State Actions on Indian Child Welfare Act Since Federal Judge Struck It Down

Native American mom holding daughter in their living room

As we reported last week, several tribes have appealed the recent ruling striking down the Indian Child Welfare Act (ICWA), and are asking the Fifth Circuit Court of Appeals to issue a stay on the lower court’s ruling until the appeal is decided on. The argument for a stay was in part based on the notion that states could begin to ignore ICWA in the short term as the case continued.

Youth Services Insider looked into how the three states that are actually party to the lawsuit – Texas, Louisiana and Indiana – are approaching ICWA in the wake of U.S. District Judge Reed O’Connor’s decision in Brackeen v Zinke. We found one state being proactive against ICWA, one state holding back, and one state doing the email equivalent of the shrugging shoulders emoji.

Texas

Shortly after Judge O’Connor’s decision, the word came down from the Texas Attorney General’s office to the state’s child welfare agency: stop factoring ICWA protections into casework and court process. A letter from First Assistant Attorney General Jeffrey Mateer gave the following instructions to the Department of Family and Protective Services:

…We recommend that DFPS begin preparing to comply with the Court’s ruling. DFPS should notify caseworkers, in-house attorneys, District Attorneys, and state courts that ICWA and the Final Rule are no longer good law and should not be applied to any pending or future child custody proceeding in Texas.

Now DFPS should handle these ICWA cases as it would any child welfare or custody proceeding according to Texas law. For pending cases involving Indian children, caseworkers and attorneys may want to discuss those particular situations with DFPS and determine how to proceed.

YSI asked DPFS spokesman Patrick Crimmins if the agency had begun to shift policy away from ICWA?

“No specifics yet, but we are working with the Attorney General’s office to ensure our policies comport with the law,” he said, in an email. “We’ve informed all of our attorneys, as well as all regional directors for CPS, and are working on written guidance for all CPS employees and any other DFPS employee who needs the information.”

Judges are being alerted to the ruling by the Texas Children’s Commission, Crimmins said.

Louisiana

The Pelican State, which is within the Fifth Circuit with Texas, is content to wait until the ICWA case is resolved to act, whether that occurs at the circuit court level or the U.S. Supreme Court.

“We continue to follow the law under ICWA,” said Heidi Rogers Kinchen, spokesperson for the Louisiana Department of Children & Family Services. “Policy changes, if any, will be based on governing laws and/or binding jurisprudence to ensure that the health and safety of children are protected.”

Indiana

It is somewhat confusing that Indiana is a party to this lawsuit. It is outside of the Fifth Circuit, and none of the families or children involved in the lawsuit are from there. The initial response YSI got from the state does not suggest what one would call a lust to act on the ruling; or really, any awareness of it.

The Department of Children’s Services (DCS), asked what, if anything, would change based on the ICWA ruling, waited a couple days and then informed YSI that the attorney general’s office would have to answer that.

How about it, attorney general’s office?

“These questions would best be addressed [sic] by DCS,” said an email from Public Information Officer Melissa Gustafson.”

We will update this if and when Indiana decides to enlighten us on its plans.

UPDATE: Looks like Indiana will be following Texas in moving away from ICWA for the time being. Response from Indiana, courtesy of spokesperson Noelle Russell:

The Indiana Department of Child Services is currently reviewing what policies and procedures may need to be amended in light of this ruling. At present time, Indiana will handle ICWA cases as it would any other child welfare or custody proceeding according to Indiana law.

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John Kelly
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John Kelly is editor-in-chief of The Chronicle of Social Change.