The legal challenge to the Indian Child Welfare Act (ICWA), a 40-year-old law passed to protect Native American families from child welfare system intrusion, has its next court date set.
Oral arguments in the appeal of a federal district court decision to strike down most of ICWA is scheduled for the week of March 11 at the Fifth Circuit Court Appeals in New Orleans, according to counsel for one of the tribes involved in the case. This will be the first day of argument in court for federal agencies and Native American tribes attempting to overturn the ruling.
Meanwhile, amicus briefs have been filed in support of ICWA by several U.S. senators, a group of state attorneys general, and dozens of child welfare-related foundations and organizations.
“ICWA provides a valuable tool … to both further Indian children’s best interests and protect tribal sovereignty through partnerships with Indian tribes,” said the attorneys general brief, filed on behalf of 21 states.
The appeal stems from an early October decision by U.S. District Judge Reed O’Connor in Brackeen v. Zinke. The plaintiffs in the case include three states – Indiana, Louisiana and Texas – along with several non-Indian adoptive families. O’Connor ruled that ICWA was race-based, countering years of case law that had affirmed the law was rooted in sovereignty protections for Native Americans.
ICWA was passed in 1978 at a time when nearly a third of Indian children were removed from their parents and placed mostly with white families. But O’Connor said that, as a race-based law, ICWA lacked a present-day justification, and forced states to enforce federal standards.
Several tribes quickly appealed the ruling, and the federal agencies named in the lawsuit – the Department of Interior and the Department of Health and Human Services – eventually joined the appeal. In December, amid news that some states could begin phasing ICWA out, the Fifth Circuit issued a stay in the case.
An amicus brief was filed by seven members of Congress: Sens. Tom Udall (D-N.M.) and Lisa Murkowski (R-Alaska); and Reps. Don Bacon (R-Neb.), Karen Bass (D-Calif.), Tom Cole (R-Okla.), Betty McCollum (D-Minn.), and Don Young (R-Alaska).
“The district court wrongly concluded that the balance ICWA struck between state-court jurisdiction and the establishment of federal standards violated the Tenth Amendment because it involved the application of federal standards to state-law causes of action,” the brief said. “ICWA is … not unique in its application of federal standards and procedural protections to state-law causes of action.”
A brief from 31 child welfare organizations – including Casey Family Programs, Annie E. Casey Foundation and the Child Welfare League of America – argued that ICWA’s provisions represent the best practices of child welfare.
ICWA “both embodies and has served as a model for the child welfare policies that are best practices generally,” the brief said. “ICWA’s principles are critical to … safeguarding the welfare of children and families.”