of the situation with is daughter.

With the predicted appeal further down the line, the 5th Circuit appears to be moving quickly with the rehearing in Brackeen. According to a letter sent to attorneys on Thursday and an entry in the docket that was posted on Friday, the court tentatively set oral arguments in New Orleans, Louisiana, for the week of January 20, giving tribes just two months to prepare for the high-stakes affair.

In addition to the Cherokee Nation the Morongo Band of Mission Indians, the Oneida Nation and the Quinault Nation, the Navajo Nation has been allowed to participate directly in the lawsuit. Separately, hundreds and hundreds of tribes, representing every corner of Indian Country, have submitted or signed onto briefs in defense of ICWA.

Gil Vigil, a citizen of the Pueblo of Tesuque who serves as president of the National Indian Child Welfare Association, credited tribal unity with the prior victory in Brackeen. When the case came up at NCAI's meeting last month, he urged more of the same.

"This is what we need to do when sovereignty is threatened: to come together," Vigil said.

5th Circuit Court of Appeals Decision

Brackeen v. Bernhardt (August 9, 2019)

Tribal Reaction

The full statement from the Protect ICWA Campaign, consisting of the National Indian Child Welfare Association, the National Congress of American Indians, the Association on American Indian Affairs, and the Native American Rights Fund, follows:

“This summer, a three-judge panel of the Fifth Circuit upheld the constitutionality of the Indian Child Welfare Act (ICWA), and we remain confident that upon rehearing en banc the full court will do the same.

For centuries, the United States Congress, Executive Branch, and Supreme Court have affirmed the unique political status of tribal nations and Native people. ICWA was enacted with that unique political status in mind and applies only to tribal nations that share a government-to-government relationship with the United States and to Indian children and families who share in that relationship. We are confident the Fifth Circuit will affirm ICWA’s strong constitutional grounding.

In addition, for more than 150 years, the U.S. Supreme Court has recognized that this federal authority to legislate with regard to tribal nations and native people is not limited by reservation borders but extends to wherever Indians may live. When Congress enacted ICWA, it carefully balanced the respective powers of tribes, states, and the federal government to create process that protects Indian children nationwide.

ICWA has long been recognized as best practice in child welfare and it includes broad support in this case from, among others, 21 states, 325 tribal nations, 57 Native organizations, 31 leading child welfare organizations, Indian and constitutional law scholars, and members of Congress.

ICWA is vital for protecting the well-being of Indian children across the United States today and tomorrow. The Protect ICWA Campaign will continue to work with tribal nations, tribal leaders, and allies to ensure a strong Indian Child Welfare Act for future generations of Indian families.”

The full statement from Cherokee Nation Principal Chief Chuck Hoskin, Jr., Morongo Band of Mission Indians Chairman Robert Martin, Oneida Nation Chairman Tehassi Hill and Quinault Nation President Fawn Sharp follows:

“We never want to go back to the days when Indian children were ripped away from their families and stripped of their heritage. We continue to believe that the Fifth Circuit decision affirming the constitutionality of ICWA was the right decision. While it is unfortunate that the attacks on this critical law continue, we are confident that the court will once again uphold the constitutionality of ICWA, as courts have repeatedly done over the past 40 years. ICWA provides a process for determining the best interests of Indian children in the adoption and foster care systems, which is why it is overwhelmingly supported across the political spectrum. We remain devoted in our efforts to defend ICWA because our number one priority remains fighting for the wellbeing, health and safety of children and families.”

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.