ICT: “Texas Judge rules Indian Childhood Welfare Act as unconstitutional”

Here.

An excerpt:

Nicole Adams and other advocates are calling for Indian Country’s leaders and tribes to act now to protect ICWA and the sovereignty of tribes before it is too late. Adams warns, “we don’t want to look back twenty years from now and ask ourselves what were we doing when ICWA was threatened.”

Partnership for Native Children PR on Texas ICWA Case

Partnership for Native Children Decries Anti-ICWA Decision

Calls judge’s ruling ‘an outlier, out of step with the law and constitutional jurisprudence’

The Partnership for Native Children strongly disagrees with and is disturbed by Judge O’Connor’s decision in Brackeen v. Zinke which has stricken down the Indian Child Welfare Act (ICWA) four decades after it was enacted. This is the first decision of its kind, and is an outlier—out of step with the law and decades of constitutional jurisprudence.

With the support and guidance of a longstanding coalition of anti-ICWA activists, the plantiffs in Brackeen want to remove ICWA’s provisions that protect against removing Native children from their parents and culture, leaving unfettered access to Native children. Not content with that outcome, they wish to undermine the U.S. Constitution and centuries of established law by eradicating tribes’ Constitutionally-protected relationship with the United States government.

Although this decision is limited in application, it serves as a roadmap for other ICWA litigation intending to overturn ICWA and we should expect future litigation seeking to undermine tribal sovereignty and federal Indian law writ large.

Emboldened by the Adoptive Couple v. Baby Girl decision in 2013, these anti-ICWA forces—led by the adoption industry, religious coalitions, and a conservative think tank—have spent years bringing forth suit after suit in courts throughout the country, sometimes even using identical briefs in different forums, all in the attempt to have ICWA declared unconstitutional. After losing each case, due in part to their outrageous contention that ICWA is a race-based law (it is not), they have finally found a judge in the United States District Court for the Northern District of Texas sympathetic to their arguments.

While they choose to ignore thousands of testimonials from Native families who assert that those who will be most hurt by this decisions are our most sacred and vulnerable children, the Partnership for Native Children stands with Indian Country and affirms that we will continue to fight for them. We support legal efforts to appeal this unprecedented decision. We will work tirelessly to demand the media cover these issues thoroughly and responsibly. And we will work closely with those children, families, and tribes who want their perspectives finally included in the national dialogue about the best interests of our children. Their voices have been ignored for far too long.

The Partnership for Native Children refuses to go back to those the days where tribal children were removed simply because of cultural misunderstandings, for financial gain, and due to pure prejudice. We also refuse to let extremist groups use our children as a tool to undermine the foundations of Indian law and tribal sovereignty.

The Partnership for Native Children remains unwavering in our commitment to defend the constitutionality of ICWA by all available means and will continue to work in support of tribes and Native people throughout the country to ensure that Native children, families, and tribes are protected.

Here is our press release.

California Tribal Families Coalition Press Release on Texas ICWA Case

U.S. District Court Decision Puts Native American Children and Families at Risk

The California Tribal Families Coalition joined others nationwide in expressing disappointment over the ruling.

In an unprecedented ruling that threatens Native American children and families, U.S. District Court Judge Reed O’Connor in the Northern District of Texas declared the federal Indian Child Welfare Act (ICWA) unconstitutional in an opinion in Brackeen et. al. v. Zinke, filed October 4, 2018.  

While unnerving, attorneys fighting for ICWA say the decision is not applicable throughout the United States. Rather, it is limited in scope and will likely be stayed pending appeal. The decision from a U.S. District Court in Texas is not applicable in California. 

The Indian Child Welfare Act (ICWA) is a 40-year old remedial statute that protects Indian children, families and tribes. The original complaint was filed by adoptive parents and supported by Texas, Indiana and Louisiana, and the decision is contrary to Congressional intent, the Constitution and decades of well-established Indian law.

California Attorney General Xavier Becerra, leading a bipartisan coalition of Attorneys General, filed an amicus brief in the case to defend the ICWA. ICWA sets specific child welfare rules designed to ensure that cases regarding abuse, neglect and adoption involving Native American children are handled in a culturally appropriate manner. 

“Those of us who were raised in Indian Country, those of us who raise our children on the reservations, those of us who know Indian families – we know that ICWA protects our children. This targeted and well-financed attack on ICWA only reminds tribes of the long and tortured history we have endured in the United States,” Robert Smith, chairman of the California Tribal Families Coalition  and the Pala Band of Mission Indians.

About the California Tribal Families Coalition.

