Those who have monitored ongoing challenges to the Indian Child Welfare Act say the past 15 months have been more alarming than usual.

A Jan. 22 hearing by the U.S. Court of Appeals for the Fifth Circuit in New Orleans didn’t do much to quell what is seen as the underlying issue: a continued and, of late, ramped up assault on inherent tribal sovereignty.

It’s not known when the court will issue a decision based on the latest hearing. None had been issued by press time.

Sarah L. Kastelic (Alutiiq) is in the thick of the fight. She is the executive director of the National Indian Child Welfare Association (NICWA) – a position she’s held since 2015.

The group is hosting its 38th annual “Protecting Our Children” conference March 29 to April 1 in Denver. Kastelic is expecting 1,600 to attend. The Seminole Tribe of Florida is a sponsor.

“The whole organization was founded on the heels on ICWA’s passage,” Kastelic said. “Tribal leaders were excited their authority was being recognized.”

But that authority is in increasing jeopardy.

Kastelic’s organization works on a variety of issues to stabilize ICWA’s standing. She and her staff train social workers and develop curriculum.

NICWA’s clients are tribal members and tribal affairs workers, administrators and other leaders and those who work in related areas like substance abuse and health.

The “Protect ICWA Campaign” consists of NICWA, the Native American Rights Fund, National Congress of American Indians and the Association on American Indian Affairs.

All four work in tandem to engage Indian Country and its allies on the threat to the almost 41-year-old law and direct them toward actions they can take.

After months of uncertainty, it looked as if an immediate threat to the law would ease a bit after an August 2019 decision by a three-judge panel on the aforementioned Fifth Circuit in New Orleans.

That summer ruling nullified 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 way he made that decision was kind of sketchy,” Kastelic said. “He didn’t do the legal analysis we would expect.”

A hearing the following March in New Orleans appealing O’Connor’s decision naturally made Kastelic and others nervous. Would it be upheld or overturned?

“But we had some good signals. The judges asked really smart questions; then we got a wonderful decision that basically threw out all of the claims the opposition made,” Kastelic said.

However, immediately after it was overturned the Brakeens and several other families, including the attorneys general of Texas, Indiana and Louisiana, requested an en banc hearing with the Fifth Circuit.

The request for an en banc hearing was an unusual one, Kastelic said, if for no other reason than it’s rare to get one granted – usually about a 3 percent chance.

It’s simply tough logistically, because now instead of three judges ruling on the issue it must go before the entire 17-judge panel of the Fifth Circuit.

Kastelic did her best to remain optimistic.

“We could have looked at it as a blow. I guess the way I looked at it is the Fifth Circuit, which doesn’t have much experience with Indian Country, recognized the responsibility it had to rule on it,” she said. “They were saying: we’re willing to expend the energy and resources to rule on this and the far-reaching impacts of the decision.”

But regardless of the Jan. 22 result, Kastelic doesn’t see the fight ending any time soon, if ever.

She estimates there are more than a dozen other cases in different states and federal courts challenging the constitutionality of ICWA.

Kastelic thinks the next stop is likely the U.S. Supreme Court.

‘ICWA is the first domino’

Since ICWA’s passage in 1978, there have always been challenges and opponents.

Some opponents have come in the form of private adoption agencies and their attorneys. The reason is that ICWA makes fewer children available for adoptions.

Kastelic describes it as a supply and demand issue. International adoptions have decreased and it’s put more pressure on the domestic market.

At any given time, Kastelic said, the domestic market has 2-million families who are looking to adopt. But there are only about 50,000 children who are considered healthy and available.

“Native [American] children are highly prized in the adoption market,” Kastelic said.

Author Suzette Brewer (Cherokee), and others, have said that Native American children are also in demand because they are seen as being both “closest to white” than other ethnic groups and at the same time “exotic.”

But Kastelic suspects the larger issues to the ICWA challenges have less to do with caring about the welfare of Native American children and more to do with a long-term goal of undermining tribal sovereignty.

One example is the efforts of the Goldwater Institute – a conservative public policy think tank located in Phoenix that has played an active role in trying to overturn ICWA.

The Goldwater Institute operates an “Equal Protection for Indian Children” project. The project is described as being “devoted to ensuring that the individual rights of vulnerable kids take precedence over racial considerations.”

“They have no history of caring about Indian issues or child welfare issues,” Kastelic said. “It isn’t really about Indian kids and families; you’re trying to take down hundreds of years of federal Indian precedent for tribal sovereignty, natural resources, economic development. It’s all about undermining tribal sovereignty. ICWA is the first domino.”

Attempts to reach representatives from the Goldwater Institute by the Seminole Tribune were not successful.

Further, what distinguishes the Brackeen case from past challenges is that it was a state suing the federal government on ICWA’s constitutionality. Kastelic said that is what makes it unprecedented and presents a “whole other level of opposition.”

It doesn’t prove, however, that a majority of states are turning against the law.

While Indiana and Louisiana joined Texas in the Brackeen lawsuit – 26 other states and the District of Columbia so far have said ICWA is the “gold standard” and best practice for the adoption of Native American children.

“States are overwhelmingly in support of ICWA,” Kastelic said. “You have three rogue attorney generals who have the same agenda as the Goldwater Institute – going after tribal protections.”

Further, she said the state of Texas, ironically, is embroiled in several class action lawsuits over claims it runs a subpar child welfare system.

“They are fighting all these changes they are supposed to be making to the state systems,” Kastelic said.

Fight continues

Moving forward, Kastelic said NICWA will continue to keep tribal leaders updated on the latest developments.

She continues to work with state leaders to promote a pro-ICWA position, too.

There’s also been greater engagement with local and national media.

That was a lesson learned from 2013, Kastelic said, over media coverage of a U.S. Supreme Court-reviewed ICWA case.

The high court ruled 5-to-4 that Dusten Brown (Cherokee) did not have a right to his child because he had signed it away – though he claimed he did so under misleading circumstances.

The justices granted custody to a white couple from South Carolina who had adopted the child while Brown was serving in the U.S. Army.

“[Media coverage] was so anti-ICWA. All the terrible things said about Native families – that they don’t care about their kids, they are alcoholic and poor. We knew this time around we had to approach the media differently,” Kastelic said.

NICWA has written more op-eds and pitched more stories since then.

“We are really trying to push out messages about Indian County and Indian families and why [ICWA is] still necessary and why it’s the gold standard,” Kastelic said.

More information is at nicwa.org.

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 results in [?].

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.