5th Circ. Rules Indian Child Welfare Act Constitutional

By Andrew Westney

Law360 (August 9, 2019, 9:31 PM EDT) — The Fifth Circuit on Friday overturned a Texas district judge’s decision that struck down the Indian Child Welfare Act as unconstitutionally race-based, handing a major win to tribes by backing tribal sovereignty and upholding a law tribes contend is vital to sustaining Native families and culture.

The Cherokee NationOneida NationQuinault Indian Nation and Morongo Band and the federal government had asked the circuit court to reverse an October decision by Judge Reed O’Connor that the ICWA — a 41-year-old law that sets federal standards for state cases involving Indian children such as adoption and foster care placement — violates the equal protection clause and other provisions of the Constitution.

In a published opinion Friday, a Fifth Circuit panel thoroughly rejected the district judge’s reasoning, saying that both the ICWA and a related 2016 U.S. Department of the Interior rule complied with the equal protection clause “because they are based on a political classification that is rationally related to the fulfillment of Congress’s unique obligation toward Indians.”

The panel also reversed the lower court’s rulings that the ICWA violated the 10th Amendment’s prohibition on the federal government’s commandeering states by issuing direct orders to them and unconstitutionally delegated Congress’ power by giving tribes the authority to change adoption placement preferences and make states abide by them.

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 said in a statement that the decision “reaffirmed what we already knew: The Indian Child Welfare Act is constitutional and serves the best interests of children and families.”

“Despite the misguided attacks on the law, today’s ruling speaks for itself. ICWA ensures that we have a process in place focusing first and foremost on the welfare and safety of children. This is why so many Americans from across the political spectrum have supported upholding the law,” the tribal leaders added.

Enacted in 1978, ICWA seeks to “protect the best interests of Indian children and to promote the stability and security of Indian tribes and families” by imposing federal standards in state custody cases involving Indian children.

Texas, Louisiana and Indiana sued the federal government alongside Chad and Jennifer Brackeen — a non-Native American couple who fostered a Native American child — and other couples, claiming that ICWA violated the Constitution by using racial preferences in placing Native American children rather than focusing on their best interests.

In a Feb. 6 brief, the states told the Fifth Circuit that Judge O’Connor’s Oct. 4 ruling should stand, saying the law and the DOI rule impermissibly intruded on the states’ authority.

The states said “classifications of Indians, even if based on tribal membership, are still race-based classifications and are subject to strict scrutiny” unless they promote Indian self-governance or serve to directly regulate Indians and their lands, neither of which ICWA does, they argued.

The ICWA can’t survive the strict scrutiny that applies to “a race-based law,” as “there can be no compelling governmental interest in judging a child for purposes of foster or adoptive placement on the basis of the child’s race,” the states said.

In their own briefs, the tribes and the federal government argued that the law should be preserved because it helps satisfy the government’s trust and treaty obligations to tribes by protecting Indian children.

In a separate brief, the Navajo Nation — which was allowed to intervene in the case separately from the other tribes — argued that the ICWA is “fully compatible with equal protection” and that the plaintiffs “misunderstand the nature of classifications based on tribal membership and mischaracterize tribal law itself.”

In Friday’s decision by Circuit Judge James L. Dennis., the Fifth Circuit said the district judge rightly found that the plaintiffs had standing to bring their claims, but reversed his grant of summary judgment to them and handed a win to the federal government and the tribes instead.

The ICWA isn’t subject to strict scrutiny because it’s not race-based, but rather makes a political classification of “Indian child,” the panel said, pointing to the U.S. Supreme Court‘s 1974 decision in Morton v. Mancari, which held that the Bureau of Indian Affairs‘ hiring preference for Native Americans wasn’t unconstitutional because it fulfilled the federal government’s obligations toward them.

