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Fifth Circuit Court of Appeals stays recent ruling striking down ICWA

The Fifth Circuit Court of Appeals has ruled for a stay of proceedings in the October 2018 decision by U.S. District Judge Reed O’Connor who declared portions of the Indian Child Welfare Act (ICWA) unconstitutional. The controversial case, Brackeen v Zinke, was filed by the states of Texas, Indiana, and Louisiana as well as three non-native foster families seeking to maintain custody of native children. The defendants listed in the case are the Department of Interior (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 joined together and filed an unopposed motion to intervene which was granted by the court. The four intervening tribes are listed as the “Tribal Defendants” in the court proceedings.

In his October ruling 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 foster care or adoption preference be given to members of the child’s extended family, other members of the child’s tribe, or other Native families.

This current order by the Fifth Circuit Court of Appeals to stay O’Connor’s ruling is the first move in what is sure to be a years-long legal battle to keep the ICWA, widely regarded as the Gold Standard for child welfare policy, declared completely constitutional.

Following the Fifth Circuit Court stay, the four intervening tribes released a joint statement praising the decision. “We applaud the Fifth Circuit Court of Appeals for staying a recent ruling in Texas that struck down the ICWA,” the tribes wrote. “This stay decision protects children from potential abuse and forced separation from their families. By granting the stay, the protections provided by ICWA will remain in full force pending an appeal of the ruling handed down in October.”

“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,” the statement reads. “We strongly believe the ruling holding the Indian Child Welfare Act as 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.”

The hot button issue is being closely monitored across Indian Country by groups such as National Congress of American Indians (NCAI), the Native American Rights Fund (NARF), and the Association on American Indian Affairs (AAIA).

NCAI President Jefferson Keel, of the Chickasaw Nation of Oklahoma, said the stay is a welcome and positive step. “NCAI will continue to support the intervening Tribal Nations and the Department of Justice as they fight to protect the best interests of all Indian children across the United States through the Indian Child Welfare Act,” Keel said.

NARF Staff Attorney Dan Lewerenz, of the Iowa Tribe of Kansas and Nebraska, said the ICWA is not some new, unimplemented statute that can be set aside without repercussions. “It is an act of Congress, 40 years tried and true, that is intricately woven into state and tribal welfare systems,” Lewerenz said. “Its unraveling would have had serious and harmful effects on dozens, if not hundreds, of Native children. We’re glad the Fifth Circuit recognizes that.”

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