Arizona attorneys attempted to leverage a recent Texas ruling on the Indian Child Welfare Act (ICWA) to persuade a federal court to re-examine its decision not to hear a related case, but that court declined to do so this week.
The United States Court of Appeals for the Ninth Circuit had ruled in August that a lawsuit in Arizona challenging ICWA was moot, dismissing the case without an opinion on the plaintiffs’ assertions that the law is racially biased and illegal. This week’s decision upheld that earlier ruling.
In the Texas case, Brackeen v. Zinke, U.S. District Judge Reed O’Connor interpreted ICWA to be racially based and to require states to enforce federal standards, both of which O’Connor says defy the U.S. Constitution.
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 their children, just as states do with non-Native children, when biological parents cannot.
Meanwhile, plaintiffs Texas, Louisiana and Indiana, along with foster families, are urging O’Connor to reject a stay request from tribes that would uphold ICWA despite the judge’s Oct. 4 ruling.
The plaintiffs argued that the stay bid was “not remotely the ordinary motion for a stay pending appeal that seeks to preserve the status quo.” Further, they said, “the state child welfare and custody proceedings that ICWA and the final rule used to govern cannot be paused for months or years while the tribes appeal this court’s judgment.”
One of the defendants in Brackeen v. Zinke, the federal Department of Health and Human Services which oversees the Children’s Bureau, has not yet issued a statement on the decision and whether it intends to continue defending the law.
Children’s Bureau Commissioner Jerry Milner told The Chronicle of Social Change: “We’re still doing our own analysis and trying to figure that [ICWA enforcement plan] out. That’s very recent so we haven’t made any decisions on this at this point about what our next step will be.”
The other federal agency involved, the Department of the Interior, has stated it will defend ICWA.
Seven states, including California, Alaska, Montana, New Mexico, Oregon, Utah and Washington, filed an amicus brief in the Texas case in support of ICWA. But without a stay in place, it is unclear whether states will continue to abide by ICWA, especially those states named as plaintiffs in the case.
As evidenced by a letter submitted to the court, attorneys have begun using O’Connor’s ruling to push Texas’ Department of Family Protective Services (DFPS) to disregard ICWA: “Accordingly, Texas and its agency, DFPS, is bound by that judgment and its declaration of ICWA’s unconstitutionality. DFPS, therefore, cannot apply ICWA or Interior’s 2016 regulations with respect to the placement of [redacted]’s sister; she must be placed in accordance with Texas law, without regard to ICWA or the 2016 regulations.”