The 5th U.S. Circuit Court of Appeals long considered the most politically conservative court in the country, has grown more so after five appointments to its ranks by President Trump. A total of 17 judges occupy the court. According to federal court watchers, President Trump is engaged in a quiet revolution to populate federal courts with judges who align with his brand of politically conservative politics. Although his 157 judicial appointments place him roughly even with both Barack Obama and George W. Bush during the same point in their tenures, his focus on federal appeals courts sets him apart from his predecessors according to the New York Times. If all of his current nominees are confirmed, they will account for 1.4 of the country’s federal appeals court judges. National Public Radio’s Carrie Johnson described Trump’s appointment of James Ho to the Fifth Circuit Court as exemplifying the Trump era. A first time judge, Ho’s first Fifth Circuit opinion has been described by legal scholars as political commentary rather than legal opinion. In Zimmerman v. City of Austin, involving limiting campaign contributions in Austin, Texas, he wrote in his dissenting opinion, “If you don’t like big money in politics, then you should oppose big government in our lives,” Vanita Gupta, president and chief operating officer of the Leadership Conference on Civil and Human Rights issued a statement about Trump’s court nominees: “The majority of his nominees have long records of hostility to civil and human rights, and too many are unqualified. Leader McConnell and Senate Republicans are transforming our federal courts because their agenda is failing in Congress and the court of public opinion.” She notes that appointments to the federal judiciary are lifetime positions.
The battle over the Indian Child Welfare Act is far from over as tribes continue to defend the landmark law against an attack from hostile state governments and non-Indians. #DefendICWA #ProtectIndianKids #Sovereignty https://t.co/7gBUXvXRln— indianz.com (@indianz) November 13, 2019
On October 4, 2018, U.S. District Judge Reed O’Connor of the Northern District of Texas ruled that the Indian Child Welfare Act is unconstitutional because it’s race-based. The ruling was based on Chad and Jennifer Brackeen, non-Natives, experience in trying to adopt a Native child, an enrolled citizen of the Navajo and Cherokee Nations whom they had fostered for a year-and-a-half. In 2017, the Brackeens filed a lawsuit in Texas seeking to adopt the two-year-old boy, identified in the lawsuit as A.L.M. Although a Navajo family was available to take the boy in January 2018 the Brackeens won their case in a Texas district court, and successfully finalized their adoption. But their lawsuit, Brackeen v. Bernhardt, proceeded anyway, joined by several other plaintiffs, including the states of Texas, Louisiana, and Indiana, and eventually landed before Judge O’Connor. Most media coverage of O’Connor’s ruling, such as a story by National Public Radio, tended to gloss over the law's political and legal context and the far-reaching implications of its reversal. Many failed to mention that conflicts concerning the child welfare system that can often be traced back to the failure of state and county authorities to notify a tribe when an enrolled child enters child protective services. And most neglected to explain that tribal identity is based not on racial identifiers, or whether a child “looks Indian,” but on their political and citizenship connections to a sovereign nation. And that gets at issues that go far beyond the ability of non-Natives to adopt Native American children. The designation that the children of enrolled tribal citizens are automatically enrolled citizens as well “is foundational to federal Indian law,” noted a statement released by the Native American Journalists Association. In March 2019, the Fifth Circuit Court of Appeals in New Orleans heard oral arguments in the Brackeen case and issued its now vacated decision in August finding that the child welfare law is not race based, unconstitutional nor does it counter the 10th amendment. If the court finds during rehearing that ICWA is unconstitutional on any front, it opens the door to overturning tribal sovereignty. And without sovereignty, treaties between the U.S. government and tribes could be subject to debate.
