Indian Child Welfare Act court hearing scheduled for January 2020

Wednesday, December 4, 2019

By Acee Agoyo

Get ready for round two. Oral arguments in a closely-watched Indian Child Welfare Act case will take place on January 22, 2020.

After offering a tentative date last month, 5th Circuit Court of Appeals made it official on Wednesday. The case known as Brackeen v. Bernhardt will go before an en banc panel of judges in New Orleans, Louisiana, where the first round of arguments took place earlier this year.

The initial hearing resulted in a major victory for the #DefendICWA campaign. A panel of three judges largely upheld the law, which was enacted in 1978 to address the high rates of Indian children being taken from their families without consideration of the impact on their tribal nations.

The John Minor Wisdom U.S. Court of Appeals Building in New Orleans, Louisiana. Photo by Indianz.Com (CC BY-NC-SA 4.0)

Over the last 40 years, ICWA has been held up as the "gold standard" in child welfare policy. But state governments run by conservative politicians, along with non-Indians who are trying to adopt, or have already adopted, Indian children claim the law violates the U.S. Constitution because it takes race into account.

A federal judge who was nominated by a Republican president and who lacks experience in Indian law and policy stunned tribes and their advocates by agreeing with the race-based premise. Indian Country quickly came together and appealed the disastrous decision to the 5th Circuit.

"This is what we need to do when sovereignty is threatened: to come together," Gil Vigil, a citizen of the Pueblo of Tesuque who serves as president of theNational Indian Child Welfare Association, said at the National Congress of American Indians 75th annual convention, where the case was a major topic of discussion. The two organizations are among those leading the ICWA defense.

“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

The stakes are higher now that ICWA is being presented to a larger group of judges, increasing the chances of a negative ruling for Indian Country. Regardless of the way the en banc panel rules, experts believe an appeal to the U.S. Supreme Court is all but certain.

“No matter who wins at the 5th Circuit, we are certain that the losing side is going to try and bring this case to the Supreme Court," Dan Lewerenz, a citizen of the Iowa Tribe of Kansas and Nebraska and a staff attorney at NARF, said at NCAI's meeting in Albuquerque, New Mexico, on October 24. NARF is another partner in the #DefendICWA campaign.

The Cherokee Nation, the Morongo Band of Mission Indians, the Oneida Nation and the Quinault Nation have been allowed to intervene in the case, as has the Navajo Nation. Additional copies of the tribal briefs -- 22 to be exact -- were circulated among the judges on the 5th Circuit last month in preparation for the upcoming hearing.

The defendants in Brackeen are officials at the Department of the Interior and the Department of Health and Human Services. The Trump administration has defended ICWA at every step of the case.

The plaintiffs challenging ICWA are the states of Texas, Indiana and Ohio, along with several non-Indians. The lead named plaintiffs are Chad Brackeen and Jennifer Brackeen, who have had two Navajo Nation children -- siblings -- in their care. They have succeeded in adopting the boy sibling and are attempting to adopt his sister.

The list of judges who will be hearing the ICWA case has not been released by the 5th Circuit. Additional information is to be posted on ca5.uscourts.gov as the argument date approaches.

The 5th Circuit is housed in the John Minor Wisdom U.S. Court of Appeals Building, located at 600 Camp Street, across from Lafayette Square, which is the second-oldest public park in New Orleans.

5th Circuit Court of Appeals Documents

Brackeen v. Bernhardt (August 9, 2019)
Brackeen v. Bernhardt Partial Dissent (August 16, 2019)

ICWA and Congress

In passing the Indian Child Welfare Act in 1978, Congress reacted to a crisis of Indian children being taken from their communities at high rates, often without input from their families or their tribal governments. Key findings from the law:

• "[T]here is no resource that is more vital to the continued existence and integrity of Indian tribes than their children and that the United States has a direct interest, as trustee, in protecting Indian children who are members of or are eligible for membership in an Indian tribe"

• "[A]n alarmingly high percentage of Indian families are broken up by the removal, often unwarranted, of their children from them by nontribal public and private agencies and that an alarmingly high percentage of such children are placed in non-Indian foster and adoptive homes and institutions"

• "The Congress hereby declares that it is the policy of this Nation to protect the best interests of Indian children and to promote the stability and security of Indian tribes and families by the establishment of minimum Federal standards for the removal of Indian children from their families and the placement of such children in foster or adoptive homes which will reflect the unique values of Indian culture, and by providing for assistance to Indian tribes in the operation of child and family service programs."

ICWA and the Media

The Native American Journalists Association recently updated its guide to ethical reporting on the Indian Child Welfare Act.

"It’s not a journalist’s duty to determine if a child is Native 'enough,' but whether or not they are citizens under Tribal law," the guide states. "Reporting phenotypes and blood percentages is culturally offensive, and disregards and diminishes the political rights of Indigenous people."

The full document can be found on najanewsroom.com.