This article was originally printed in the NARF Legal Review, Vol. 42 No. 2 (Summer/Fall 2019).
Protecting the Law that Protects Our Children
In August 2019, a federal appeals court in Louisiana affirmed that the US Constitution allows Congress to pass laws that protect the best interests of Indian children. That seems like a common-sense notion. One that wouldn’t require three distinguished judges and the collective work of hundreds of attorneys from across the country. So why was it necessary for a panel of the Fifth Circuit Court of Appeals to resolve this issue?
Because a particular law, the Indian Child Welfare Act (ICWA), is under attack. It has been attacked by adoption agencies that have financial incentive to see more Indian children put up for adoption. It has been attacked by ideological think tanks intent on undermining all of Indian law. It has been attacked by state attorneys general over the objections of their own child welfare departments.
When a law that was put into place to protect Indian children comes under attack, it requires a nationwide response. It requires tribes, tribal organizations, and Indian law practitioners to come together with one voice. And it requires a partnership with allies in Congress, federal government, state government, child and family services, and academia that know how well ICWA works. This type of coordinated response is one of the things that the Native American Rights Fund does best.
A Shameful History
Since before the founding of the United States, Native communities have witnessed their children being forcibly removed from their families. Early in our nation’s history, policymakers identified the removal of indigenous children as an efficient strategy to destroy tribes and erase Native cultures and communities. Starting in the 19th Century, Indian children were relocated to government-sponsored boarding and industrial schools to be “civilized.” It was the federal government’s official policy to remove American Indian children from their homes and communities. The crisis of Indian child removals and adoptions arose in large part from decades of official policy aimed at the forced assimilation of Indians, particularly Indian children, into mainstream society.
More recently, children were taken from their families by a child welfare system that disproportionately removed Native American children from their homes. In the 1950s, the federal government partnered with state and private agencies to form the Indian Adoption Project (IAP). It furthered the policy of “Indian extraction,” whereby Indian children would be adopted out primarily to non-Indian families in order to reduce reservation populations, reduce spending on boarding schools, and satisfy a “large demand for Indian children on the part of Anglo parents.” In its ten-year lifespan, the IAP itself took almost 400 Native children from western states to white families on the other side of the country. It also facilitated the removal of thousands more Indian children. After years of study, a Congressionally chartered task force in 1978 reported, “The removal of Indian children from their natural homes and tribal setting has been and continues to be a national crisis.”
Tribal nations and Native advocates spent years working to raise awareness of the problem. In Senate hearings held in 1974, Native families described their children being removed without notice and welfare agents pressuring new mothers to give up their children. Further testimony detailed how state courts allowed removals to occur without due process. Native parents were neither advised of their rights nor provided with legal representation; their children were just taken. Likewise, tribal authorities often were not given notice of these child removals; their member children just disappeared.
These child removals devastated families, and the damage reverberated out to their communities and tribes. As Congressman Morris K. Udall described at the time, tribes “are being drained of their children and, as a result, their future as a tribe and a people is being placed in jeopardy.” By the time Congress recognized the problem, more than a quarter of all Native children had been separated from their families. And even when family members were willing and able to take these children, 85% were removed entirely from their communities.
In response to these alarming facts, Congress enacted the Indian Child Welfare Act in October 1978. Their goal was to improve the handling of Indian child welfare cases and the outcomes for Indian children and Indian families. ICWA first affirms that Indian tribes have exclusive jurisdiction over child welfare proceedings for on-reservation Indian children and Indian children who are wards of tribal courts. ICWA also recognizes tribal jurisdiction, concurrent with that of states, over off-reservation Indian children, and it encourages state courts to transfer Indian child welfare proceedings to tribal courts. When transfer is impractical and state courts retain jurisdiction, ICWA provides objective, consistent, and transparent standards to protect Native children and preserve family/community relations, including:
- Requiring state courts to give notice to both tribes and Indian parents of Indian child welfare proceedings;
- Allowing tribes to participate as intervenors in state-court proceedings;
- Requiring the testimony of qualified expert witnesses and other “active efforts” to prevent the break-up of Indian families; and
- Establishing preferences for family placement, tribal placement, and Indian family placement in all foster care and adoption proceedings.