Uh-Oh: The 5th Circuit Court of Appeals-at the request of hostile non-Indians and states-has agreed to rehear a crucial Indian Child Welfare Act case. The outcome determines whether tribal children can stay connected to their communities. #DefendICWA #NativeAmericanHeritageMonth pic.twitter.com/xQoMU0I6mI— indianz.com (@indianz) November 7, 2019
Although the decision to rehear Brankeen v. Bernhardt appears to be based on Owen’s dissenting opinion that ICWA violates the Constitution’s anti commandeering doctrine, it will mean all plaintiff’s complaints in the original case will be up for reconsideration. The law’s opponents are emboldened by each small favorable court decision in their favor. For instance, since 2013, with an infamous lawsuit known as “Baby Veronica” that reached the Supreme Court, challenges to ICWA have increased. In the Baby Veronica case—formally called Adoptive Couple v. Baby Girl—powerful interests in the adoption industry and evangelical churches joined with high-profile attorneys to challenge ICWA’s authority regarding the adoption of an infant citizen of the Cherokee Nation named Veronica. Eventually the non-Native couple seeking to adopt Veronica, Matt and Melanie Capobianco, prevailed. Although the court found that ICWA was, indeed, constitutional, it found in favor of the Capobianco’s because the child’s Native father had not maintained custody since her birth. Not long after the Supreme Court ruled in the Capobiancos’ favor, Veronica’s non-Native biological mother, Christina Maldonado, signed onto a lawsuit against the U.S. government claiming that ICWA was unconstitutional. (She later dismissed the suit voluntarily) “ICWA opponents want another crack at the Supreme Court,” said Nicole Adams of the Colville Confederated Tribes and advisor at the Partnership for Native Children. “Redefining ICWA as race-based furthers their final agenda of dismantling Indian law as a whole,” she said.
“This is what we need to do—Come together”: At National Congress of American Indians 76th annual convention, Gil Vigil (Tesuque Pueblo) of National Indian Child Welfare Association credits tribal unity with victory in Indian Child Welfare Act case. #NCAIAnnual19 @NativeChildren pic.twitter.com/uvB7HDdnuV— indianz.com (@indianz) October 24, 2019
It’s these dynamics that ICWA was created to address: helping ensure that tribes, as sovereign nations, have jurisdiction over their own children. Since the act’s establishment, several prominent child advocacy organizations have declared it the gold standard for child welfare policies and practices for American Indian children. Despite the law, tribes often decide not to transfer eligible children to tribal jurisdiction for a number of reasons: that the child may have close tribal and family connections in a non-Indian placement, or the tribe may lack the resources to intervene in cases located far from the reservation. Notably, in the Brackeen, the tribs ruled in favor of the non-Native family’s adoptions. These scenarios, however, seldom receive media coverage. There is little data regarding states’ compliance with Indian Child Welfare Act, but a 2015 study by Casey Family Programs suggests that many government child protection agencies fail to follow the law. The lack of federal oversight for enforcing ICWA adds to gaps in compliance. “For years, under ICWA, tribes have been making determinations in child welfare cases based on the best interest of the child,” noted law professor Matthew Fletcher. “Suggesting that tribes don’t routinely make child welfare decisions based on the best interest of the child is just ignorant.” The legal battle over ICWA will likely continue for several years, and Fletcher and others believe that future challenges are inevitable.
