From left: President Fawn Sharp of Quinault Nation, Council member Teresa Sanchez of Morongo Band of Mission Indians, Chairman Tehassi Hill of Oneida Nation and Chief Chuck Hoskin Jr of Cherokee Nation pose together outside of the 5th Circuit Court of Appeals in New Orleans, Louisiana, following a hearing on the Indian Child Welfare Act on January 22, 2020. Photo by Indianz.Com (CC BY-NC-SA 4.0)

'An Indian is an Indian is an Indian': Tribes defend sovereignty amid attack on Indian Child Welfare Act

NEW ORLEANS, Louisiana — Indian Country turned out in full force here on Wednesday to defend the sovereignty of tribal nations and their most valuable asset — their children.

Speaking outside the 5th Circuit Court of Appeals following arguments in a critical Indian Child Welfare Act case, tribal leaders remained confident that the law would survive an attack from hostile state governments and private parties. Congress enacted ICWA in 1978 to ensure that Indian children remain connected to their communities and their cultures.

"We all lived through a time when tribal children were taken from tribal homes, tribal communities," Principal Chief Chuck Hoskin Jr. of the Cherokee Nation, said after the lengthy hearing in case known as Brackeen v. Bernhardt. "We don't want to return to that time."

Fawn Sharp, the president of the Quinault Nation, also was optimistic about ICWA's future. But she was troubled by some of the questions posed by the judges on the court, most of whose members do not have a strong background in Indian law and policy.

"There still seems to be a very clear lack of understanding of inherent tribal sovereignty," said Sharp, who was recently elected president of the National Congress of American Indians, the largest inter-tribal advocacy organization in the United States. "It exists by virtue of who we are as Indigenous peoples and tribal nations."

Teresa Sanchez, a council member from the Morongo Band of Mission Indians, was bothered by the focus on blood quantum during the hearing, which lasted nearly 90 minutes. More than one judge brought up the issue in connection with a completely different case, one in which opponents of ICWA tried to undermine the law by questioning whether one particular child was, in effect, Indian enough.

"An Indian is an Indian is an Indian," said Sanchez. "You can't take that from us. It's inside of us. It's not blood. It's who we are."

Tehassi Hill, the chairman of the Oneida Nation, shared similar sentiments. He said tribes -- as sovereign nations -- decide who belongs to their communities, in the same way the U.S. determines citizenship requirements.

"For centuries, Indian children were taken from our homes, stripped of our language and culture," said Hill. "To combat those types of events, Congress I believe did the right thing and passed the Indian Child Welfare Act, so that Indian children can remain with their families and in the community."

Together, the Cherokee Nation, the Morongo Band of Mission Indians, the Oneida Nation and the Quinault Nation have been active participants in the closely-watched case. It began in October 2017 the state of Texas and a non-Indian couple sued the federal government, calling ICWA unconstitutional because it takes the "race" of children into account and forces states to adjust their child welfare programs to fulfill the goals of the federal law.

By the time a federal judge issued an explosive ruling striking down ICWA a year later, the dispute had grown to include the states of Louisiana and Indiana, as well as additional non-Indian couples, all of whom are trying to adopt Indian children or have already done so. They believe the law stands in their way.

But the tribes, along with the Navajo Nation, whose government was eventually allowed to intervene, scored a key victory before the 5th Circuit in 2019. A panel of three judges largely upheld the law in a decision released in August, though one member of the court quibbled with certain provisions directed at state governments.

Undaunted, the states and the non-Indian parties asked the 5th Circuit to rehear the case. The request was granted, which resulted in ICWA's fate being placed before a larger en banc panel of judges -- 16 to be exact, following the last-minute recusal of one of the members of the court right before arguments started on Wednesday morning.

As a result, the stakes are higher, and even more precarious for tribal interests. The 5th Circuit, though it's home to a number of Indian nations in Louisiana, Texas and Mississippi, does not have a positive record when it comes to Indian law and policy. The court's most recent decisions include ones in which the interests of state governments essentially trumped tribal sovereignty.

But whatever the outcome of the en banc proceeding, tribes and their advocates expect an appeal to the U.S. Supreme Court. They know the campaign to defend ICWA is far from over.

"We're going to continue to stand by ICWA," Chairman Hill of the Oneida Nation said on the steps of the appeals court on Wednesday. "It's a gold standard for family law and making sure that children are protected, and that tribes have the right to maintain those connections with children."

Inside the building, many of the same arguments presented at last year's hearing were rehashed by the states and the non-Indian parties, just in a different room and before a larger set of judges. The attorney for the individual plaintiffs pleaded his clients' case with almost the exact same words in fact.

"My clients opened their hearts and their homes to a child in need and embraced that child as a part of their family," Matthew McGill told the court. "They are here because the Indian Child Welfare Act's placement preferences turned their lives and their families upside down, solely because the child they took in is an Indian child, and they are not -- and cannot be, because of their race -- Indian families."

