The 5th U.S. Circuit Court of Appeals heard oral arguments March 13 for the Brackeen v. Bernhardt case. The plaintiffs, who won at the district court level in Texas, argue the Indian Child Welfare Act is unconstitutional because it’s a race-based law and it violates the equal protection clause. A three-judge panel is considering the appeal.
“There is broad, bipartisan support against this misguided attack on a law that is crucial for protecting the wellbeing of Indian children and Indian sovereignty,” according to a joint statement by the Cherokee Nation, Morongo Band of Mission Indians, Navajo Nation, Oneida Nation, and Quinault Indian Nation. “The Trump administration has also reiterated its support for ICWA, tribal sovereignty and the safety of Indian children.”
Many Native nations and tribal organizations say this case goes against tribal sovereignty and that ICWA isn’t a race-based law because tribes are sovereign nations that work with the U.S. government on a nation-to-nation basis.
A total of 325 tribal nations, 57 Native organizations, 21 states, 31 child welfare organizations, 7 members of Congress, and dozens of scholars of federal Indian law and constitutional law supported ICWA through amicus briefs.
The hearing lasted about an hour and a half. The judges made few statements during the proceedings.
The Associated Press quoted Judge Priscilla Owens telling the attorney for the state of Texas: "You used the words 'your children.’ They are not 'your children.' They are the children of the tribes."
Judge Jacques L. Wiener Jr. the law “definitely protects the culture of Indians."
According to a press release by the National Congress of American Indians, the three judge appeals panel heard “oral arguments in the case this morning on behalf of two federal agencies—the Departments of the Interior and of Health and Human Services—and five tribal nations—Cherokee Nation, Morongo Band of Mission Indians, Navajo Nation, Oneida Nation, and Quinault Indian Nation.”
One of those tribes, the Cherokee Nation said on Twitter if the law’s “opponents in Brackeen v. Bernhardt are successful, it will potentially impact the sovereignty of every tribe, because the plaintiffs view tribes as racial entities, not sovereign governments.”
That distinction is at the center of this case.
Randall Akee, an associate professor at University of California Los Angeles, stated in an article for the Brookings Institute that protecting the welfare of tribal citizens falls under tribal sovereignty. “Tribal citizenship enrollment and eligibility is based on tribal government rules which are often specific to a particular tribe and may require showing direct lineal descent from certain enrolled ancestors; there may be other additional conditions for tribal citizenship such as a minimum blood quantum, residency requirement or demonstrated relationship with the community.”
The Indian Child Welfare Act was enacted in 1978 when Native American children were being forcibly removed from their homes and placed into foster care. From 1969 to 1974 a third of all Native children were placed into state care and 85 percent of them were sent to non-Native homes.
To this day, Native children are still disproportionately represented in the foster care system.
“One study found that, due in large part to systematic bias, where abuse has been reported AI/AN children are 2 times more likely to be investigated, 2 times more likely to have allegations of abuse substantiated, and 4 times more likely to be placed in foster care than White children,” according to the National Indian Welfare Association.
On Twitter, Manilan Houle, who benefitted from the law, wrote “ICWA ensured that I was not ripped from my school when I was placed in foster care. When other social workers were failing ICWA allowed my Tribe to step up and advocate for me. Children going through social services need more advocates who are on their side.”
Houle later added, “When in foster care my foster parents brought me (wild) ricing. And the community embraced me with open arms. I grew up urban, disconnected from traditional ways. The Native community wrapped its arms around me and showed me another way.”
The law was enacted to keep Native children in their communities. One of the reasons children were removed was because of “perceived poverty.”
“One of the aims of the Indian Child Welfare Act of 1978 was to stop the removal of American Indian children from their households due to poverty,” Akee wrote. “In certain American Indian communities, for instance, hunting, trapping, fishing and other subsistence activities are important parts of the economic and social interactions of community members. These activities do not show up directly as cash income nor are they identified as federal government in-kind transfers.”
For these reasons, the household income of a family might look lower.
“Assessing economic conditions may also be quite difficult for individuals who are unfamiliar with American Indian communities and practices,” Akee stated. “There are important culturally-specific safety nets that exist in many American Indian communities; most of which would be unknown to outsiders.”
There are also cultural practices that non-Natives don’t understand like having children live with extended family, such as grandparents, when parents leave for seasonal work. This to the state may look like neglect or abandonment. But to Akee, it’s a primary reason why the welfare act is so important for Native communities and culture.
Pauly Denetclaw, Diné, is a fellow with Indian Country Today. She is a staff reporter for the Navajo Times. Her work is supported by a grant from the Bay and Paul Foundations.
The National Congress of American Indians is the owner of Indian Country Today and manages its business operations. The Indian Country Today editorial team operates independently as a digital journalism enterprise.