Get ready for round two. Oral arguments in a closely-watched Indian Child Welfare
case will take place on January 22, 2020.
After offering a tentative date last month, 5th Circuit Court of
made it official on Wednesday. The case known as Brackeen
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.
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.
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
Bernhardt (August 9, 2019)
Bernhardt Partial Dissent (August 16, 2019)
ICWA and CongressIn 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.
Join the Conversation
child welfare legal challenge is about ending tribal sovereignty (November
under attack': Tribes defend Indian Child Welfare Act in critical case
(November 12, 2019)
Hoskin: Working to protect Cherokee Nation families (November 4, 2019)
see slower season at nation's highest court but big cases remain unresolved
(October 29, 2019)
captain discusses children lost to the system (September 9, 2019)
candidates tackle tough issues at historic Native forum (August 21, 2019)
Frazier: Victory for our children and the Indian Child Welfare Act (August
Child Welfare Act survives legal attack but obstacles remain (August 12,
Pretends Eagle Weber: History is repeating itself when it comes to genocide
(July 4, 2019)
Magazine: Truth and reconciliation for Indian child welfare (June 25, 2019)
Sun News Today: Native mother walks to nation's capital for humanity (May
Sharp: The attack on the Indian Child Welfare Act cannot stand (March 21,
Indian Child Welfare Act likely headed to Supreme Court (March 19,
are not your children': Future of Indian Child Welfare Act in hands of appeals
court (March 14, 2019)
Tribal leaders react to hearing in Indian Child Welfare Act case (March 13,
5th Circuit Court of Appeals oral arguments in Brackeen v. Zinke (March 13,
Country asks appeals court to protect #NativeChildren in critical case
(March 13, 2019)
court schedules lengthy hearing in Indian Child Welfare Act case (March 11,
John Baker: Stand strong and stand up for our Native children (March 11,
push back as Indian Child Welfare Act case heats up (February 7, 2019)
nations present united front in Indian Child Welfare Act case (January 22,
health law killed by same judge behind Indian Child Welfare Act ruling
(December 17, 2018)
News: Tribes on 'pins and needles' in Indian Child Welfare Act case
(November 13, 2018)
puts hold on controversial Indian Child Welfare Act ruling (December 4,
held in honor of Native children lost in foster care (November 22, 2018)
Treppa: Court decision threatens the Indian Child Welfare Act (October 29,
and direct attack': Tribes vow fight for Indian Child Welfare Act (October
tribal leaders criticize ruling in Indian Child Welfare Act case (October
Country outraged by decision in Indian Child Welfare Act case (October 8,
strikes down Indian Child Welfare Act in contested ruling (October 5,
help bring down barriers to Indian Child Welfare Act (October 3, 2018)
weigh next move in Indian Child Welfare Act case (September 26, 2018)
strikes down landmark Indian Child Welfare Act ruling (September 18,
court won't rule on challenge to Indian Child Welfare Act (August 7, 2018)
group claims victory in Indian Child Welfare Act case (March 15, 2018)
Lee Brewer: Attacks on Indian Child Welfare Act are real (March 13,
Country News: Indian Child Welfare Act under conservative fire (March 6,
Court turns away another conservative attack on Indian Child Welfare Act
(February 21, 2018)
battle state of South Dakota over removal of Indian children (February 19,
Child Welfare Act under attack again as conservative group submits appeal to
Supreme Court (December 12, 2017)
up, fight back!' -- Annual march to honor lost Native children continues
(November 23, 2017)
News: Tribal advocates welcome action on Indian Child Welfare Act case
(November 1, 2017)
Court won't take up race-based challenge to Indian Child Welfare Act
(October 30, 2017)
parents file lawsuit to halt transfer of child custody cases to tribes
(October 11, 2017)
group launches another attack on Indian Child Welfare Act (July 24, 2017)