Indian Child Welfare Act remains law for now

by Dec 17, 2018Front Page, NEWS ka-no-he-da





On Oct. 5, a federal district court in Texas ruled that the Indian Child Welfare Act (ICWA) was unconstitutional because it was a race-based preference law. The court also claimed it violated federal law by placing the authority of enforcement on state and tribal governments. On Dec. 3, the Fifth Circuit Court of Appeals granted a stay, leaving the law in place while the case of Brackeen v. Zinke goes through the appeals process.

Hannah Smith, an attorney with the tribe’s Attorney General’s office who works with ICWA cases, said, “The motion granting a stay in the Brackeen case is a great relief because two of the three states affected by the federal district court’s decision were taking active steps to dismantle how the Indian Child Welfare Act was administered in those states.”

Smith said two states had given directions to child protection agencies to ignore ICWA, which would’ve included notifying tribes when an Indian child had been taken into state custody, which would’ve given the tribes involved a chance to intervene and reunite the child with his or her family. “It is an unsettling time for Indian tribes in America.  I’m grateful that the Fifth Circuit granted the stay prohibiting those states from refusing to apply the federal law’s protections for Indian tribes.  I’m also hopeful that the Fifth Circuit Court of Appeals will uphold our country’s legal precedent confirming the political status, not racial status, that Indian tribes hold within American law.  While this isn’t the only legal issue raised in the case, it has the potential for being the most damaging.”

Dan Lewerenz, a staff attorney with the Native American Rights Fund’s (NARF) Washington office, said the stay means, “The Texas court decision has been put on hold until the Fifth Circuit can decide the case.” In an effort to prevent unrest and having to enact an order only to possibly reverse it later, courts issue stays, Lewerenz said. “The district court did not stay its decision.”

The law placed cases of Native American child custody under the jurisdiction of tribes, and its intent was to protect the integrity of Native American families and culture. The law gave preference to tribes and the children’s families when it came to placement of native children.

The act’s history is rooted in the boarding schools and policies of forced assimilation with the intentions to remove native culture from Native American children. Ultimately the practice intended to wipe it out of existence. Children were forcibly removed from their parents to be raised and educated in environments where their languages and traditions were prohibited, where harsh punishments resulted for violations. It tore families apart, caused a decline in the use of native languages and a decline in the practice of native traditions. It also caused a lifetime of trauma and psychological damage for parents and their children. The practice ended in the 1960s.

When the boarding schools closed, individuals carried on the practice through adopting and fostering native children.

After the district court ruling, Principal Chief Richard Sneed introduced a resolution to Tribal Council to support and defend the law. Sneed said the law is one “that protects tribes and Indian people from the devastating effects of what had been decades of unchecked state and private agency removal of more than 30 percent of all native children from their homes and their tribal lands.” Sneed said if the district court opinion stands, it will have a devastating effect on the sovereign relationship with the federal government. “The constitutional threats to the Indian Child Welfare Act also involved some of the same legal principles that protect inherent tribal sovereignty within the American legal framework.”

Tribes have maintained that the issue is not one of race, but one of sovereignty, one that focuses on the status of tribes as political entities. Having jurisdiction over custody issues of native children is part of that. NARF challenges the argument that the law was a race-based preference law. “We think the district court’s decision was wrong about that.”

Lewerenz said that all of the wording in the law relates to a government-to-government relationship. For example, the law defines “Indian children” as being tribal members and those who are eligible for membership. The eligibility definition was where the district court made one of its determinations. Lewerenz said that gives parents of native children time to enroll them. The district court also took issue with preferences, which, in order, place native children with family, other tribal members and other native families. He said that tribes have government-to-government relationships with the federal government on two fronts. One is each tribe individually has that relationship. The other relationship is tribes at large.

Lewerenz said the Fifth Circuit has tentatively scheduled the week of March 11 to hear the case.