The Fifth District Court of Appeals has issued a stay in the case involving an October federal district court decision that struck down the Indian Child Welfare Act (ICWA). The decision means that states must follow ICWA at least until the court has decided on the case.
Three states – Texas, Louisiana and Indiana – were plaintiffs in Brackeen v. Zinke, in which U.S. District Court Judge Reed O’Connor declared that ICWA, which he considers to be race-based, is unconstitutional. As The Imprint reported last week, Texas and Indiana had already begun moving forward with plans to phase ICWA protections out of their child welfare policy. Louisiana had already planned to hold off until the case wound through the courts.
ICWA was signed into law in 1978, a time in which as many as 30 percent of Native American children were removed from their families and placed outside of their tribal network. The law requires systems to place a heavy priority on keeping a Native American child within his family, or if not with another member of the tribe.
Chrissi Nimmo, deputy attorney general for Cherokee Nation (one of the tribes appealing the decision) said the stay means “ICWA must be applied in Texas, Lousiana and Indiana until the appeal is decided.”
Nimmo said the responses provided to The Imprint, in her opinion, demonstrated that the desire to join the lawsuit did not emanate from the states’ child welfare agencies.
“These State AG’s are not attacking ICWA because they are hearing from their child protection departments that it harms children or is unworkable, they aren’t hearing directly from their state citizens (Indian or non-Indian) about problems with ICWA,” Nimmo said. “Instead, they are attacking ICWA because they are following the lead of anti-Indian, anti-sovereignty special interest groups.”
The court also approved an expedited appeal, which sets up a short timeline for the first rounds of the case. The appeal brief is due on New Year’s Eve, and the response is due January 22.
The U.S. government has also filed notice of appeal in the case, joining several tribes in fighting the ruling. Two federal agencies – the Department of the Interior and the Department of Health and Human Services – are named as defendants in the lawsuit.