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ICWA challenge to be reheard by Fifth Circuit

Tensions are high once again as the fate of the Indian Child Welfare Act is back up for review in a rehearing.

The 1978 law has been in and out of legal limbo for more than a year.

The latest action came Nov. 7 when the U.S. Court of Appeals for the Fifth Circuit granted a rehearing “en banc” in the Brackeen vs. Bernhardt case.

An en banc session takes place before all the judges of a court rather than by a panel of selected judges. It is often used for complex cases or those considered to be of greater importance.

Many in Indian Country had been encouraged in August when two members of a three-judge panel of the Fifth Circuit upheld ICWA as Constitutional, finding it was not a race-based statute that would violate the Equal Protection Clause.

The August decision affected non-Native American families in several states who had adopted or sought to adopt Native American children.

Opponents of ICWA say it’s an unconstitutional race-based intrusion on states’ powers to govern adoptions.

Now the New Orleans-based court said a majority of its active judges have voted to rehear the case.

The assertion that ICWA is race-based stems from the challenge more than a year ago by Chad and Jennifer Brackeen, a Texas couple who fostered a baby who was eligible for membership in both the Navajo and Cherokee tribes.

Court briefs state the boy’s parents had voluntarily given up their parental rights and the Brackeens then petitioned to adopt him – as well as his younger half-sister.

Texas, Indiana and Louisiana would later join the lawsuit, siding with the Brackeens.

In this latest development, the federal government filed a brief in response to the en banc rehearing, arguing that the plaintiffs “miss the fundamental point . . . [namely that] tribes have authority to set their own membership criteria, which may be based in part on biology or descent[.]”

Once again, the federal government and stakeholders in Indian Country will have to defend the more than four decades old law.

One influential organization in the fight is the Protect ICWA Campaign, formed by the National Indian Child Welfare Association, National Congress of American Indians, Association on American Indian Affairs and the Native American Rights Fund.

The group works to inform policy, legal, and communications strategies with the mission to uphold and protect ICWA.

There is further support for ICWA in this case from at least 21 states, 325 tribal nations, 57 Native organizations, 31 child welfare organizations, American Indian and constitutional law scholars, and members of Congress.

ICWA has long been recognized as a best practice in child welfare.

“For centuries, the United States Congress, Executive Branch, and Supreme Court have affirmed the unique political status of tribal nations and Native people,” the Protect ICWA Campaign said in a statement after the Nov. 7 announcement.

“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 group said.

“[The Nov. 7] order does not necessarily mean that the Fifth Circuit will find ICWA unconstitutional, but does vacate its earlier decision and add another round of briefing to the case,” added the National Council of Urban Indian Health in a statement.

A firm rehearing date had not been set as of press time, but is expected to occur sometime in January 2020.

Damon Scott
Damon is a multimedia journalist for the Seminole Tribune. He has previously been an editor and reporter for digital and print media in Florida and his home state of New Mexico. Send him an email at