By: Racheal M. White Hawk | Associate | racheal.whitehawk@procopio.com
Theodore J. Griswold | Partner | ted.griswold@procopio.com

Last week, federal district court Judge Reed O’Connor in Texas dealt a blow to decades of efforts to preserve Native American families by finding that the Indian Child Welfare Act of 1978 (“ICWA”) is unconstitutional in Brackeen v. Zinke, No. 4:17-cv-00868-O (N.D. Tex. Oct. 4, 2018).  Selectively ignoring long-held Supreme Court Indian law precedent, the ruling is the first in the country to find that ICWA in its entirety is unconstitutional.  The ruling raises serious questions about whether it will survive appellate review and what impact it will have on Indian communities.

The Brackeen case involves three Indian children in need of foster care and adoptive placement.  As Indian children, the federal ICWA takes precedence in their foster care and adoptive placement proceedings in state court, requiring preferences for placing Indian adoptees in Indian homes to preserve Indian families and tribal cultures.  Congress enacted ICWA in 1978 with its placement preferences in response to the Indian adoption era, a period of approximately thirty years in which 25 to 35% of Indian children were forcibly removed from their homes and 90% were placed in non-Indian homes resulting in broken families and cultural depletion in many tribal communities.

The Brackeen case was brought by individual non-Indian parents seeking to adopt Indian children, who were joined by three state governments (Texas, Louisiana, and Indiana) and supported by anti-ICWA groups that filed numerous similar suits throughout the country, but had not prevailed in striking down ICWA.  The defendants included the federal government, with several Tribes intervening in the proceedings.

The district court first held that ICWA’s preference to place Indian children in Indian homes is race-based, and under “strict scrutiny” review, the law is not narrowly-tailored to further a compelling government interest.  The district court held that ICWA, therefore, violates the equal protection component of the Fifth Amendment’s Due Process Clause.  This holding ignores well-established Supreme Court precedent regarding American Indian tribes as political entities, not racial groups, to which the federal government owes a unique trust responsibility.  See Morton v. Mancari, 417 U.S. 535, 554–55 (1974).  Moreover, just last year, the Supreme Court declined to review the argument that ICWA is a race-based law, resulting in the upholding of an Arizona Court of Appeals’ decision that ICWA is not based on race.  See S.S. v. Stephanie H., 388 P.3d 569, 576 (Ariz. Ct. App. 2017), cert. denied sub nom. S.S. v. Colorado River Indian Tribes, 138 S. Ct. 380 (2017)).

The Texas district court then held that the federal government unlawfully requires states to commit resources to enforcing ICWA, in violation of the Tenth Amendment’s prohibition on commandeering state legislatures.  The district court also briefly addressed the plaintiffs’ other arguments, holding that Congress unlawfully delegated legislative power to tribes under ICWA, in violation of Article I of the Constitution, and that the Indian Commerce Clause does not constitutionally save ICWA.  The court also found the ICWA regulations invalid.

Although the decision in Brackeen purports to strike down ICWA and its regulations as unconstitutional, the ruling only affects the parties in the case.  The intervenor tribes are seeking a stay, as well as appellate review of the decision.  Numerous organizations and state governments supporting tribes and ICWA have filed amicus briefs in the case and have expressed desire to continue supporting the case on appeal.  When appealed, the case will progress to the U.S. Court of Appeals for the Fifth Circuit.

The plaintiffs in the Brackeen case are supported by organizations that unsuccessfully presented similar arguments to the U.S. Court of Appeals for the Ninth Circuit.  See Carter v. Tahsuda, No. 17-15839, 2018 WL 3720025 (9th Cir. Aug. 6, 2018).  The organizations simultaneously targeted a different venue–the District Court for the Northern District of Texas–hoping for a better result, which they received.  (Judge O’Connor, a GOP appointee, has been a target judge for conservative advocates contesting national issues such as transgender rights, DACA, and the Affordable Care Act.)  Although the Ninth Circuit did not weigh in on the merits of the arguments in the Carter case, if the Fifth Circuit were to hold ICWA unconstitutional, differing outcomes of circuit cases could influence the Supreme Court to grant review on the constitutionality of ICWA.  The recent addition of Brett Kavanaugh to the Supreme Court may not bode well for tribes if the Court were to review ICWA’s constitutionality.  Kavanaugh authored an Amicus Brief in Rice v. Cayetano, 528 U.S. 495 (2000), on behalf of a conservative think tank in which he argued that Native Hawaiians were racial groups, not political entities.  The Texas district court in Brackeen cited Rice in holding ICWA unconstitutional as a race-based law.  There is concern that Kavanaugh may view American Indian tribes in the same way, i.e., as racial groups, not political entities.  For now, the Brackeen case only affects the parties involved.

If the Texas ruling is upheld, it could have severe ramifications in federal Indian law, potentially invalidating numerous federal laws that Congress has enacted based on its special trust responsibility to tribes.  Tribes, other entities, or individuals concerned about this ruling and interested in supporting ICWA can show their support in several ways.  One way to support ICWA is to vote for and financially support government officials in upcoming elections who will support ICWA.  Another way is to support, financially or otherwise, organizations currently working to support the tenets of ICWA, such as the National Indian Child Welfare Association, the Native American Rights Fund, the Association on American Indian Affairs, and the National Congress of American Indians.  If you or your family members have been affected by pre-ICWA removal policies, contact the Partnership for Native Children, who can help you share your story so that others will better understand why ICWA is such an important law and what is at stake with the Brackeen decision.

Procopio will continue to monitor the Brackeen case closely as it progresses in the courts.

Procopio_White_Hawk_RachealRacheal M. White Hawk (Rosebud Sioux Tribe) is an Associate and member of Procopio’s Native American Law Practice Group.  Racheal is a member of the Arizona Bar and is awaiting results from the California Bar.  Connect with Racheal at racheal.whitehawk@procopio.com and 619.906.5654.

