The waiting game is on.
The latest court hearing in the battle for the health of the Indian Child Welfare Act (ICWA) took place Jan. 22 at the U.S. Court of Appeals for the Fifth Circuit in New Orleans.
Sixteen judges gathered for the rare en banc hearing to determine if an August 2019 decision by a three-judge panel in the same court would be upheld.
The August panel had ruled to nullify a previous decision in Oct. 2018 by District Court Judge Reed O’Connor of the Northern District of Texas (first Brackeen v. Zinke now Brackeen v. Bernhardt) that ICWA was unconstitutional because it was “race based and violates the equal protection clause of the U.S. Constitution.”
The ruling basically threw out all of the claims the opposition had been making, Sarah L. Kastelic (Alutiiq), the executive director of the National Indian Child Welfare Association (NICWA) since 2015 said.
But hearing by the 16-judge panel was granted, and nervousness began anew.
Kastelic said Feb. 25 that her best guess is the judges will issue a ruling this summer.
“From the line of questioning, some judges were pro and some were anti-ICWA,” Kastelic said. “At the end of the day what we walked away with is a sense that this court fully appreciates the gravity of the decision they were asked to make.”
The judge’s ruling could go a lot of directions, Kastelic said. It could rule that ICWA is, indeed, unconstitutional because it’s “race based.” Or it could issue any number of dissents on different grounds. Or the majority of judges could rule that it’s constitutional and not race based.
The point, Kastelic said, is it will likely be a complicated opinion with “many different parts.”
“There are lots of nuances,” she said.
Meanwhile, Kastelic said if ICWA’s supporters come out on the losing end of an opinion, she believes it’s almost guaranteed that the U.S. Supreme Court would review the case. She said it would be highly unusual for a federal court to strike down such a well-established federal law.
“My sense is that people are, of course, somewhat nervous, but are fully aware that this is one step in the process,” Kastelic said. “No matter how this ends, the opposition will keep bringing other cases. People realize the magnitude and seriousness of it.”
Since ICWA’s passage in 1978, there have always been challenges and opponents.
Kastelic and NICWA are making the final preparations for the group’s 38th annual “Protecting Our Children” conference March 29 to April 1 in Denver. Kastelic expects about 1,600 people to attend. The Seminole Tribe of Florida is a sponsor.
The “Protect ICWA Campaign” consists of NICWA, the Native American Rights Fund, National Congress of American Indians and the Association on American Indian Affairs.
Timeline of recent ICWA challenges
• 2017: Texas couple Chad and Jennifer Brackeen sue the U.S. Interior Department after their petition to adopt a Native American toddler they had fostered for more than a year was challenged in state court.
• Oct. 2018: U.S. District Judge Reed O’Connor (Brackeen vs. Bernhardt) rules ICWA is unconstitutional; appeals are immediately filed.
• Dec. 2018: U.S. Fifth Circuit Court of Appeals grants stay on O’Connor ruling.
• March 2019: Three-judge panel of the Fifth Circuit hears oral arguments in the case.
• Aug. 2019: Panel rules 2-to-1 to overturn O’Connor’s ruling.
• Nov. 2019: En banc rehearing granted with Fifth Circuit.
• Jan. 22, 2020: En banc hearing takes place in New Orleans. Judges yet to render opinion.
What is ICWA?
ICWA requires states to prioritize placing Native children in foster or adoptive homes with Native families over non-Native families.
Why is it necessary?
The U.S. Congress passed ICWA in 1978 to try and remedy a period in American history when the government took tens of thousands of Native children (25% to 35%) away from their families on reservations. They were sometimes taken by force and put in boarding schools or to be assimilated with white families. Children often suffered physical, sexual and cultural abuse. Some never returned home.