Law was designed to give Native children “equal rights and human rights”

A defending argument for the Indian Child Welfare Act was released last week with widespread support from 325 tribes, 57 organizations, 31 child welfare organizations and seven members of Congress.

The legal brief asks the 5th U.S. Circuit Court of Appeals, a higher court, to look at the Brackeen v. Zinke decision of a lower court, the Northern District of Texas.

U.S. District Judge Reed O’Connor said last October that the federal law was a “race-based statute” that violated the Equal Protection Clause and therefore was “unconstitutional.”

Texas and other opponents of the act claim they want “to protect the equal rights of American Indian children, said Shannon Keller O’Loughlin, executive director of the Association on American Indian Affairs.

She adds that they do not realize the welfare act for Native children is “equal rights and human rights legislation” and it was “meant to provide protections against this systemic bias and reduce the overrepresentation of Indian children into these systems.”

“Statistics show that state systems continue to remove Indian children from their families at greater rates than white children, even though incidents of neglect or abuse are similar,” she said. “Current studies that have researched systemic bias in the child welfare system have found that Indian families were two times more likely to be investigated and four times more likely to have their children removed and placed in foster care than their white counterparts.”

The case’s decision derived from when the Brackeen family, a non-Native couple, wanted to adopt a Native child. They were successful.

Following the October decision came the support from the Department of Justice. The department gave notice of an appeal on Nov. 30.

Within the week, the four tribes that intervened and joined the case — the Cherokee Nation, the Morongo Band of Mission Indians, the Oneida Nation and the Quinault Indian Nation — received word about a granted stay.

This meant that the Indian Child Welfare Act remains the law of the land.

The 40-year-old act gives priority to the biological family of the Native American child, members of the child’s tribes or other Native families when the Native child is placed in “foster or adoptive homes.”

The stay will remain in full force until the summer when a final decision is released by the fifth circuit, said Erin Dougherty Lynch, senior staff attorney at the Native American Rights Fund.

“The stay is in place,” she said. “No one in the state of Texas should not be implementing that decision.”

The National Congress of American Indians was overwhelmed by the amount of support from tribes and organizations as they said in their joint statement with the National Indian Child Welfare Association, the Association on American Indian Affairs and the Native American Rights Fund.

“The National Congress of American Indians is moved by the overwhelming support to uphold the Indian Child Welfare Act, which protects the best interests of American Indian and Alaska Native children. Tribal nations know, firsthand, the positive impact, the certainty, and stability that ICWA provides to our children in state-based child welfare systems,” said Jefferson Keel, president of the Congress. “Bottom line, ICWA works and the Fifth Circuit Court of Appeals should overturn the erroneous district court decision and support American Indian and Alaska Native children and families because it’s the right thing to do.”

That support also comes from seven members of U.S. Congress which include Sen. Tom Udall of New Mexico, Sen. Lisa Murkowski of Alaska, Rep. Don Bacon of Nebraska, Rep. Karen Bass of California, Rep. Tom Cole of Oklahoma, Rep. Betty McCollum of Minnesota and former Rep. Don Young of Alaska.

Young, who served in Congress since 1973, has defended the act since he’s been in Congress.

“I worked with former Representative Mo Udall to pass the Indian Child Welfare Act in 1978 and have defended it during my time in Congress,” he said. “The District Court’s decision was based on a flawed assessment of ICWA and a lack of understanding of the federal government’s trust relationship with Alaska Natives and American Indians. As a supporter of ICWA from its inception, I am proud to join this friend of the court brief that explains the legal principles behind the original Congressional intent of the legislation. ICWA remains critical for protecting Native children and preventing the loss of Native communities.”

Part of that “loss of Native communities” is a child’s identity, culture and family.

Many child welfare organizations refer to the act as a ‘gold standard’ for child welfare, according to the National Indian Child Welfare Association.

“The Indian Child Welfare Act (ICWA) is child welfare best practice. Thirty-one leading child welfare organizations stated that ICWA serves the best interest of Native children and families with their declaration that ICWA is the ‘gold standard’ of child welfare policy,” said Sarah Kastelic, executive director of the association. “As experts in research, education, advocacy, and providing services related to child welfare, adoption, and court-system reform, these organizations know that ICWA ensures all children and families receive the protections they deserve and that all children fare better when placed with family.”

And Udall, who sits as the vice chairman on the Senate Committee on Indian Affairs, agrees that children need to be with family.

“Congress wrote the Indian Child Welfare Act over 40 years ago in recognition of the fact that Native American children – like all children – thrive when they are able to grow up with the support of their families, communities, and cultures,” Udall said. “The Northern District of Texas’s ICWA ruling improperly constrains Congress’s constitutional authorities while ignoring decades of Supreme Court precedents. Most concerning of all, it threatens the wellbeing of Native communities and, if allowed to stand, would deny Native children critical protections that enforce best practices in child welfare systems. I’m proud to have worked with Senator Murkowski and my colleagues in the House to support ICWA and challenge this dangerous decision.”

What’s next?

The plaintiffs, or appellees, have until Feb. 6 to file their argument.

The United States and tribes, known as the appellants in law, have until Feb. 19 to reply.

An oral argument in court is tentatively scheduled for March.


This article originally appeared on Indian Country Today.


Jourdan Bennett-Begaye

Indian Country Today

Jourdan Bennett-Begaye is a Diné citizen and identifies as Kiyaa’áanii (The Towering House Clan), Mą’ii deeshgiizhinii (The Coyote Pass Clan of Jemez), Naakai dine’é (The Mexican Clan), and Ozei Táchii’nii (The Hopi with Red Running Into the Water Clan). She completed the Newhouse Minorities Fellowship at the S.I. Newhouse School of Public Communications at Syracuse University in New York. The fellowship allowed her to obtain a master’s degree in magazine, newspaper and online journalism. Before the career change, she obtained a bachelor’s degree in Athletic Training at Fort Lewis College and played collegiate volleyball. Her love for dance and working with Indigenous youth led to co-founding the Survival of the First Voices Festival. After Syracuse, she taught journalism, video production, and theatre at her alma mater, Kirtland Central High School, in New Mexico. She’s written for Native Peoples Magazine, Fan First, MediaShift, The Daily Times, NAJA’s Native Voices News, NPR’s NextGen Radio Project, and Post-Standard. 


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