After a U.S. District Court declares ICWA unconstitutional and denies a motion, tribes take appeal to the Fifth Circuit

After a federal judge declared the Indian Child Welfare Act (ICWA) unconstitutional last month, tribes defending the landmark legislation have filed an appeal. Now the Fifth Circuit Court will not only rule on the constitutionality of ICWA, but more immediately decide whether or not the law will still apply in Northern Texas during the appeal process.

The Indian Child Welfare Act was created in 1978 to address an epidemic of predatory adoption of Indian children and prioritizes placing Native children with their family, their tribe or in another Native home.

In Brackeen v Zinke, Judge O’Conner ruled that the Indian Child Welfare Act is unconstitutional and violates the 14th amendment by treating Native children differently based on race. ICWA and Native advocates have long declared that the protections of ICWA are based on the political status of Native Americans as tribal citizens, not race. Judge O’Conner also opined that ICWA violates the 10th amendment by “commandeering” state courts to enforce a federal law.

The decision impacts Indian children living in the district of Northern Texas, which covers most of the state North of Interstate 20, including Dallas. Intervening tribes of Cherokee Nation, Morongo Band of Mission Indians, Oneida Nation, and Quinault Indian Nation immediately filed a motion to stay, which, if granted, would mean ICWA would continue to be followed in the affected area while the case is under appeal.

On October 29, The U.S. District Court of Northern Texas denied their motion to stay and on November 19, the intervening tribes appealed both the stay and the original decision to the Fifth Circuit Court. The United States government, the named defendant in the case, has yet to take any action.

Texas shares its Northern border with Oklahoma, the state with the second highest population of Native Americans in the U.S. and home to 39 tribes. Texas currently has 52 Cherokee Nation children in state custody and is a state with “one of the highest incidents of ICWA cases for the tribe outside of Oklahoma” according to Cherokee Nation Deputy Attorney General Chrissy Nimmo.

According to Nimmo, Cherokee, a lapse in the application of ICWA “risks real injury to tribes and to Native children” who could see adoption decisions disrupted or even reversed base upon the outcome of the appeal.

Texas is arguing the case should apply to the entire state — not just the Northern District. In October, Texas Assistant Attorney General Jeffrey Mateer sent a letter to the Texas Department of Family and Protection Services Asst. Attorney General Mateer telling staff to prepare for ICWA to be void in the entire stay, pending Fifth Circuit ruling. Under Attorney General Paxton, Texas became a party to the case, arguing ICWA infringes on the state’s rights.

The wording of O’Conner’s decision did not specify the affected geographical area, and according to Nicole Adams (Colville) of the Partnership to Protect Native Children “the narrow interpretation of the decision is that the District of the Court is the only geographical area where the decision applies.” She adds, “it is irresponsible of Texas to issue that [letter] when the outcome of the case has not been determined.”

Even with ICWA in place, Native children are still over-represented in state child welfare systems. Annually, the Cherokee Nation intervenes in state court on behalf of 1,300-1,500 of their children in foster care. In South Dakota, Native Americans are less than 15 percent of the state’s population, but Native kids represent 50 percent of all children in foster care, with almost 90 percent of them being raised in non-Native homes. In Minnesota, Natives Americans are only 1.4 percent of the population, but Native kids represent 23.9 percent of the kids in the state foster care system.

This fall marked the 40th anniversary of ICWA. When the law was created in 1978, Congress recognized that 1 in 3 Native children had been adopted out of their homes and raised by non-Native families. Today, ICWA is a tool for tribes to keep Native children with their families, tribe, and culture. All children have better outcomes when they are adopted by family or community members and ICWA has been praised as the Gold Standard for child welfare policy.

This year also marked the fifth anniversary of the Supreme Court Case Adoptive Couple vs Baby Girl, after which a Cherokee child was permanently placed with non-Native parents. While the decision left ICWA standing, the Supreme Court victory emboldened anti-ICWA advocates. Since 2013, an odd coalition of conservatives — made up of the for-profit adoption industry, Christian groups, and the Goldwater Institute — has relentlessly brought legislation to federal courts across the country with the clear intent of getting ICWA declared unconstitutional.

Judge O’Conner’s decision was the first time their fringe legal arguments won.

The current appeal and motion to stay before the Fifth Circuit is one step in what is likely to be a years-long legal battle. Even if Judge O’Conner’s decision is overruled, it is unlikely other attacks on ICWA will stop. “The decision will likely embolden anti-ICWA advocates,” says Adams. “This is a marathon, not a sprint.”

If Adams’s predictions are correct, tribes are likely to be defending ICWA from similar attacks for years to come.

Rebecca Nagle is a writer, advocate, and citizen of Cherokee Nation. Follow her on Twitter at@RebeccaNagle