Indian Child Welfare Act Considered by En Banc Fifth Circuit

NEW ORLEANS (CN) – A full 16-judge panel at the Fifth Circuit heard arguments Wednesday in a case that challenges a 1978 law that gives preference to Native American families in foster care and adoption proceedings involving children who are identified as belonging to a Native American tribe.

Compared with a hearing on the same case last March in the same court before a three-judge panel, Wednesday’s hearing focused on the constitutionality of the Indian Child Welfare Act, known as ICWA.

Plaintiffs in this case, opponents of the act, argue that emotional bonds are overlooked by the federal government’s insistence Native American children taken from their families must be placed with members of their own tribes.

Under the act, state and federal agencies must first attempt to place Native American children taken from their homes with an extended family member or community member in their tribe.

In 2017, individual plaintiffs Chad and Jennifer Brackeen, a couple from Texas, along with the state attorneys general in Texas, Louisiana and Indiana, sued the Interior Department and its now former Secretary Ryan Zinke to challenge ICWA. The Morongo, Quinault, Oneida and Cherokee tribes intervened as defendants in the case.

Tribal officials say a ruling in favor of the act’s opponents could contribute to loss of tribal cultures.

A federal judge in Texas in 2018 ruled the law is unconstitutional, saying it’s based on race and violates the equal protection clause.

Lawyers representing the tribes, however, said tribal affiliation is not about race but community membership and politics.

More than 20 states and hundreds of tribes, advocacy groups and the federal agency that oversees Indian Affairs joined the appeal, seeking to overturn the lower court’s ruling.

Eric Grant, an attorney with the Department of Justice, said in previous hearings that the Child Welfare Act relates to members of 573 recognized tribal entities.

In August, the three-judge panel that heard arguments last March upheld the act in a 2-1 ruling.

In Wednesday’s en banc hearing, Grant said opponents of the act only have standing to challenge the Secretary of State for its record keeping related to the act. All other challenges, Grant said, lack standing.

Grant further said tribal affiliation is not based on a racial basis but a political basis.

Non-Indian families on the other side of the argument, including Minnesota plaintiffs Jason and Danielle Clifford, say their family has been “literally torn apart” after they were blocked from adopting a Native American girl who lived with them after several different foster care placements.

They and their attorney say the law is based primarily on race and unjustly takes away states’ rights.

The August opinion, written by Circuit Judge James Dennis on behalf of himself and Circuit Judge Jacques Wiener said the U.S. Supreme Court recognizes that Congress has broad power to regulate Native American tribes.

It said the act defines Indian children by tribal affiliation and not solely by race because “under some tribal membership laws, eligibility extends to children without Indian blood, such as descendants of former slaves of tribes who became members after they were freed, or the descendants of adopted white persons.”

But the law’s opponents say it is largely about race, as tribal affiliation requires proof of genetic connection to the tribe. They cite a dissent by Circuit Judge Priscilla Owen as part of their argument that the law and regulations related to it represent the federal government handling matters that should be individually decided by the states.

The case raised emotions on both sides, as Wednesday’s packed courtroom at the appeals court located in downtown New Orleans indicated. Even the overflow room that was set up to take on people who could not fit into the courtroom was packed.

The Indian Child Welfare Act was first enacted in 1978 in response to “an alarmingly high percentage of Indian families [were being] broken up by the removal, often unwanted, of their children from them by nontribal public and private agencies."

Studies of the time showed that roughly one-third of Native American children were being removed from their families by state and federal agencies and being placed with mostly non-Native American, white families or in boarding schools.

The common perception was that the removals were due to ignorance of tribes’ social norms and values or possibly for reasons of poverty, the documents say.

But Kyle Hawkins, an attorney representing the plaintiff opponents to the act said that the federal government is “commandeering” the state’s individual rights with the act.

Judge Wiener, who sat on the three-judge panel the last time the case was taken up in the Fifth Circuit, said Wednesday that tribes are being treated like foreign countries with this act.

Hawkins replied that “that is exactly the problem here” and said that if the federal government gave the Queen of England jurisdiction to govern divorce proceedings in New Orleans “it would be declared unconstitutional in the blink of an eye.”

Matthew McGill, an attorney for the individual plaintiffs, said the issue at stake in terms of equal protection is over whether tribal affiliation is a political or a race-related affiliation.

It’s obviously political, McGill said, but when it’s regulated by the states it becomes a racial issue.

“There is nothing the Brackeens can do to join the Navajo Nation,” McGill said. So, it’s political, he said.

The judges did not indicate following Wednesday’s hearing when or how they will rule.

Following the hearing, a coalition of the Native American tribes issued a statement:

“We are confident the court will once again reject this misguided effort and rule on the side of protecting families and children for years to come.”

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