California Tribal Families Coalition
“[T]here are troubling aspects of the opinion, and we still have work to do as tribes will not accept any reduction in the protections that ICWA has provided tribal children and families for more than 40 years,” Robert Smith, Chairman of the Board of the California Tribal Families Coalition said of a federal appeals court decision in Brackeen v. Haaland, a closely-watched Indian Child Welfare Act case.
California Tribal Families Coalition responds to ICWA decision
Tribes insist ruling in Brackeen v. Haaland won’t impact California
Thursday, April 8, 2021
Indianz.Com

The California Tribal Families Coalition on April 7, 2021, issued the following statement in response to the federal appeals court decision in Brackeen v. Haaland, a closely-watched Indian Child Welfare Act case.

After a 14-month wait, a sharply-divided U.S. 5th Circuit Court of Appeals in New Orleans has issued a opinion in Brackeen v. Haaland upholding the U.S. Congress’ authority to enact the Indian Child Welfare Act (ICWA). The decision is a triumph for tribes, tribal families, and most importantly, tribal children.

The California Tribal Families Coalition (CTFC) is a coalition of over 40 tribes and tribal leader associations from across the state that has been leading the California tribal response to the Brackeen case. CTFC is currently reviewing the complicated 325-page decision, but an initial inventory of the opinion shows that the decision should have no impact on the ICWA’s application in California.

“From the initial analysis of the decision, the news is good as the Equal Protection attack on tribes has failed,” said CTFC Board Chairman Robert Smith, who also serves as Chairman of the Pala Band of Mission Indians. “Despite this, there are troubling aspects of the opinion, and we still have work to do as tribes will not accept any reduction in the protections that ICWA has provided tribal children and families for more than 40 years.”

Key portions of the decision were limited to the Northern District of Texas, so the Congressionally-mandated protections that ICWA has provided for tribal children, families, and tribes, remain in place in California. “The Court has upheld ICWA and the worst fears for tribes and tribal advocates did not come to fruition. ICWA remains standing, especially in California,” said Teresa Sanchez, a CTFC Board member and a tribal council member with the Morongo Band of Mission Indians, the only California tribe to be a direct party in the case. “What happens in Texas does not impact ICWA in California, and California tribal leaders will continue to work with the broad base of supportive state leaders to ensure ICWA continues to apply to our cases and equal protection attacks are overcome,” said James Siva, Vice Chair of the Morongo Band of Mission Indians.

The full panel of the Court, all but 2 of the 16 judges, heard argument on the Brackeen case back in January 2020. The case challenged the constitutionality of the 43-year-old ICWA, the federal law aimed at reversing a history of Indian children being removed from their homes and tribes.

Twenty six states, including California, and the District of Columbia filed amicus briefs in the case asking the Fifth Circuit to uphold ICWA. Collectively, these states are home to 94% of federally recognized tribes and 69% of the national American Indian and Alaska Native population.

California expanded state ICWA protections in 2006 and 2018 through state law, SB 678 and AB 3176, as well as by creating Judicial Council forms and Rules of Court. In addition to state law, the California Department of Social Services and the California Attorney General have affirmed that ICWA, often called the “gold standard” for child welfare practices, remains California law.

For California tribes specifically, they will look to SB 678 and AB 3176 to further distance the Brackeen decision from cases in California. “The hard work of Tribes in ushering SB 678 and AB 1376 through the Legislature is going to ensure that potential ramifications of the Brackeen case are held at bay for our cases here in California,” said CTFC Executive Director Delia Sharpe.

SB 678 and AB 3176, incorporating both ICWA and the federal rules regarding ICWA into California law, are unaffected by the Brackeen decision. Further, with the case having no precedential effect outside of the Northern District of Texas, Tribes, Tribal Social Services and attorneys can largely ignore the convoluted decision.

As stated in the decision: “This case will not have binding effect in a single adoption. That’s right, whether our court upholds the law in its entirety or says that the whole thing exceeds congressional power, no state family court is required to follow what we say.” CTFC appreciates all ongoing support needed to keep children and families safe under ICWA. CTFC remains committed to fighting for ICWA and ensuring all the provisions are upheld. In an effort to remain vigilant, we ask that all advocates be on alert to attempts to use the Brackeen decision and ask that CTFC be immediately notified of such efforts. Together, we will defend ICWA.

About the California Tribal Families Coalition
Comprised of more than 40 tribes and tribal organizations from across the state, the California Tribal Families Coalition’s mission is to promote and protect the health, safety and welfare of tribal children and families, which are inherent tribal governmental functions and are at the core of tribal sovereignty and tribal governance.

5th Circuit Court of Appeals Decision En Banc
Brackeen v. Haaland [325 pages] (April 6, 2021)
Per Curiam [Summary 7 pages] (April 6, 2021)
Judge James Dennis [Opinion 153 pages] (April 6, 2021)
Judge Stuart Kyle Duncan [Opinion 122 pages] (April 6, 2021)
Judge Priscilla R. Owen [Concurring in part/Dissenting in part 9 pages](April 6, 2021)
Judge Jacques L. Wiener, Jr. [Dissenting in part 8 pages] (April 6, 2021)
Judge Catharina Haynes [Concurring 2 pages] (April 6, 2021)
Judge Stephen A. Higginson [Concurring in Part 4 pages] (April 6, 2021)
Judge Gregg Costa [Concurring in part / Dissenting in part 20 pages] (April 6, 2021)

Prior 5th Circuit Court of Appeals Decision
Brackeen v. Bernhardt (August 9, 2019)
Brackeen v. Bernhardt Partial Dissent (August 16, 2019)

Related Stories
Fifth Circuit Court of Appeals: Brackeen v. Haaland (April 7, 2021)
Protect ICWA Campaign statement on ICWA decision (April 7, 2021)
Indian Country Today: Decision on Indian Child Welfare Act ‘incredibly divisive’ (April 7, 2021)
‘It takes our own people to help our own people’: Marchers honor lost Native children (November 27, 2020)
Photos: Memorial March to Honor Our Lost Children (November 27, 2020)
Crushing Colonialism: Colonizer theft of Indigenous children (November 17, 2020)
Indian Country Today: Fate of Indian Child Welfare Act up to federal courts (October 12, 2020)