The law promotes keeping families and communities together when it is safe and possible. Child welfare experts recognize family reunification as promoting the best outcomes for all children—Native or non-Native. In light of the incredibly high rate of removals of Native children from their families and their communities, ICWA is a necessary tool to help ensure that these best practices are applied consistently for tribal citizens. Even in cases where biological parents are not available, there often are family or community members who are well-suited to serve as that child’s caretakers. Years of research and experience have shown that maintaining these family and community connections, otherwise known as kinship placements, best serve a child’s needs. ICWA is considered the gold standard in child welfare because it makes family and community placement a priority.
Quite simply, ICWA was meant to protect the best interests of Indian children and encourage stability in Native families and communities in light of ongoing attempts to destabilize Native communities. ICWA helps block interference with Native families and communities. It counters years of government policies meant to end the existence of tribes, and it systemically promotes Native children’s well-being, which consistently has been neglected.
Attacks against ICWA
Notwithstanding all of the good that ICWA does for Indian children, Indian families, and Indian tribes—not to mention states and their local communities, which often benefit from tribes’ expertise and assistance in Indian child cases—legal challenges to ICWA are on the rise. The last five years have seen a rash of lawsuits challenging the constitutionality of ICWA. And while the names on the docket are those of non-Native couples wanting to adopt Native children, many of these lawsuits are backed by wealthy and politically motivated interests such as the Goldwater Institute (which repeatedly has challenged policies that address systemic discrimination) and private adoption attorneys (who have a financial incentive to undermine ICWA).
In case after case, the courts have affirmed the validity and importance of ICWA in ensuring the best interests of Native American children. After numerous failed attempts (Goldwater has been involved in at least a dozen ICWA cases in recent years), Brackeen v. Bernhardt (originally Brackeen v. Zinke) was filed in North Texas federal court in 2017. Brackeen was brought, in alliance with the Texas Attorney General, by a non-Native couple seeking to adopt an Indian child. (An amended complaint brought additional potential adoptive parents and the States of Indiana and Louisiana as plaintiffs.) They argued, among other things, that ICWA operates based on race rather than the unique legal/political status of Indians under federal law and that ICWA requires state courts to ignore the best interests of Indian children.
In October 2018, Judge Reed O’Connor from the US District Court for the Northern District of Texas ruled in Brackeen that ICWA illegally discriminates based on race, in violation of the Fifth Amendment’s equal protection guarantee. Judge O’Connor also held that ICWA places unconstitutional burdens on state agencies and courts and that ICWA impermissibly delegates Congress’s legislative powers to Indian tribes.
Defending the Law
Judge O’Connor’s ruling flies in the face of decades of established law. To be clear, Indian Law is not race based. Our tribes predate the United States; the US Constitution recognizes that tribes are sovereign entities. That political relationship, and the federal trust responsibility toward Indians that flows from it, is why Congress may pass laws that single out Indians for special treatment. ICWA affirms these principles. It fulfills the trust responsibility owed to Indian children by establishing minimum federal standards for removal and placement. It respects tribes’ authority to have a role in protecting their children.
The plaintiffs’ arguments were based on the false premise that ICWA applies to Indian children because of their ancestry, but that’s not true. ICWA applies to children who are either (1) tribal members, or (2) are both eligible to be tribal members and the biological children of a tribal member. Self-identification as American Indian or Alaska Native is not sufficient to trigger ICWA. That means, when ICWA classifies certain children as Indian children, it does so because of legal and political circumstances—either tribal membership or eligibility for membership coupled with having a tribal member parent—not because of any racial circumstances.
The Brackeen plaintiffs also argued that ICWA forces courts to look past the best interests of children and blindly adhere to race-based foster and adoptive placement preferences. That’s not true either. After years of extensive fact-finding, a bipartisan Congress found that ICWA’s standards serve the best interests of Indian children, while also giving courts flexibility when ICWA’s preferences are not the best fit.
In addition to calling for appropriate placement and due diligence, ICWA acknowledges the inherent power of tribal nations to act as advocates for their citizens, including children and families who find themselves in state child welfare cases. Tribes devote significant resources to these cases. They may know the child’s extended family relations while the state child welfare worker does not. Tribes often are well-situated to support the child’s best interests and a family’s rehabilitation. These tribal resources increasingly are important for states that have chronically under-funded child welfare programs and often rely on tribes to assist in providing additional resources to tribal children who are in state custody. Getting rid of ICWA would deny the child that additional advocate and resource.
