Tribes Appeal, Seek Stay on Indian Child Welfare Act Ruling; Feds Yet to Act

A recent federal court ruling found most of the Indian Child Welfare Act unconstitutional. Several tribes have appealed the decision and are seeking a stay.

Several tribes have formally appealed last month’s decision in a federal district court that the 40-year-old Indian Child Welfare Act (ICWA) is in part unconstitutional.

In Brackeen v. Zinke, U.S. District Judge Reed O’Connor ruled in favor of three states – Texas, Indiana and Louisiana – and several foster and adoptive couples, declaring that ICWA was a race-based law lacking a present-day articulation of its need. Citing a recent Supreme Court ruling on sports gambling, O’Connor also ruled that ICWA unfairly expected states and tribes to enforce federal standards.

Tribes, including Cherokee Nation and Oneida Nation, have appealed the decision to the Fifth Circuit Court of Appeals, which has jurisdiction over Louisiana, Mississippi and Texas.

The federal government has yet to act in defense of ICWA in court. Leadership at two federal agencies were named in the lawsuit that prompted the recent Texas ruling: the Department of the Interior and the Department of Health and Human Services. The former has indicated an intention to defend the law; the latter has not made any public comment about the decision.

Ultimately, it will fall to the Department of Justice (DOJ) to defend ICWA in court. Chrissi Nimmo, deputy attorney general of Cherokee Nation, said she expects that to happen.

“Regardless of the administration’s thoughts about [ICWA], it’s almost unheard of that DOJ will not appeal when a federal law is found to be unconstitutional,” she said.

ICWA was passed in 1978 at a time when a staggering number of Indian children were taken from reservations and placed with white families, often far away from their tribes and families-of-origin. In the 1960s and 1970s, the Association on American Indian Affairs found that 25 to 35 percent of all Native children were being removed from their families.

The law mandates that, when a child is removed from home for abuse or neglect, state and tribal child welfare agencies take clear steps to keep children connected to their families and tribes. Placement with non-Indian foster families should thus be a placement of last resort in the foster care continuum. Adoptions by non-Indian families can be challenged for up to two years by tribes if they believe the parent’s consent for it was obtained by fraud or under duress.

In appealing O’Connor’s decision to the higher court, the tribes also asked the Fifth Circuit to stay the lower court’s ruling until the appeal has been ruled on. They argue that they are likely to succeed in their appeal, and that they will be injured by a lack of stay while a stay will not injure other parties.

“The district court’s ruling will cause significant inconsistency throughout the country,” the motion to stay said. “As this Court noted in Bryant [Campaign for Southern Equality v. Bryant], when issuing a stay, [t]he inevitable disruption that would arise from a lack of continuity and stability in this important area of the law will harm the parties and ‘the public interest at large.’”

Judge O’Connor denied the tribes’ initial request for a stay of his decision. Nimmo said the Fifth Circuit is likely to grant a stay, but that the tribes could pursue a stay from the U.S. Supreme Court if not.

“The likelihood of receiving a stay from the Fifth Circuit is high,” Nimmo said.

Texas has already begun to ponder action based on O’Connor’s ruling. An October letter sent to the Texas Department of Family and Protection Services, by Texas First Assistant Attorney General Jeffrey Mateer, instructs the child welfare agency to prepare to update policy under the assumption that O’Connor’s ruling will stand.

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