“We are certain that the losing side is going to try to bring this case to the Supreme Court”: Derrick Beetso (Navajo) says tribes are closely monitoring the Indian Child Welfare Act case in the 5th Circuit Court of Appeals. #NCAIAnnual19 #DefendICWA @NDNrights @NCAI1944 pic.twitter.com/RLQhAPbaTI— indianz.com (@indianz) October 24, 2019
One of the richest anti-ICWA funders is the Goldwater Institute. Since 2015, the libertarian non-profit has underwritten several legal challenges to ICWA. Attorneys at the Goldwater Institute filed an amicus brief in Brackeen v. Bernhardt, reiterating its past claims that ICWA is race-based and unconstitutional. And Timothy Sandefur, the Institute’s vice president for litigation, compared ICWA to discrimination suffered under Jim Crow laws, telling The Nation in 2017 that ICWA subjects Native children to an unfair set of rules based on race. The Institute, along with the Cato Institute and the Texas Public Policy Foundation filed an amicus curiae brief supporting the current Fifth Circuit’s decision to hold En Banc hearings on ICWA. The Institute describes Indian communities as environments “where poverty, crime, abuse and suicide are rampant,” and cites data showing that American Indian children have the highest rate of foster care of any ethnic group as an argument against ICWA. In essence, this blames American Indians for the outcomes of generations of federal assimilationist policies and recommends more of the same as a solution. And yet, as Fletcher noted, “The Goldwater Institute has no history of expressing interest in either Indian or family law.” Although the Goldwater Institute has created an organization called Equal Protection for Native Children and frequently works with other ICWA opponents such as the Cato Institute, it has no history of working to improve the economic, educational, or health circumstances of Native children. Indeed, according to the organization’s income tax filing from 2016, its primary areas of research include constitutional law, education reform, and healthcare policy. Among the Goldwater Institute’s major donors are the Koch brothers, well-known opponents to federal power and spending. Through their various advocacy organizations, the Koch brothers fund and support groups such as ALEC, which, like the Goldwater Institute, has called for a constitutional convention that would focus on elevating states’ rights and reducing federal oversight and regulation.
To learn more about the battle over the Indian Child Welfare Act and the right of tribes to play a role in protecting their most precious resource, read here: https://t.co/HL0x6duQqj #DefendICWA #NativeForum #NativeVote2020 #NativeVote— indianz.com (@indianz) August 19, 2019
The other ally against the child welfare law the National Council for Adoption, and the adoption movement it represents. Matthew McGill, the lead plaintiffs’ attorney in Brackeen v. Bernhardt, is part of a husband-and-wife legal team with a long history of challenging the Indian Child Welfare Act. McGill’s wife, Lori Alvino McGill, also a lawyer, represented the adoptive parents and the non-Indian biological mother in the Baby Veronica case ,accompanying them on a media tour, including an appearance on the Today Show The couple represent a larger constituency in the private adoption industry, which has become a powerful lobby against ICWA. Private adoptions are a lucrative business, with attorney fees routinely running between $10,000 and $40,000. But as obstacles to international adoptions have grown, there is a greater interest in domestic adoptions in the U.S.—including adoptions from Indian Country. Many clients of private adoption attorneys like the McGills are members of a Christian adoption movement that encourages evangelicals to see adoption as a means to live out their faith help the needy, and evangelize children. The statement of faith for Nightlight Christian Adoptions — the agency affiliated with the Baby Veronica case — holds that adoption fulfills the Bible’s mandate to make disciples of all nations. Practicing Christians are more than twice as likely to adopt than the general population, according to a 2013 study by the Barna Group. The study also found that most adoptive parents are White, while the children they adopt are overwhelmingly non-White.
OUCH: The partial dissent in the Indian Child Welfare Act case is finally out and it's not the greatest for the #DefendICWA campaign. Judge Priscilla Owen thinks certain parts of ICWA are unconstitutional "because they direct state officers or agents to administer federal law."— indianz.com (@indianz) August 16, 2019
Mary Annette Pember works as an independent journalist focusing on Indian issues and culture with a special emphasis on mental health and women’s health. Winner of the Ida B. Wells Fellowship for Investigative Reporting, Rosalynn Carter Fellowship for Mental Health Journalism, the USC Annenberg National Health Fellowship and Dennis A. Hunt Fund for health journalism she has reported extensively on the impact of historical trauma among Indian peoples. She has contributed to ReWire.News, The Guardian, The Atlantic and Indian Country Today. An enrolled member of the Red Cliff Band of Wisconsin Ojibwe, she is based in Cincinnati, Ohio. See more at MAPember.com.
Note: This story originally appeared on Indian Country Today on November 24, 2019. Portions of this article first appeared in Public Eye Magazine on November 11, 2019 for Political Research Associates.