Tribes Will Seek Stay on Indian Child Welfare Act Ruling, Feds Response in Limbo

Late last week, a federal judge ruled that the Indian Child Welfare Act (ICWA) was unconstitutional, leaving in jeopardy a 40-year-old law meant to protect a tribe’s ability to prevent the removal of children from Indian reservations or families.

Click here to read about the decision in Brackeen et al v Zinke et al, and click here for a historical look at what led to ICWA’s passage by Congress in 1978.

The tribes involved as defendants have filed for a stay of proceedings to temporarily halt any action related to the decision, according to Chrissi Ross Nimmo, deputy attorney general of Cherokee Nation.

The motion for a stay argues that the tribes are likely to succeed in their appeal of the ruling, that they will be “irreparably injured” without a stay, and that the stay will not “substantially injure plaintiffs.”

Nimmo said that were the stay to be denied, the immediate impact would only apply to the three specific children named in the case, all of whom are involved in adoption proceedings with non-Indian families. Mark Fiddler, an attorney that represents an adoptive Minnesota family involved in the case, said “he is in the process of figuring out how to capitalize” on the decision for his clients.

The ruling as it stands only definitely covers Texas, the state where the decision was made. Fiddler said he had contacted Texas Attorney General Ken Paxton to see if the state believed it could stop enforcing ICWA as an immediate result of the decision, but had not heard back yet. Were the Fifth Circuit Court of Appeals to uphold the decision, its implications would then spread to Louisiana and Mississippi.

But the immediate effect of the case is a bit more murky for Louisiana and Indiana, the other two states that serve as plaintiffs in the case.

“Right now, the bottom line is outside Texas and those two states, ICWA is enforceable,” Fiddler said. “The question mark is, what about those three states? If I’m a social worker in Indianapolis, or New Orleans or Houston, I’m going, ‘What does this mean?’ Believe me, I bet lawyers in those [child welfare] offices are scrambling to figure that out right now.”

Leadership at two federal agencies are defendants in the lawsuit alongside several tribes: the Department of the Interior, which oversees most federal Native American programs, and the Department of Health and Human Services (HHS), which oversees federal child welfare funding.

Interior’s Assistant Secretary for Indian Affairs, Tara Mac Lean Sweeney, has already stated that the agency “strongly opposes any diminishment of ICWA’s protections for Indian children, families and tribes.”

HHS has not yet committed to fighting the decision.

“The Children’s Bureau at HHS’ Administration for Children and Families is currently in the process of analyzing the decision and does not have any additional information to provide at this time,” spokesperson Monique Richards said.

Children’s Bureau Commissioner Jerry Milner told The Imprint: “We’re still doing our own analysis and trying to figure that [ICWA enforcement plan] out. That’s very recent so we haven’t made any decisions on this at this point about what our next step will be.”

Note: This article was updated on October 11.

If you are interested in reading more about federal child welfare and juvenile justice policy, read our annual special issue “Kids on the Hill: A Special Issue on Child Welfare Policy” by clicking here!

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