Indian Child Welfare Act Under Fire: Federal Judge Strikes Down 40-Year-Old Law, Appeals Could Lead to Supreme Court

The Indian Child Welfare Act, passed in 1978 to prevent the removal of Native American children from their families and tribes, has been deemed unconstitutional by a federal judge.

A federal judge has declared unconstitutional a 40-year-old law that was passed to protect against the separation of American Indian children from their families and tribes by state-run child welfare systems.

In Brackeen v. Zinke, U.S. District Judge Reed O’Connor ruled in favor of three states – Texas, Indiana and Louisiana – and several foster and adoptive couples, declaring that the Indian Child Welfare Act (ICWA) was a race-based law lacking a present-day articulation of its need. Citing a recent Supreme Court ruling on sports gambling, O’Connor also ruled that ICWA unfairly expected states and tribes to enforce federal standards.

Though ICWA has been contested in court myriad times since its passage in 1978, this is the first time that a federal judge has put the future of the law in jeopardy.

No federal court “has determined any provision of ICWA to be unconstitutional, even though these arguments have been raised in various courts, including the Supreme Court,” said Chrissi Ross Nimmo, deputy attorney general of Cherokee Nation, in an email to The Chronicle of Social Change.

Critics of ICWA praised O’Connor, saying it rolls back a law that puts Native American children at risk.

The decision “is a great victory for the rights of Native American children throughout the United States, who deserve the same strong protections against abuse and neglect as their peers of other races,” said Timothy Sandefur, vice president for litigation at the Goldwater Institute, which filed a friend of the court brief in the case. “ICWA denies them that protection and prioritizes their race over all other considerations. That’s immoral, and today’s decision rightly holds that it’s also unconstitutional.”

The Cherokee Nation and three other tribal defendants will seek an immediate stay of the ruling and appeal O’Connor’s decision to the Fifth Circuit, Nimmo said. The other defendants in the case are leaders of two federal agencies: the Department of Health and Human Services (HHS), and the Department of the Interior.

“We remain optimistic that the federal government will continue to defend the constitutionality of ICWA as they have done thus far,” Nimmo said.

“The Department of the Interior strongly opposes any diminishment of ICWA’s protections for Indian children, families, and tribes,” said Tara Mac Lean Sweeney, assistant secretary for Indian affairs at the agency. “The Department will continue to work with tribes and states to implement ICWA moving forward.”

HHS has not issued any public statement yet about the decision.

If the Fifth Circuit upholds O’Connor’s decision, the fate of ICWA could wind up in the hands of the U.S. Supreme Court.

Protecting Tribes

ICWA was passed in 1978 at a time when a staggering number of Indian children were taken from reservations and placed with white families, often far away from their tribes and families-of-origin. In the 1960s and 70s, the Association on American Indian Affairs found that 25 to 35 percent of all Native children were being removed from their families.

The law mandates that, when a child is removed from home for abuse or neglect, state and tribal child welfare agencies take clear steps to keep children connected to their families and tribes. Placement with non-Indian foster families should thus be a placement of last resort in the foster care continuum. Adoptions by non-Indian families can be challenged for up to two years by tribes if they believe the parent’s consent for it was obtained by fraud or under duress.

Chrissi Nimmo, Assistant Attorney General for Cherokee Nation. Photo: Cherokee Nation Office of the Attorney General

Opponents of ICWA have long argued that the law endangers Indian children. Attorneys with the conservative Goldwater Institute have challenged ICWA nearly a dozen times on grounds that the law “discriminates” against Native children, placing the tribe’s best interests above those of the child.

Nimmo dismissed those claims as mostly emanating from think tanks that see rolling back ICWA as a “first step in the erosion of tribal sovereignty.”

“If they are allowed to take our children, then they are allowed to steal the future of our tribes and undermine our very status as the indigenous people to this country,” Nimmo said.

Some youth advocacy groups have filed briefs critical of ICWA’s reach – though not opposed in principle to the law – in previous court challenges, including the Center for Adoption Policy, Advokids and the National Council for Adoption.

Three Families, Three States

This current case centers on three non-Indian families seeking to adopt children of Native American ancestry. Two of the children have parents or grandparents who are enrolled members of tribes; one child’s biological father is an unregistered descendant of a tribe.