The district judge found that the Mancari ruling only applied to Indians living on or near their reservations, but “Mancari’s holding does not rise or fall with the geographical location of the Indians receiving ‘special treatment,’” and “the Supreme Court has long recognized Congress’s broad power to regulate Indians and Indian tribes on and off the reservation,” the panel said.

And while the lower court found that ICWA differed from the statute at issue in the Mancari case because ICWA extended to children who were eligible for tribal membership due to their ancestry, “ICWA’s definition of ‘Indian child’ is not based solely on tribal ancestry or race,” as some children are eligible despite not having Indian ancestry, while “many racially Indian children, such as those belonging to non-federally recognized tribes, do not fall within” the definition, the panel said.

Since it isn’t racially based, rational basis review applies to the ICWA, the panel said.

“Given Congress’s explicit findings and stated objectives in enacting ICWA, we conclude that the special treatment ICWA affords Indian children is rationally tied to Congress’s fulfillment of its unique obligation toward Indian nations and its stated purpose of ‘protect[ing] the best interests of Indian children and promot[ing] the stability and security of Indian tribes,'” according to the opinion.

The law doesn’t violate the anti-commandeering doctrine in the 10th Amendment because the Supremacy Clause of the Constitution requires state courts to enforce the law, the panel said.

In addition, in light of Congress’ authority to regulate Indian child welfare proceedings, the federal ICWA preempts state law, the panel said.

And ICWA doesn’t unconstitutionally delegate Congress’ power to tribes, the panel said, but is instead “an incorporation of inherent tribal authority by Congress.”

National Congress of American Indians CEO Kevin Allis said in a statement Friday  that the decision “clearly defines the breadth of the relationship between the federal government and tribal nations [and] sends a sharp message as to the strength of tribal sovereignty, which will safeguard Indian Country from such misguided litigation in the future.”

And National Indian Child Welfare Association executive director Sarah Kastelic said that the ruling is “a strong affirmation of the constitutionality of ICWA and the inherent tribal authority to make decisions about the well-being of member children, whether they live on or off of tribal lands.”

Navajo Nation President Jonathan Nez said in a statement Friday that the tribe was “particularly pleased” that the decision specifically addressed its arguments that its own statute for membership enrollment was politically rather than racially based.

“The Fifth Circuit has affirmed the long-standing fundamental principle of Indian law that tribes are political sovereigns, not racial groups, and therefore Congress appropriately passes legislation like ICWA under its trust responsibility to recognize the important role the Nation plays in the lives of all Navajo children,” Nez said in the statement.

Representatives for the other parties were not immediately available for comment Friday.

Circuit Judges Jacques L. Wiener Jr., James L. Dennis and Priscilla R. Owen sat on the panel for the Fifth Circuit.

The states are represented by their attorneys general.

The couples are represented by Matthew D. McGill, Lochlan F. Shelfer and T. Elliot Gaiser of Gibson Dunn & Crutcher LLP, and Mark Fiddler of Fiddler Osband LLC.

The federal defendants are represented by Jeffrey Bossert Clark, Eric Grant, William B. Lazarus and Rachel Heron of the U.S. Department of Justice‘s Environment and Natural Resources Division.

The Cherokee Nation, Oneida Nation, Quinault Indian Nation and Morongo Band of Mission Indians are represented by Adam H. Charnes, Keith M. Harper, Venus McGhee Prince and Thurston H. Webb of Kilpatrick Townsend & Stockton LLP, and Kathryn E. Fort of the Michigan State University College of Law.

The Navajo Nation is represented by Colleen E. Roh Sinzdak, Thomas P. Schmidt, Maria Wyckoff Boyce and Catherine E. Bratic of Hogan Lovells, and Attorney General Doreen McPaul, Paul Spruhan and Kandis Martine of the Navajo Nation Department of Justice.

The case is Brackeen et al. v. Zinke et al., case number 18-11479, in the U.S. Court of Appeals for the Fifth Circuit.

–Additional reporting by Shayna Posses and Adam Lidgett. Editing by Peter Rozovsky.