A recent court ruling in Texas has Native American tribes across the country — including the Eastern Band of Cherokee Indians — concerned about threats to their status as sovereign nations.

The ruling, handed down by U.S. District Judge Reed O’Conner, concluded that the 1978 law governing child welfare actions in Indian Country is race-based and therefore unconstitutional. It had previously been seen as a law based on tribes’ political — not racial — status.

“The big concern is this eroding away through court decisions of the foundation of tribal sovereignty,” said EBCI Principal Chief Richard Sneed.

During its Oct. 18 meeting, the Cherokee Tribal Council voted unanimously to pass a resolution “authoriz(ing) aggressive and active efforts through all diplomatic and legal means necessary to defend the legal precedents from which all Indian Nations exercise their inherent sovereignty as Tribal Nations.”

When the body met again Nov. 1, Sneed told them that the tribe’s attorney general’s office is working with its federal lobbyist to prepare a “friend of the court” brief to submit to the Texas court, explaining the tribe’s point of view and concerns regarding the ruling.

The case

The ICWA was enacted in 1978 to quell the widespread removal of Native American children from their families. At the time, 25 to 35 percent of all Native children were taken, with 85 percent of those placed outside their families and communities — even when viable placements with relatives were available, according to evidence presented to Congress at the time.

The forcible separation of Indian people from their families and homeland has a long history in the saga of federal-tribal relations, with examples ranging from the Trail of Tears to boarding schools run with the explicit goal of causing Indian children to forget their heritage and assimilate to Western culture.

The ICWA contains a variety of provisions governing child custody cases involving Native American children, including an order of preference for adoptions. First preference goes to a member of the child’s extended family, second to an adoptive family within the child’s tribe and third to members of other Indian tribes — only then can non-Native families adopt.

“It is saying that Indian children need that connection with their culture, with their language, with their religious beliefs that are unique to Indian tribes, and to ensure that that happens it creates a framework where an Indian child will be adopted to a near kin relative or a member of that tribe so they’re being raised in that culture, with their people, in their belief system,” said Sneed.

In the Texas case Brackeen vs. Zinke, a couple hoping to adopt a 2-year-old child challenged that law. Chad and Jennifer Brackeen began fostering the boy in 2015, when he was 10 months old. In 2017, the boy became available for adoption, and the Brackeens hoped to make him an official member of their family. His biological mother is a member of the Navajo Nation and his father is a member of the Cherokee Nation — as the Brackeens were undergoing adoption proceedings the Navajo Nation suggested that the boy be placed with family in New Mexico instead. The case went to court.

The case includes two other plaintiffs as well — Nick and Heather Libretti are seeking to adopt a 20-month-old girl from the Ysleta del Sur Pueblo, and Jason and Danielle Clifford want to adopt a 6-year-old girl eligible for membership in the White Earth Band of Ojibwe. Those adoptions were also challenged on the basis of the ICWA.

In his Oct. 4 decision, U.S. District Judge Reed O’Conner ruled in favor of the adoptive families in a 47-page opinion that concluded the ICWA violates the Fifth Amendment right to equal protection. The ruling found ICWA to be a “race-based” statute, creating a different set of rules for Indian children based on their ancestry. Much of the issue resides in the law’s definition of “Indian child,” O’Conner wrote, because it applies both to children who are enrolled members of a federally recognized tribe and to those who are eligible for membership but not currently enrolled. In addition, he took issue with the fact that two of the three preferences for adoption placement aren’t solely connected to the adopter’s membership in the child’s tribe.

“Because two of the three preferences have no connection to a child’s tribal membership, this blanket classification of Indian children is not narrowly tailored to a compelling governmental interest and thus fails to survive strict scrutiny review,” O’Conner wrote.

On Oct. 29, O’Conner ruled against the tribes’ request that the court stay implementation of the ruling until after appeals play out. However, the legal process is not over.

“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,” reads an Oct. 5 statement from Cherokee Nation Principal Chief Bill John Baker, Morongo Band of Mission Indians Chairman Robert Martin, Oneida Nation Chairman Tehassi Hill and Quinault Indian Nation President Fawn Sharp.

Reaction to the ruling

The decision has spurred widespread criticism in Indian Country, with leaders warning that it could have detrimental impacts if allowed to stand.

“The apparent goal of Plaintiffs’ litigation is an extreme one — to separate children from their parents,” reads the Oct. 5 statement. “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.”

“This egregious decision ignores the direct federal government-to-government relationship and decades upon decades of precedent that have upheld tribal sovereignty and the rights of Indian children and families. Through 40 years of implementation, ICWA’s goal is to promote family stability and integrity. It continues to be the gold standard in child welfare policy,” reads a joint statement from the Native American Rights Fund, the National Indian Child Welfare Association, the National Congress of American Indians and the Association on American Indian Affairs.

The Arizona-based Goldwater Institute, which is arguing the case, sees it differently.

“The law forces state officials to return abused and neglected children to the adults who have harmed them, and makes it prohibitively difficult to adopt Native American kids,” reads a summary of the case on its website. “Tragically, these children suffer more than any other demographic in the country from abuse, neglect and other disadvantages. And ICWA’s genetics-based rules only make things worse.”

In an interview, Sneed said that while he understands this court process could be difficult on the individual children involved, overall the ruling will have a “huge negative ripple effect throughout Indian Country and affect the lives of hundreds of thousands if not millions of people who are members of Indian tribes.” It’s paramount that courts understand that the federal government’s relationship to Indian tribes is based on political affiliation, not racial identity, he said.

“If it’s deemed unconstitutional and that’s allowed to stand, it opens the door to every other aspect of the relationship between tribal governments and the federal government,” said Sneed. “At that point you’re saying, ‘Well, tribes aren’t really sovereign because there can’t be a separate classification of people known as Indian tribes within this country because that’s unconstitutional, because it’s race-based.’ Everything that we do now where we act as a sovereign could be called into question.”

Tribal sovereignty is alluded to in the Constitution itself, said Sneed. Section eight gives Congress the power to “regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes,” phrasing that points to Indian tribes as political entities.

However, for those who don’t interact with Indian law on a regular basis, it can be a difficult topic to understand, said Sneed. He pointed to occurrences taking place at the national level that could indicate a move toward treating Native Americans as a racial group rather than a political one.

For instance, an April 22 article from Politico reported that the Trump administration has “rebuffed” requests from Indian tribes for exemptions from the new work requirement for Medicaid recipients — several states have been granted such exemptions — because granting exemptions to tribes would amount to racial preference.

“They’re making the same argument as this federal judge that these policy decisions are race-based and the 573 federally recognized tribes are saying, ‘No. The Supreme Court and the U.S. Constitution have deemed us a political group’ … It’s complex,” said Sneed. “Although if you talk to leaders in Indian Country they all understand exactly the ramifications of it.”