The Brackeen family, of Texas, is seeking to adopt a baby from Arizona identified in the case as A.L.M. The child’s biological parents – the mom a member of the Navajo Nation and the father a member of the Cherokee Nation – both support the Brackeens’ efforts to adopt.

The adoption process is moving forward, but under ICWA, either tribe could challenge it for up to two years to argue for a placement with a relative or another Native American family.

The states involved in the case as plaintiffs claim that the requirements of ICWA are a burden on their ability to recruit foster and adoptive parents, and find suitable placements for Indian children. The Texas Department of Family Preservation Services asserts that, because of the process dictated by ICWA, the Brackeens said they were unlikely to seek adoption of another Native American child.

Race and States

U.S. District Judge Reed O’Connor, writing the decision for the District Court for the Northern District of Texas, found ICWA to be a race-based law that requires “strict scrutiny” aimed at avoiding unnecessarily broad protections. This assertion contradicts previous court findings that ICWA is a political protection that requires only a “rational basis.”

In his opinion, O’Connor, who was appointed in 2007 by George W. Bush, criticized government and tribal lawyers for failing to offer a defense of the law’s importance.

“The Federal Defendants have not offered a compelling governmental interest that the ICWA’s racial classification serves, or argued that the classification is narrowly tailored to that end,” O’Connor wrote. “Because the government did not prove — or attempt to prove — why the ICWA survives strict scrutiny, it has not carried its burden to defend the ICWA.”

Nimmo said that “decades of federal case law has held that statutes that give unique benefits or burdens to Indian people and Indian tribes are not race-based,” and that “there was no reason to justify why ICWA withstands ‘strict scrutiny’ because the law is … not subject to such review.”

It will surely be a point of debate in the Fifth Circuit appeal. Nimmo said that even if the law were to be considered race-based, it would stand up to strict scrutiny.

“Sections 1901 and 1902 [of ICWA] list Congressional findings on the need for ICWA and the federal government’s role as trustee for Indian tribes and their people,” Nimmo said.

O’Connor also ruled that ICWA amounted to an unconstitutional shift of costs and enforcement to state governments. He cited the recent Murphy v. NCAA case, which this year ended the federal limitations on states permitting sports gambling. The gambling ban violated the anti-commandeering doctrine because it “regulated states rather than individuals.”

ICWA, O’Connor judged, violates the same principles. Under the law, he wrote, “Congress shifts all responsibility to the states, yet ‘unequivocally dictates’ what they must do.”

Destined for High Court?

Should this case reach the high court, soon operating for the first time with a full slate of nine justices, it will be the second high-profile ICWA case in five years. The other, a 2013 case called Adoptive Couple v. Baby Girl, involved a Native American father fighting the adoption of his daughter by a non-Indian couple in South Carolina.

The court did not strike down ICWA or any provision of it in that case, but did make clear that its protections were limited.

“The Indian Child Welfare Act (ICWA) was enacted to help preserve the cultural identity and heritage of Indian tribes, but under the State Supreme Court’s reading, the Act would put certain vulnerable children at a great disadvantage solely because an ancestor — even a remote one — was an Indian,” said Samuel Alito, writing for the majority.

Native Americans in Foster Care

There were 17,896 American Indian or Alaska Native youth in foster care in 2012, according to federal data obtained by The Chronicle. That number had risen to 20 percent, to 21,576, by 2016.

In most states, these youth make up a tiny fraction of the overall foster care population. But they make up a third of all foster youth in six states: Minnesota, Oklahoma, Montana, North Dakota, Alaska and South Dakota.

Federal data also shows an increase in foster homes that identify as American Indian or Alaska Native households. There were 3,793 such foster homes in 2016, about 1,000 more than there were in 2012.

Sixty-four percent of those homes are in the six states with the highest percentage of Native foster youth, but it is hardly an even split. For example, Oklahoma has more than 1,000 Indian foster homes by itself. In South Dakota, where 60 percent of foster youth are American Indian, federal data shows only 16 American Indian foster homes.

A recent award-winning investigation into South Dakota’s child welfare system by NPR found that the number of Indian youth in foster care was wildly disproportionate to their proportion of society, and that 90 percent of those youth were not kept with their families or tribes.

Christie Renick contributed to this article.

Note: This article was updated on Monday, October 8 to further clarify the circumstances under which a tribe could appeal an adoption.

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John Kelly
About John Kelly 961 Articles
John Kelly is editor-in-chief of The Chronicle of Social Change.

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