Author: Kate Fort
ICWA Termination of Parental Rights Case out of Texas Court of Appeals
On October 4, 2018, a federal district court in the Northern District of Texas issued an order declaring that portions of the Indian Child Welfare Act, including its placement preferences, are unconstitutional for several reasons, including that it violates equal protection and improperly requires state agencies to apply federal standards to state claims. See Brackeen v. Zinke, Civil Action No. 4:17-cv-00868-O, — F.Supp.3d —, 2018 WL 4927908 (N.D. Tex., October 4, 2018). In the Brackeen case, foster and adoptive parents, and the states of Texas, Louisiana, and Indiana filed suit against the United States, United States Department of the Interior and its Secretary, Bureau of Indian Affairs (BIA) and its Director, BIA Principal Assistant Secretary for Indian Affairs, and the Department of Health and Human Services (HHS) and its Secretary seeking a declaration that Indian Child Welfare Act (ICWA) was unconstitutional. Id. The Department contends that the United District Court’s order renders J.R.M.’s complaints moot, but the order does not indicate that the plaintiffs challenged the specific ICWA provisions at issue in this case. Further, the Brackeen case may be appealed and ICWA has previously been upheld by the United – 5 – States Supreme Court. See Mississippi Band of Choctaw Indians v. Holyfield, 490 U.S. 30, 109 S.Ct. 1597, 104 L.Ed.2d 29 (1989). Therefore, we will address the merits of the issues raised on appeal.
Statement from the Four Intervening/Appellant Tribes on the Stay of the Texas v. Zinke Decision
Joint Tribal Statement re Fifth Circuit Stay 12.3.18
We applaud the Fifth Circuit Court of Appeals for staying a recent ruling in Texas that struck down the Indian Child Welfare Act (ICWA). This stay decision protects children from potential abuse and forced separation from their families.
As a result, tribal families and their children in Texas and Indiana will continue to be protected from the types of abusive child welfare practices that Congress outlawed 40 years ago when it enacted ICWA.
By granting the stay, the protections provided by ICWA will remain in full force pending an appeal of the ruling handed down in October by a federal judge in the Northern District of Texas.
The Cherokee Nation, the Morongo Band of Mission Indians, the Oneida Nation and the Quinault Indian Nation will continue to defend Native children and Native families by advocating for the constitutionality of ICWA by all available means. We strongly believe the ruling holding the Indian Child Welfare Act is unconstitutional was wrong, will ultimately be reversed on appeal, and as a result, the rights of Indian children, families and communities protected by the Indian Child Welfare Act will be affirmed and reinforced.
Placement Preferences/Active Efforts (ICWA) Case from South Dakota Supreme Court
Footnote 4:
4. We are aware of the recent decision of the United States District Court for the Northern District of Texas holding parts of ICWA, including its placement preferences, unconstitutional. Brackeen v. Zinke, No. 4:17-cvoo868-0, 2018 WL 4927908 (N.D. Tex. Oct. 4, 2018). However, the decision may be appealed and ICWA has previously been upheld by the United States Supreme Court. Miss. Band of Choctaw Indians v. Holyfield, 490 U.S. 30, 109 S. Ct. 1597, 104 L. Ed. 2d 29 (1989). Moreover, we are not bound by the decision of the District Court in Texas and must presume that ICWA is constitutional. U.S. v. v. Nat’l Dairy Prods. Corp., 372 U.S. 29, 32, 83 S. Ct. 594, 597, 9 L. Ed. 2d 561 (1963) (noting that Acts of Congress have “strong presumptive validity’); State v. Rolfe, 2013 S.D. 2, ¶ 13, 825 N.W.2d 901, 905 (“Statutes are presumed to be constitutional[.]”).
The Father argued the state failed to provide active efforts when the children were not placed within the placement preferences. The Court did not agree with his argument.
Texas Instructs State Attorneys to Stop Following ICWA
Injunctive Relief Granted in Indigenous Environmental Network v. U.S. Dept. of State [Keystone XL Pipeline]
Previous posts/filings here.
WaPo coverage here.
Plaintiffs’ request for injunctive relief is GRANTED. The Court enjoins Federal Defendants and TransCanada from engaging in any activity in furtherance of the construction or operation of Keystone and associated facilities until the Department has completed a supplement to the 2014 SEIS that complies with the requirements of NEPA and the APA.