Ted GriswoldTed Griswold is head of Procopio’s Native American Law Practice Group and primary editor for the Blogging Circle.  Connect with Ted at ted.griswold@procopio.com and 619.515.3277.

Indian Child Welfare Act (ICWA) Consultations Begin This Week

By: Michele B. Brown| Senior Counsel | michele.brown@procopio.com
Stephanie Conduff | Attorney | stephanie.conduff@procopio.com
Theodore J. Griswold
 | Partner | ted.griswold@procopio.com

The Bureau of Indian Affairs is hosting a series of consultative meetings with tribal leaders and the public starting this week and concluding on May 14th in Tulsa, Oklahoma.

On March 20, 2015, the published draft regulations were released by the Bureau of Indian Affairs (BIA). They seek to improve the implementation of the Indian Child Welfare Act (ICWA) for state courts and public and private agencies. As part of the notice and comment period the BIA is hosting a series of public hearings and tribal consultations.

One of the main issues turns on the word “must” or “should.” The BIA asks commenters to analyze the draft regulations’ use of the term that an action “must” be taken because it is authorized by ICWA versus proposed provisions which provide that certain actions “should” be taken.

The first meeting was held Monday in Portland, Oregon in conjunction with the National Indian Child Welfare Association (NICWA) conference in Portland, Oregon.

Upcoming Tribal Consultation Sessions:

  • Thursday, April 23, 9 a.m. – noon MST, Rapid City, South Dakota
  • Tuesday, May 5, 9 a.m. – noon MST, Albuquerque, New Mexico
  • Thursday, May 7, 9 a.m. – noon CST, Prior Lake, Minnesota
  • Monday, May 11, 1 p.m. – 4 p.m. EST, via teleconference call-in number 888-730-9138, Passcode: INTERIOR
  • Thursday, May 14, 9 a.m. – noon CST, Tulsa, Oklahoma

Upcoming Public Meetings:

  • Thursday, April 23, 1 p.m. – 4 MST, Rapid City, South Dakota
  • Tuesday, May 5, 1 p.m. – 4 p.m. MST, Albuquerque, New Mexico
  • Thursday, May 7, 1 p.m. – 4 p.m. CST, Prior Lake, Minnesota
  • Tuesday, May 12, 1 p.m. – 4 p.m. EST, via teleconference
  • Thursday, May 14, 1 p.m. – 4 p.m. CST, Tulsa, Oklahoma

Assistant Secretary Washburn invites public comments at the consultation sessions or, hand delivered to Ms. Elizabeth Appel, in DC or in submitted in writing to comments@bia.gov.

For specific instructions in submitting comments, please visit the tribal leader letter that can be accessed here: http://www.indianaffairs.gov/cs/groups/public/documents/text/idc1-029630.pdf

A copy of the proposed regulations and schedule of tribal consultations and public hearings is available here: http://www.bia.gov/cs/groups/public/documents/text/idc1-029629.pdf

Please let us know if we may provide additional information or assistance regarding the Bureau of Indian Affairs proposed regulations for the Indian Child Welfare Act or related matters.

Michele B. Brown focuses her practice on family law. Since 2002, Michele has been a Certified Family Law Specialist, certified by the State Bar of California, Board of Legal Specialization. She is extensively involved in drafting and reviewing family law legislation in California and frequently testifies before the Senate and Assembly Judiciary Committees on family law.

Stephanie Conduff, a citizen of the Cherokee Nation, is a member of the firm’s Real Estate and Environmental Team and a member of the Native American Law practice group. Her practice emphasizes working with tribal governments, individual Native people, and companies doing business in Indian Country. She provides advice and strategic policy analysis on national regulatory issues and advises clients of the legal and policy issues. Stephanie’s work focuses on tribal sovereignty and self-governance, tribal lands, and the federal trust responsibility.

Ted is head of the Native American Law practice group and primary editor for the Blogging Circle. Connect with Ted at ted.griswold@procopio.com and 619.515.3277.

Bureau of Indian Affairs Releases New ICWA Guidelines

By: Theodore J. Griswold | Partner | ted.griswold@procopio.com

For the first time since the enactment of the Indian Child Welfare Act (ICWA) 35 years ago, the Bureau of Indian Affairs (BIA) has updated its guidelines for state courts and agencies in Indian child custody proceedings. The new guidelines are a welcome response to dozens of comments and listening sessions provided to the BIA throughout 2014, many of which provided specific suggestions for guidelines consistent with ICWA jurisprudence since 1979.

ICWA was enacted in 1978 after Congress found that “an alarming high percentage of Indian families are broken up by the removal, often unwarranted, of their children from them by nontribal public and private agencies and that an alarmingly high percentage of such children are placed in non-Indian foster and adoptive homes and institutions.” With this purpose, ICWA was adopted to state the strong federal policy that “where possible, an Indian child should remain within the Indian community.” Over the years, this somewhat foreign concept to State courts has been molded and defined through individual cases; however, it has been difficult to get uniform acceptance of the special nature of child custody proceedings dealing with Indian children. These guidelines provide significant clarifying authority for Tribal members, family members and State courts to make the application of ICWA more consistent and its purposes more successful. In addition to the guidelines themselves, the document contains specific examples explaining the purpose and nature of ICWA in real family context.

A copy of the updated BIA’s guidelines for State Courts in Indian Child Custody Proceedings can be found here and the BIA’s website containing the new (and previous) guidelines, the Indian Child Welfare Act statute, frequently asked questions and other helpful resources can be found here.

Ted is head of the Native American Law practice group and primary editor for the Blogging Circle. Connect with Ted at ted.griswold@procopio.com and 619.515.3277.