FEDERAL DISTRICT COURT IN TEXAS DEFIES PRECEDENT, HOLDS ICWA UNCONSTITUTIONAL

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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.

California Considering Waiving Pro Hac Vice Requirements for Attorneys Representing Tribes in ICWA Cases

California Considering Waiving Pro Hac Vice Requirements for Attorneys Representing Tribes in ICWA Cases

By:      Ted Griswold | Partner | ted.griswold@procopio.com

In a move that is supported by many Tribal practitioners, the Tribal Court-State Court Forum is recommending an amendment to the California Rules of the Court, Rule 9.40, to waive the requirement that out-of-state counsel appear pro hac vice for the purposes of representing Tribes in Indian Child Welfare Act (ICWA) cases in California.  This proposed move is important for two reasons in California:

  1. California has an extraordinarily high number of appeals of ICWA cases, particularly by Tribes, indicating that at the initial decision level Tribal Governments are often not well represented in ICWA cases.
  2. In addition, California cities were destinations for many of the removal efforts of the federal government in the 20th century when families and children of Tribal communities were removed from reservations in assimilation efforts. As a result, there are a high number of Native American individuals in California whose heritage derives from tribes outside of the state.

A combination of these two factors has raised common concerns for the ability of Indian Children and their Tribal interests to receive proper protection under ICWA and the barriers to out-of-state Tribes’ representation in ICWA cases in the State of California.  The proposal partially stems from a California ICWA Compliance Task Force presentation to California Attorney General Xavier Becerra, which highlighted the problems associated with representation for out-of-state Tribes and recommended the revision for pro hac vice rules.  Review of the rules can be found here.  Comments regarding the proposed rule change, due by June 8, 2018, may be submitted to the Judicial Council of California by clicking here.  If adopted, the revised rule would take effect January 1, 2019.   The Judicial Council’s invitation to comment and additional information can be found here.

Ted GriswoldTed Griswold 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.