Case could be headed to Supreme Court

Advocates of the Indian Child Welfare Act have been on edge for almost a year. But an August 9 court decision has allowed them rest a little easier – at least for now.

The U.S. Fifth Circuit Court of Appeals reaffirmed the constitutionality of the ICWA, reversing an October 2018 federal court decision of the Northern District of Texas in Brackeen vs. Bernhard (later Brackeen vs. Zinke).

The Brackeen ruling had stated the ICWA was unconstitutional because decisions were “impermissibly based on race,” among other objections.

However, the Fifth Circuit decision said the ICWA is, indeed, constitutional “because it is based on a political classification that is rationally related to the fulfillment of Congress’ unique obligation toward Indians.”

Several ICWA stakeholders lauded the Fifth Circuit’s ruling.

“The Court’s ruling affirms the federal government’s unique political relationship with Tribes. We hope that this groundbreaking law will continue to help keep Indian families whole,” National Indian Health Board chairperson Victoria Kitcheyan said in a statement.

Earlier this year, the NIHB, along with 57 other Tribal organizations and 325 Tribal nations, signed on to an amicus brief supporting ICWA.

The Seminole Tribe and Miccosukee Tribe were both signees on the January brief.

“It is a resounding victory for the law and those who fought to protect it,” Sarah Kastelic, executive director of the National Indian Child Welfare Association, said in a statement.

“ICWA is vital for protecting the wellbeing of Native children. [The] decision reaffirms tribal nations’ inherent sovereign authority to make decisions about Native children and families wherever those children and families may live.”

Background

The ICWA of 1978 was put in place to prevent the separation of Native children from their parents and extended families by state child welfare and private adoption agencies.

But recent years have seen an increased number of challenges to various provisions of ICWA. Supporters are hopeful such challenges will end.

“[The Fifth Circuit] decision clearly defines the breadth of the relationship between the federal government and tribal nations [and] sends a sharp message as to the strength of tribal sovereignty, which will safeguard Indian Country from such misguided litigation in the future,” Kevin Allis, CEO of the National Congress of American Indians, said in a statement.

Timeline

A couple months after the ruling by U.S. District Judge Reed O’Connor of the Northern District of Texas, a stay was granted by the Fifth Circuit.

At that time, 14 amicus briefs were filed in support of the various positions of the parties, including a brief by the state of Ohio supporting the plaintiffs, and a brief filed by 21 other states supporting the defendants.

Brackeen vs. Zinke was brought by a Texas couple who sought to adopt a Native American baby – one whose biological parents were from the Cherokee and Navajo tribes.

The couple fostered the baby from the time he was 10 months old to age two.

The couple initially sought to adopt the male child with the support of the baby’s biological parents.

But a family court in Texas prevented the plans, blocking the adoption on the grounds of the ICWA.

The couple sued and were joined in the suit by the states of Texas, Louisiana and Indiana.

The Cherokee Nation and many others intervened as defendants.

While the ICWA does not bar non-Native families from adopting or fostering Native American children outright, in order for a non-Native family to succeed, they have to show “good cause” that the child can’t or shouldn’t be adopted by other Native Americans – a main hurdle for the parents in this case, experts have said.

It is anticipated that the plaintiffs will appeal the Fifth Circuit’s decision to the Supreme Court.

Meanwhile, all provisions of ICWA are fully enforceable as are similar standards enacted by various state legislatures, such as the Michigan Indian Family Preservation Act.

For more

The Protect ICWA Campaign was established by NICWA, NCAI, the Association on American Indian Affairs and the Native American Rights Fund.

The campaign works to “serve and support Native children, youth, and families through upholding the [ICWA and to] inform policy, legal, and communications strategies.”

More information is at nicwa.org. The full Fifth Circuit’s decision can be found at narf.org.