Comprised of tribes and tribal leaders from across the state, the California Tribal Families Coalition’s mission is to promote and protect the health, safety and welfare of tribal children and families, which are inherent tribal governmental functions and are at the core of tribal sovereignty and tribal governance. For information, please visit https://www.caltribalfamilies.org

Contact: Delia M. Sharpe, CTFC Executive Director, 916-583-8289 ordelia.sharpe@caltribalfamilies.org

Tribes’ Statement re: Brackeen v. Zinke Decision

STATEMENT REGARDING RULING STRIKING DOWN THE INDIAN CHILD WELFARE ACT

We strongly disagree and are deeply disappointed with Judge O’Connor’s decision in Brackeen v. Zinke in the U.S. District Court for the Northern District of Texas striking down the Indian Child Welfare Act, four decades after it was enacted. We remain steadfast in our commitment to defend the constitutionality of ICWA by all available means for one simple reason: If ICWA is struck down in whole or in part, the victims will be our children and our families, Native children and Native families.

The apparent goal of Plaintiffs’ litigation is an extreme one — to separate children from their parents. Before ICWA, as many as one-third of all tribal children were forcibly removed from their families and their communities by state governments. Thorough and objective analysis of the systematic removal of Indian children from Indian homes found many removals were wholly unjustified. These policies devastated tribal communities and we refuse to go back to those darker days. We are heartened by the support of so many states that stand shoulder to shoulder with us in this litigation to protect families.

We are in consultation with our legal counsel and exploring all available options.  Rest assured, we consider the trial level decision today as one part of a long process. In the interim, we will seek a stay of the decision until higher courts have an opportunity to review it.  We will continue to work in state courts throughout the country to ensure the protections of ICWA for Native children, families, and tribes. We strongly believe that, in the end, our rights protected by the Indian Child Welfare Act will be affirmed and reinforced.   

  • Principal Chief Bill John Baker, Cherokee Nation
  • Chairman Robert Martin, Morongo Band of Mission Indians
  • Chairman Tehassi Hill, Oneida Nation
  • President Fawn Sharp, Quinault Indian Nation

Federal Judge Rules ICWA Unconstitutional in Brackeen v. Zinke

Here is the opinion in Brackeen v. Zinke (N.D. Tex.):

166_DCT Order.pdf

Case page with briefs here.

A federal court has held that ICWA violates the equal protection component of the Fifth Amendment’s Due Process Clause, rejecting the Morton v. Mancari argument and applying strict scrutiny. The court further held that ICWA violated the Tenth Amendment’s prohibition on commandeering state legislative functions. The court more or less summarily rejected the argument that the Indian Commerce Clause authorized Congress to enact ICWA. Finally, the court struck down the ICWA regulations.

Still, there will certainly be an appeal. The case is limited only to the parties involved.

Update: New Briefs Filed in Brackeen v. Zinke

Below are the latest filings in Brackeen v. Zinke, challenging ICWA, filed in the Northern District of Texas District Court on May 25, 2018:

108 Law Profs

110-1-Gila Amicus

115 Feds Reply in Opp State Motion to Dismiss

116 Fed Reply in Opp Individual Motion to Dismiss

118-Tribal Intervenor Brief Opposing SJ

121-Feds Brief Opp to SJ States

123-Feds Opp SJ Individuals

124-1 State (CA, AK, MT, UT, NM, WA, OR) Amicus

125 – Tribal amicus brief (123 federally recognized tribes, AAIA, NCAI, NICWA, AFN, ASNA, AVCP, BBNA, CATG, Chugachmiut, Kawerak, Inc., TCC, USET, CTFC, Nebraska Indian Child Welfare Coalition

For more information, please visit the case page here.

Update in Texas v. Zinke (federal ICWA case)

Here are the updated filings in the federal ICWA case in Texas:

The federal government filed a motion to dismiss, here.

But THEN, Plaintiffs filed (another) amended complaint–here.

It’s about 8 pages longer than the previous complaint, and adds the Department of Health and Human Services, the Secretary of the Department, and the United States as defendants. While the complaint still requests the court find all of ICWA unconstitutional and unenforceable, it also broadens the discussion beyond 1915 placement preferences to the collateral challenge provisions in 1913 and 1914. The complaint also still contends that certain provisions of IV-B and IV-E (parts of the Social Security Act) are not enforceable–those that purportedly link state compliance with ICWA to federal funding.

The feds will file another (slightly longer) motion to dismiss, and it will be here as soon as it is available.

However, the court has ALSO granted the tribal motion for intervention, available here.