Marchers gather at the base of the War Eagle Monument in Sioux City, Iowa, on November 22, 2017, as part of the 15th Annual Memorial March to Honor Lost Children. Photo by Kevin Abourezk

Judge strikes down Indian Child Welfare Act in contested ruling

Tribes across the nation are preparing for a big battle after a federal judge struck down the Indian Child Welfare Act as unconstitutional in a case many believe is headed to the U.S. Supreme Court.

The Cherokee Nation, the Morongo Band of Mission Indians, the Oneida Nation and the Quinault Nation were dealt a major blow with the ruling on Thursday. So was the Navajo Nation, whose government wasn't even allowed to intervene even though the case affects a child who is eligible for citizenship.

But appeals are being strongly considered after Judge Reed O'Connor, a Republican appointee who has little experience in Indian law, accepted arguments that courts across the country have rejected. In the 47-page decision, he declared ICWA to be a "race-based statute" that treats Indian children differently because of their ancestry or heritage.

The outcome conflicts with numerous other rulings, which have determined that ICWA -- like most federal Indian laws -- is consistent with the recognition of tribes as sovereign governments. That's a political, not a racial, distinction, the courts have consistently noted.

O'Connor, however, went against decades of precedent from his courtroom in northern Texas, where no tribes are located. He said the federal government "did not prove—or attempt to prove" why Indian children need to remain connected to their communities.

"The ICWA’s racial classification applies to potential Indian children, including those who will never be members of their ancestral tribe, those who will ultimately be placed with non-tribal family members, and those who will be adopted by members of other tribes," O'Connor wrote in the decision, a copy of which was posted by Turtle Talk. "Because two of the three preferences have no connection to a child’s tribal membership, this blanket classification of Indian children is not narrowly tailored to a compelling governmental interest and thus fails to survive strict scrutiny review."

But O'Connor didn't stop there. By recognizing tribal preferences in child welfare proceedings, ICWA represents an illegal grant of power to tribal governments, he said.

"No matter how defendants characterize Indian tribes—whether as quasi-sovereigns or domestic dependent nations—the Constitution does not permit Indian tribes to exercise federal legislative or executive regulatory power over non-tribal persons on non-tribal land," the decision stated.

And, finally, O'Connor struck down Bureau of Indian Affairs regulations that were meant to strengthen compliance with ICWA. The rules, which were finalized during the Obama era, violate the so-called "commandeering" doctrine because it forces states, their child welfare agencies and their courts to act in a certain way, he concluded.

Although the Indian Commerce Clause of the U.S. Constitution is often cited as the basis for most federal Indian laws, "no provision in the Constitution grants Congress the right to 'issue direct orders to the governments of the states,'" O'Connor wrote.

Cherokee Nation Principal Chief Bill John Baker signs a pledge banner to raise awareness about children’s mental health. Photo: Anadisgoi

In a joint statement, the four tribes who were granted a role in the case said they were "deeply disappointed" with the decision. They are considering their options as they continue to defend the 1978 law that was enacted at a time when tribal children were being removed from their communities at alarmingly high rates.

"We remain steadfast in our commitment to defend the constitutionality of ICWA by all available means for one simple reason: If ICWA is struck down in whole or in part, the victims will be our children and our families, Native children and Native families," Chief Bill John Baker of the Cherokee Nation, Chairman Robert Martin of the Morongo Band of Mission Indians, Chairman Tehassi Hill of the Oneida Nation and President Fawn Sharp of Quinault Nation said in the statement on Friday.

The conservative Goldwater Institute, on the other hand, was jumping for joy. The group has been unsuccessful in striking down ICWA with lawsuits in other federal courts so the new ruling represents a major victory for its efforts.

“Today’s 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, the vice president for litigation at the Goldwater Institute, which was named in honor of late Barry Goldwater, a Republican who voted for ICWA when he served in the U.S. Senate.

With such high stakes in play, the case, known as Brackeen v. Zinke and Texas v. Zinke, is poised for further litigation. It could even end up before the Supreme Court, whose last ICWA case went against tribal interests in Adoptive Couple v. Baby Girl, a decision from 2013.

Tribes in Alaska, many of whom joined a brief in Brackeen, are in fact worried about such a repeat, especially with the nomination of Brett Kavanaugh to the nation's highest court. They have called on the Senate to reject his confirmation, citing his "misguided" views on some of the very same issues being argued in the ICWA case.

