A federal judge in Texas this week denied a stay of his previous ruling on the Indian Child Welfare Act in the Brackeen vs. Zinke lawsuit, saying the defendants failed to demonstrate that harm or injury may come to children, families and tribes as a result of the ruling.
U.S. District Court Judge Reed O’Connor stated on Oct. 4 that the 40-year-old federal law is “racially based” and places on states the burden of enforcing federal mandates, both of which O’Connor said are unconstitutional.
The Indian Child Welfare Act (ICWA) was passed in 1978 to curb the involuntary removal of Native children from their families and tribes. The law defined the political relationship between tribes and states and designated that tribes can and must act as parents for Native children, just as states do with non-Native children, when biological parents cannot.
A stay could have delayed the implementation of the Oct. 4 ruling and was filed by the Cherokee Nation and four other tribal leadership groups. The stay request was based in part on the irreparable harm that could come to families, children and tribes if states elect to disregard ICWA while the case moves through the justice system.
“We are disappointed that a stay was denied. Because this is the first time in 40 years that ICWA has been declared unconstitutional by a federal court, this decision has the potential to create confusion for state court systems and tribes. It also removes important protections for Indian children in the jurisdiction affected,” said Chrissi Ross Nimmo, deputy attorney general for Cherokee Nation, in an email to The Chronicle of Social Change.
Nimmo said Cherokee Nation still intends to appeal the decision and is weighing its options.
Tribal leaders and ICWA advocates are concerned that the states named in the case – Texas, Louisiana and Indiana – could begin ignoring ICWA’s mandates immediately. An October 10 letter from the plaintiffs’ attorneys to the Texas Department of Family Protective Services pressured the department to ignore ICWA and proceed with the adoption of a sibling of one of the children involved in Brackeen vs. Zinke.
The two federal defendants in the case are the Department of Health and Human Services and the Department of the Interior.
“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.”