The Indian Child Welfare Act at 40
On this date in 1978, President Carter signed the Indian Child Welfare Act into law.
Senator Abourezk introduced the bill to the Senate on April 1, 1977, and the Senate voted on it on November 4, 1977. Interestingly, while Sen. Goldwater supported the purpose of the bill, he did not vote on the Senate’s version of ICWA. He was traveling back to Arizona the night of the vote.
The House Resolution (H.Res. 1374) to consider the bill was introduced by Rep. Shirley Chisholm, the first Black woman elected to Congress, on September 22, 1978. The House voted on the bill on October 14, 1978.
The Act was obviously the work of more people than can be named in a post, but here are the names of just some of the Native women activists identified in the book A Generation Removed: Mrs. Fournier and the mothers’ delegation of Fort Totten, Margaret Townsend (Fallon, Nevada) Evelyn Blanchard (Laguna and Yaqui), Eloise Doan (Blackfeet), Goldie Denny (Quinault), the women of the Wisconsin American Indian Child Placement and Development Program, the North American Indian Women’s Association, Janet McCloud (Tulalip and Nisqually), Maxine Robbins (Yakama), Betty Jack (Ojibwe), and Ramona Bennett, Chairwoman of the Puyallup Tribe who was denied a seat at the National Tribal Chairmen’s Association because she was a woman, and when finally allowed in, told the chairmen that while they were talking about fishing and housing and natural resources, they needed to do something about the children who were being taken away too.
As always, NARF has all of the legislative history online and searchable, which is full of important work like the letter from Eric Eberhard on behalf of the Navajo Nation, or the original statistical report from AAIA or the letter from Don Milligan at the “Indian Desk” State of Washington Department of Social and Health services detailing in 14 pages the way PL-280 was destroying tribal families.
Spending time in the legislative history of ICWA is both humbling and inspiring and a good way to spend some time on this fortieth anniversary.
Comments Needed for Pro Hac Vice Rule Change in Wisconsin (ICWA)
Rule here.
Letter regarding the rule: 18-04-Ltr to Interested Persons.
Comments due by November 29.
Any comment to the rule petition should be filed by November 29, 2018, with the Clerk of Supreme Court, Attention: Deputy Clerk-Rules, P.O. Box 1688, Madison, WI 53701-1688. If possible, email a Microsoft Word version of your response to clerk@wicourts.gov. See comment guidelines at the court’s website at https://www.wicourts.gov/scrules/petitioncomment.htm.
Nebraska Supreme Court ICWA Decision: Active Efforts
This case discusses how private parties (grandparents) can provide active efforts in a guardianship situation. This further develops this state case law in this area, most recently addressed in In re Micah H. (Neb. 2016), In re T.A.W. (Wash. 2016) and In re S.S. (Ariz. Ct. App. 2017):
In this case, Tyler was counseled by Linda concerning his drug and alcohol problems. The record shows that Linda suggested
multiple treatment programs in which Tyler could seek rehabilitation for his addiction. However, Linda and Daniel had no control with regard to forcing Tyler to seek treatment.The record demonstrates that Linda and Daniel discussed proper parenting techniques and interactions with small children. Further, Linda and Daniel assisted with scheduling visitation
and the implementation of a parenting plan. Tyler demonstrated no need for housing, financial support, or transportation
to unite with Micah. Despite Tyler’s numerous criminal convictions involving drugs and alcohol, Tyler maintained that he
does not suffer from drug or alcohol addiction.With the exception of completing parenting classes while in prison, Tyler has not sought to actively participate in drug and alcohol treatment or support programs. In fact, Tyler has attended only one Alcoholics Anonymous meeting while in prison, at the invitation of another, and suggested to the court
below that his presence at the meeting was for the purpose of supporting others in the program.Based on the specific facts and circumstances of this case, we find that Linda and Daniel undertook active efforts to provide
remedial services and rehabilitative programs designed to unite Tyler and Micah.
Brookings Institute on the Separation of Families
My research has failed to uncover a single example of how removing control, jurisdiction, or authority from tribal governments improves outcomes for the AIAN population. While tribal governments are not perfect by any means, it cannot be shown with any credibility that removal of tribal government authority has improved outcomes for the American Indian population – not in policing, governance, education policy, environmental protection, or civil jurisdiction – and certainly not for child welfare.
Turtle Talk 
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