"Confirming a nominee with this viewpoint would be disastrous for Alaska, and would roll back the gains of self-determination and usher back in the losses of termination," the Alaska Federation of Natives, the largest organization of its kind in the state, said in a September 12 statement.

'Stand up, fight back!'

Annual march to honor lost Native children continues

Native parents and advocates march every year to honor children lost in the welfare system.

Photos: Memorial March to Honor Our Lost Children in Iowa

The Tlingit and Haida Tribes reaffirmed their opposition to Kavanaugh last week, after his nomination advanced by a narrow, party-line vote. They specifically asked Sen. Lisa Murkowski (R-Alaska), who has been an advocate for Native issues, and Sen. Dan Sullivan (R-Alaska), whose wife and children are Native, to vote against Kavanaugh.

"Tlingit & Haida continues to oppose Kavanaugh's confirmation based on his threat to tribal sovereignty, self-determination, and the rights of Alaska Natives and all indigenous peoples of this country," a September 28 statement read.

But while Sullivan joined his Republican colleagues in voting to advance Kavanaugh's nomination on Friday morning, Murkowski did not. She was the only member of her party to vote "NAY" on the procedural motion, whose outcome was a close 51 to 49.

“I believe Brett Kavanaugh is a good man,” Murkowski told reporters after the initial vote on Friday. "It just may be that, in my view, he is not the right man for the court at this time.”

Only one Democrat, Sen. Joe Manchin of West Virginia, voted in favor of advancing the nomination.

The Senate can now proceed to a final vote on Kavanaugh, a vote that's expected to take place on Saturday. Republican leaders are confident he will be confirmed and seated on the court in time for activities next week.

In the meantime, the tribes involved in Brackeen plan to ask judge O'Connor to put a hold on his decision while they take the case to the 5th Circuit Court of Appeals, a step below the Supreme Court.

"We intend to seek a stay and we will appeal," attorney Keith Harper, a citizen of the Cherokee Nation whose law and policy firm is representing the four tribes, told Indianz.Com on Friday. "We strongly disagree with the decision and think ICWA - a law that has been to the Supreme Court on multiple occasions - is plainly constitutional."

Though Adoptive Couple, the 2013 case, went against tribal interests and resulted in the adoption of a Cherokee girl against her biological father's wishes, the Supreme Court at the time did not strike down any provisions of ICWA.

The plaintiffs in Brackeen named Secretary Ryan Zinke and other officials at the Department of the Interior as defendants. The Trump administration has been backing the law as part of the case.

In passing ICWA, government attorneys wrote in a brief, "Congress arrived at a statutory solution to this crisis that protects, first and foremost, the best interests of Indian children, but also the rights of their parents and families and the interests of states and tribes."

A spokesperson for Interior referred request for comment to the Department of Justice A spokesperson there responded on Friday: "The Department is reviewing the court’s ruling and considering next steps."

Tribal Statement
Principal Chief Bill John Baker of the Cherokee Nation, Chairman Robert Martin of the Morongo Band of Mission Indians, Chairman Tehassi Hill of the Oneida Nation and President Fawn Sharp of Quinault Nation issued the following joint statement in reaction to the October 4, 2018, ruling:
“We strongly disagree and are deeply disappointed with Judge O’Connor’s decision striking down the Indian Child Welfare Act, four decades after it was enacted. We remain steadfast in our commitment to defend the constitutionality of ICWA by all available means for one simple reason: If ICWA is struck down in whole or in part, the victims will be our children and our families, Native children and Native families.

The apparent goal of Plaintiffs’ litigation is an extreme one -- to separate children from their parents. Before ICWA, as many as one-third of all tribal children were forcibly removed from their families and their communities by state governments. Thorough and objective analysis of the systematic removal of Indian children from Indian homes found many removals were wholly unjustified. These policies devastated tribal communities and we refuse to go back to those darker days. We are heartened by the support of so many states that stand shoulder to shoulder with us in this litigation to protect families.

We are in consultation with our legal counsel and exploring all available options. Rest assured, we consider the trial level decision today as one part of a long process. In the interim, we will seek a stay of the decision until higher courts have an opportunity to review it. We will continue to work in state courts throughout the country to ensure the protections of ICWA for Native children, families, and tribes. We strongly believe that, in the end, our rights protected by the Indian Child Welfare Act will be affirmed and reinforced.”

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