The lead named plaintiffs are Chad Brackeen and Jennifer Brackeen of Texas. They have already succeeded in adopting a boy from the Navajo Nation and are in the process of adopting the boy's sister in spite of their complaints about ICWA hindering their efforts.

Kyle Hawkins, the Solicitor General of Texas, advanced familiar arguments as well. He said ICWA violates the U.S. Constitution because it "commandeers" states by forcing them to follow child welfare policies dictated by the federal government. Regulations issued by the Bureau of Indian Affairs are illegal for the same reason, he told the court.

"ICWA is the rare federal statute that violates both anti-commandeering and non-delegation principles," said Hawkins, highlighting a legal doctrine that has gained traction in recent years, largely due to efforts by state governments and by conservative groups, including those seeking to undermine or invalidate ICWA.

Indianz.Com Audio: Brackeen v. Bernhardt - 5th Circuit Court of Appeals - January 22, 2020

Eric Grant, a deputy assistant attorney general at the Department of Justice, returned to the court for round two in Brackeen. The Trump administration has stood by ICWA since the start of the case, saying the law is needed because state standards in child welfare proceedings resulted in Indian children being removed from their homes as "alarmingly high" rates.

"The Indian Child Welfare Act establishes minimum federal protections for the children of members of Indian tribes, with whom the United States maintains a government-to-government relationship," Grant said.

Adam Charnes, an attorney representing the Cherokee Nation, the Morongo Band of Mission Indians, the Oneida Nation and the Quinault Nation, was another familiar figure at the 5th Circuit. He refuted the argument that ICWA infringes on states' rights.

"The vast majority of ICWA is directed at state courts," Charnes said. Some members of the 5th Circuit who asked questions during the hearing raised the same point, noting that the U.S. Constitution requires state courts to abide by federal law.

The only major difference between Wednesday's hearing and the one which took place last April was the inclusion of the Navajo Nation in the oral argument. Yet Paul Spruhan, the tribe's assistant attorney general, was forced more than once to address the blood quantum issues that some judges raised.

"The Navajo Nation -- a treaty tribe -- is here to defend the Indian Child Welfare Act as a statute that fulfills the federal government's treaty obligations to sovereign tribal nations," Spruhan told the court, calling attention to the legal document signed in 1868.

In addition to tribal officials, a large number of tribal citizens and tribal advocates attended the hearing, resulting in the court opening an overflow room for the crowd. Leaders and representatives 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, who collectively formed the Protect ICWA Campaign, were among those in New Orleans for the arguments.

“We are proud to be part of a broad bipartisan coalition supporting the Indian Child Welfare Act,” the organizations said after the hearing, pointing to state attorneys general and members of Congress who submitted briefs in defense of the law. “We are confident that the hearing before the full panel of judges signifies the Court’s recognition of how careful Congress was to craft ICWA as a model of cooperative federalism, and how important ICWA is every day in helping achieve the best interests of Indian children and families.”

The 5th Circuit did not give an indication of when it might issue a ruling. The losing party, or parties, would then be able to take the case to the Supreme Court, whose last ICWA matter was Adoptive Couple v. Baby Girl. It didn't turn out so well for tribal interests.

By a vote of 5 to 4, the justices 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 sounded alarm on the so-called "ICWA trump card" -- the very same issue the non-Indian plaintiffs in Brackeen have raised.

And while Baby Girl came out almost seven years ago, in June 2013, it apparently has stuck in the minds of the nation's jurists. The handful of members of the 5th Circuit who brought up blood quantum at Wednesday's hearing used the exact same percentage -- 3/256 -- from the high court's ruling, disregarding the fact that the Cherokee Nation does not employ blood quantum to determine citizenship.

"It bothers me from the standpoint that blood quantum does not define who an Indian is, at least not in Cherokee Nation," Chief Hoskin said after the hearing.

"I don't know another nation on this planet where we talk about blood quantum, and I don't think Indian tribes should be any different," Hoskin added.

The five justices who went against tribal interests in Baby Girl ruling remain on the court. In contrast, one of the members who defended the ICWA rights of the Cherokee Nation 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 of ICWA in his dissent. "There is no reason in law or policy to dilute that protection."

President Sharp of the Quinault Nation said "there's no way to tell" what might happen if ICWA goes to the Supreme Court again. Brackeen presents a different set of issues from the prior case, she noted, so it's hard to make a prediction.

"The rights that we are advocating were not given to us by anyone. They were not given to us by Congress, they were not given to us by any state," Sharp said of tribes and their inherent sovereignty.

Turtle Talk has posted briefs from the en banc proceeding in Brackeen v. Bernhardt.

5th Circuit Court of Appeals Documents
Brackeen v. Bernhardt (August 9, 2019)
Brackeen v. Bernhardt Partial Dissent (August 16, 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"

• "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 full document can be found on

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