In the Brackeen case, ICWA’s reputation for success and high standards was made plain in the support that it received. In addition to the 325 tribal nations and 57 tribal organizations represented on the tribal amicus brief, more than 30 leading child welfare organizations, 21 states’ attorneys general, and several members of Congress all filed briefs recognizing that ICWA’s requirements are the absolute best practices based on decades of experience and research.
For years, NARF, with partners including the National Congress of American Indians, the National Indian Child Welfare Association, and the Association on American Indian Affairs, has coordinated strategies to raise awareness about the importance of ICWA. Countering willful misinformation and lack of understanding about the law requires unflagging efforts. In all federal ICWA cases (including Brackeen), NARF has coordinated the amicus strategy and written the tribes’ amicus briefs. Given the history of attacks on Native families—and the resulting destruction of Native communities—NARF considers the protection of Native families and communities a top priority. Attacks against ICWA and tribes’ authority to protect their member children and families will not go unanswered.
In March 2019, a three-judge panel of the US Court of Appeals for the Fifth Circuit heard the appeal from Judge O’Connor’s Brackeen decision. On August 9, 2019, the Fifth Circuit published its decision (available at https://www.narf.org/nill/documents/20190809brackeen-icwa-opinion.pdf). The three-judge panel affirmed ICWA’s constitutionality, recognized the political status of tribes and Indians, and upheld the law that is so critical to safeguarding Indian child welfare. It was a resounding victory for the law and those who fought to protect it, including—most important—for the tribal nations who work tirelessly to protect their people and communities. It also is a win for child welfare advocates looking to ensure the best practices for vulnerable children.
The Fight Continues
Unfortunately, on October 1, 2019, the Brackeen plaintiffs asked the Fifth Circuit to review the case in front of all of the court’s judges instead of a three-judge panel. The plaintiffs advance the same arguments they made before: that ICWA operates on the basis of race, that it unconstitutionally “commandeers” state agencies and state courts, and that it improperly delegates Congressional authority to tribes. If the court grants review, it may either uphold the Fifth Circuit panel’s decision or replace it with a new decision. Regardless of what happens, we anticipate the plaintiffs will not stop at the Fifth Circuit and will petition the US Supreme Court for review.
Cherokee Nation Principal Chief Chuck Hoskin Jr., Morongo Band of Mission Indians Chairman Robert Martin, Oneida Nation Chairman Tehassi Hill, and Quinault Indian Nation President Fawn Sharp said in a statement, “We won our case in the Fifth Circuit . . . on the merits because ICWA is constitutional. ICWA ensures that there is a process in place that keeps children close to their tribal communities, which gives them a sense of identity and belonging that cannot be found elsewhere. It is because of the importance of this critical law that we will continue defending these children. We will remain steadfast in defense of ICWA, no matter what it takes.”
NARF will continue to support the tribes in whatever ways that we can as they fight to protect their citizen children and families.
 Child Welfare Information Gateway. 2016. Racial Disproportionality and Disparity in Child Welfare. https://www.childwelfare.gov/pubPDFs/racial_disproportionality.pdf (accessed October 1, 2019.)
 Slaughter, Ellen. 1976. Indian Child Welfare: A Review of the Literature, 61. University of Denver Research Institute. Available at http://files.eric.ed.gov/fulltext/ED138422.pdf
 American Indian Policy Review Commission. Report on Federal, State, and Tribal Jurisdiction of the Final Report to the American Indian Policy Review Commission, 87. Washington, DC: GPO.
 US Senate. 1974. Subcommittee on Indian Affairs of the Committee on Interior and Insular Affairs. Hearing: Indian Child Welfare Program. Apr 8-9.
 Congressional Record. 1978, 124:38102 (statement of Rep. Udall)
 National Indian Child Welfare Association. “About ICWA.” https://www.nicwa.org/about-icwa/ (accessed October 1, 2019)
 Brief of Casey Family Programs, Child Welfare League of America, Children’s Defense Fund, Donaldson Adoption Institute, North American Council on Adoptable Children, Voice for Adoption, and Twelve Other National Child Welfare Organizations as Amici Curiae in Support of Respondent Birth Father, Adoptive Couple v. Baby Girl, 570 U.S. 637 (Sup. Ct. 2013) (No. 12-399) at https://sct.narf.org/documents/adoptivecouplevbabygirl/merits/support_of_respondents/casey_family_programs.pdf