Several tribal nations, including the Oneida Nation, Cherokee Nation, Morongo Band of Mission Indians, and the Quinault Indian Nation, along with the United States Department of Interior (DOI) have recently denounced a United States District Court ruling in Texas declaring portions of the Indian Child Welfare Act (ICWA) unconstitutional.
The controversial case, Brackeen, et al., v. Zinke, et al., was filed by three non-native foster families seeking to maintain custody of native children. Also listed as plaintiffs were the states of Texas, Indiana, and Louisiana who contended the ICWA violates, among other things, equal protection rights by including race-based criteria to determine where native children in foster care should be placed. The defendants listed in the filing included the United States of America, the DOI (Secretary Ryan Zinke), the Bureau of Indian Affairs (BIA), and the Department of Health and Human Services (HHS).
Shortly after the case was filed the Oneida Nation, the Cherokee Nation, the Quinault Indian Nation, and the Morengo Band of Mission Indians (listed as the “Tribal Defendants”) filed an unopposed motion to intervene which was granted by the court.
However, United States District Court for the Northern District of Texas Judge Reed O’Connor sided with the plaintiffs in his ruling stating, in part, “As a threshold matter, if (ICWA) purports to implement an unconstitutional statute, the Court must hold it unlawful and set it aside.”
Judge O’Connor also wrote the ICWA applies to children who are eligible for tribal enrollment (not necessarily enrolled) who have at least one biological parent who is native. “The ICWA’s racial classification applies to potential Indian children, including those who will never be members of their ancestral tribe, those who will ultimately be placed with non-tribal family members, and those who will be adopted by members of other tribes,” O’Connor wrote. “(ICWA’s) blanket classification of Indian children is not narrowly tailored to a compelling government interest and thus fails to survive strict scrutiny review.”
The ICWA was enacted by Congress in 1978 due to abusive child welfare practices which resulted in large numbers of native children being separated from their families and tribes and deliberately being set up for foster care placement or adoption with non-native families. ICWA mandates “in any adoptive placement of an Indian child under State law, a preference shall be given, in the absence of good cause to the contrary, to a place with: (1) a member of the child’s extended family; (2) other members of the Indian child’s tribe; or (3) other Indian families.”
Shortly after O’Connor’s ruling, the tribal defendants released a joint statement condemning the Brackeen v. Zinke decision. “We strongly disagree and are deeply disappointed with Judge O’Connor’s decision,” the statement reads. “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.
“These (past) policies (of forcible removable of tribal children from their families and their communities by state governments) devastated tribal communities and we refuse to go back those darker days,” the statement reads.
The DOI also released a statement expressing support for ICWA. “For nearly forty years, child advocacy organizations across the United States have considered the ICWA to be the gold standard of child welfare policy,” Tara Mac Lean Sweeney, Assistant Secretary of Indian Affairs with the DOI, wrote. “The DOI strongly opposes any diminishment of ICWA’s protections for Indian children, families, and tribes. The Department will continue to work with tribes and states to implement ICWA moving forward. We reiterate our support for ICWA’s goals of ensuring the safety of Indian children, maintaining Indian families, and promoting tribal sovereignty.”
Oneida Nation citizen Mike Hill, who as a child was adopted by another Oneida family, is grateful to have been raised in his tribal community and feels other native adoptees should be afforded the same opportunity. “If this were to happen to my grandchildren I would certainly want them to stay with us,” Hill said. “I would want them to know who their brothers and sisters are and keep them in the family. I was raised by foster parents and didn’t even know until I was about ten years old. If I hadn’t been raised out here in Oneida I never would have known I had a biological sister and met her. I had the best childhood imaginable and I was just a happy kid growing up. My adoption brothers were my brothers and my adoption parents were my parents.”
For now, the tribal defendants are consulting with their legal counsel to explore all available options. “Rest assured, we consider the trial level decision today as one part of a long process,” their statement reads. “We’ll seek a stay of the decision until higher courts have an opportunity to review it. We’ll 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 ICWA will be affirmed and reinforced.”
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