In a complex ruling that seems destined for the highest court in the land, the Fifth Circuit Court of Appeals went in several directions on the fate of the Indian Child Welfare Act (ICWA), which was passed in the 1970s at a time when between a quarter and a third of all Native children were being removed from their families.
In Brackeen v. Haaland, U.S. District Judge Reed O’Connor ruled in 2018 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.
The Brackeen case centers on three non-Indian families seeking to adopt children of Native American ancestry. Two of the children have parents or grandparents who are enrolled members of tribes; one child’s biological father is an unregistered descendant of a tribe. Three states – Indiana, Louisiana and Texas – are also plaintiffs in the case.
A Fifth Circuit panel of three judges overturned O’Connor, but the court then agreed to rule on the case en banc. In a 325-page ruling issued yesterday, the court ruled ICWA to be constitutional, but a majority of the judges agreed to strike several provisions from the law.
Of most significance among the disputed sections is the “active efforts” requirement, a part of ICWA that has led some in the child welfare community to consider it the gold standard for how cases should proceed. Active efforts, as defined in the law, means “affirmative, active, thorough, and timely efforts intended primarily to maintain or reunite an Indian child with his or her family.” This is a higher expectation than the “reasonable efforts” set in federal law for child welfare services in cases not involving children who are members of a tribe.
The Fifth Circuit also found unconstitutional the requirement in ICWA that a “qualified expert witness” must be provided by any child welfare agency seeking to place an Indian child into foster care, or by any agency seeking to terminate the rights of an Indian child’s parent. It also struck down the requirement that states keep a record of each placement experienced by an Indian child in such a way that it can demonstrate efforts to maintain the child’s bond with the tribe.
The judges deadlocked on another key provision of ICWA, requiring that in cases involving Indian children, the preference for foster care and adoption placements are first the extended family of the child and second, members of their tribe or foster homes approved by the tribe. The tie, the court explained in its decision, means that the district court’s ruling is affirmed “without precedential opinion.”
The impact of this decision is something that many ICWA supporters are still trying to sift through.
“From the initial analysis of the decision, the news is good as the Equal Protection attack on tribes has failed,” said Robert Smith, chairman of the Pala Band of Mission Indians and the board chairman of the California Tribal Families Commission, in a statement released yesterday. “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.”
Several opponents of ICWA, who believe its requirements leave Indian children in jeopardy of remaining with or being returned to dangerous parents, were quick to celebrate the circuit’s decision.
“The decision is a major, if limited, victory for Indian children, who, thanks to ICWA, are denied the legal rights that children of other races enjoy,” said Timothy Sandefur of the Goldwater Institute, writing for the organization’s blog.
“Federal law says you can’t discriminate against adoptive families because they are Black, or because they are White – but the High Court has not yet reached a determination when it comes to Native American children,” said Darcy Olsen, CEO of the Arizona advocacy group Gen Justice, in a statement released today. “These children and families deserve the same protections as all Americans.”
Both of those comments describe ICWA as a race-based law, a view echoed by the district court opinion in 2018. But the Fifth Circuit rejected this premise, upholding ICWA’s status as a law based on sovereignty.
As for the immediate impact of the decision, the phrase “without precedential opinion” seems to be rare enough that it isn’t clear what direct impact comes from the ruling on foster care and adoption preferences. It could apply somewhat directly to the actual plaintiff families and their pursuit of custody, and perhaps to the Northern District of Texas, where this case originated.
At least one of the circuit judges, Gregg Costa, derided the preference decision as little more than advice for states.
“It will no doubt shock the reader who has slogged through today’s lengthy opinions that, at least when it comes to the far-reaching claims challenging the Indian Child Welfare Act’s preferences for tribe members, this case will not have binding effect in a single adoption,” Costa wrote. “There is a term for a judicial decision that does nothing more than opine on what the law should be: an advisory opinion. That is what the roughly 300 pages you just read amount to.”
As for the ICWA components ruled unconstitutional by the Fifth Circuit – active efforts, expert witnesses and record keeping – it looks like the effective date for those will be early June.
Costa also teed off on these majority positions in his opinion, calling it a “tragic irony” that federal powers on Indian affairs are challenged in this circumstance.
“After more than two centuries of courts’ recognizing sweeping federal power over Indian
affairs when that power was often used to destroy tribal life, our court comes within a whisker of rejecting that power when it is being used to sustain tribal life,” Costa said.
Chrissi Nimmo, deputy attorney general of the Cherokee Nation, said it is all but a foregone conclusion that one of the many parties involved in this case will appeal and seek a date with the U.S. Supreme Court.
“At least part of the decision declared a federal law unconstitutional,” she said, in an email to Youth Services Insider. “That makes it almost certain that some party will seek cert.” [This refers to the Supreme Court’s process of “granting certiorari” to cases that it will consider.]
If the high court does agree to hear Brackeen, it is likely that the impact of the decision within the Fifth Circuit will be put on hold until there is a final opinion on the matter. If the court does not choose to take the case, it gets murky: we could have an entire federal district operating without some of the key tenets of ICWA, and one section of Texas operating with even less of the law in place.
The aforementioned situation would likely drive legal challenges to the Indian Child Welfare Act in other federal districts, so the guess here is that the Supreme Court will hear a challenge to the law for the third time since its passage in 1978.