Indian Child Welfare Act Found Unconstitutional
Share us on: By Andrew Westney
Law360 (October 5, 2018, 7:40 PM EDT) — A federal judge has handed Texas, two other states and several foster families a quick win on most of their claims in a suit challenging the Indian Child Welfare Act, ruling that the law is race-based and unconstitutionally gives tribes too much power over states to decide how to implement it in adoption and custody cases.
Texas, Louisiana and Indiana brought suit against the federal government alongside Chad and Jennifer Brackeen, a non-Native American couple who fostered a Native American child, and others seeking to strike down ICWA, claiming that the law violated the U.S. Constitution by using racial preferences in placing Native American children rather than focusing on the best interest of the child.
U.S. District Judge Reed O’Connor on Thursday granted summary judgment to the states and individual plaintiffs Thursday on all their claims except a due process claim brought by the individuals, rejecting the federal government’s argument that ICWA classifies Native Americans politically rather than racially.
“Given the ICWA is a race-based statute, the government has failed to meet its burden to show the challenged statute is narrowly tailored to a compelling interest,” Judge O’Connor said. “Because the government did not prove — or attempt to prove — why the ICWA survives strict scrutiny, it has not carried its burden to defend the ICWA and plaintiffs are entitled to judgment as a matter of law on their equal protection claim.”
ICWA also violates the Tenth Amendment’s prohibition on the federal government issuing direct orders to states and unconstitutionally delegates Congress’s power by giving tribes the authority to change adoption placement preferences and make states abide by them, the judge said.
“No matter how defendants characterize Indian tribes — whether as quasi-sovereigns or domestic dependent nations — the Constitution does not permit Indian tribes to exercise federal legislative or executive regulatory power over non-tribal persons on non-tribal land,” the judge said.
The leaders of the Cherokee Nation, Oneida Nation, Quinault Indian Nation and Morongo Band of Mission Indians, which intervened in the case alongside the federal government to protect ICWA, said in a joint statement Friday that they were “deeply disappointed” with the ruling but that it was “one part of a long process.”
“We remain steadfast in our commitment to defend the constitutionality of ICWA by all available means for one simple reason: If ICWA is struck down in whole or in part, the victims will be our children and our families, Native children and Native families,” according to the 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.
Texas attorney general Ken Paxton said in a statement Thursday that the decision “protects the best interest of Texas children,” since ICWA “coerces state agencies and courts to carry out unconstitutional and illegal federal policy, and decide custody based on race.”
Lochlan F. Shelfer of Gibson Dunn & Crutcher LLP, which represents the individual plaintiffs, said in a statement Friday that the firm was “very deeply gratified” by the decision.
“For too long, ICWA has segregated Indian children into patently discriminatory child-custody proceedings that look primarily to the race of foster and adoptive parents rather than the best interests of those children,” Shelfer said in the statement. “We hope those days soon will be at an end and that Congress then look to ways to strengthen Indian families without sacrificing the best interests of children.”
Timothy Sandefur, vice president for litigation at the nonprofit Goldwater Institute, which submitted an amicus brief supporting the plaintiffs, said in a statement Thursday that the ruling was “a great victory for the rights of Native American children throughout the United States, who deserve the same strong protections against abuse and neglect as their peers of other races.”
Enacted in 1978, the Indian Child Welfare Act 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 for state child custody cases involving Indian children, such as adoption and foster care placement, seeking to stem the flow of children being taken out of tribal communities for adoption.
In their complaint, the Brackeens said a Texas family court refused their petition to adopt a Native American child known as A.L.M., saying that the court pushed to remove A.L.M. from their home to live with a Native American family he did not know in New Mexico in order to comply with ICWA.
In July, Judge O’Connor denied bids by the intervenor tribes to toss the suit, finding that, among other things, the individual people who brought the suit “met the constitutional and prudential standing requirements to bring their claims.”
In his ruling Thursday, the judge said that ICWA’s definition of an Indian child as a member of a tribe or a child eligible for tribal membership and with a biological Indian parent must be subjected to strict scrutiny because “by deferring to tribal membership eligibility standards based on ancestry, rather than actual tribal affiliation, the ICWA’s jurisdictional definition of ‘Indian children’ uses ancestry as a proxy for race.”
But the law doesn’t survive that strict analysis because it isn’t narrowly enough tailored and doesn’t support a compelling governmental interest, according to the opinion.
And ICWA and the regulations to implement it violate the “anti-commandeering” provision of the Tenth Amendment because the law “directly requires states to adopt and administer comprehensive federal standards in state created causes of action,” and the power Congress has to act in tribal matters under the Indian Commerce Clause doesn’t overcome that problem, the judge said.
Representatives for the Navajo Nation, which also intervened in the case, and the federal government were not immediately available for comment Friday.
The states are represented by their respective attorneys general.
The individual plaintiffs are represented by Matthew D. McGill, Lochlan F. Shelfer and David W. Casazza of Gibson Dunn & Crutcher LLP and Mark Fiddler of Fiddler Law Office PA.
The federal defendants are represented by Jeffrey H. Wood, Samuel C. Alexander, JoAnn Kintz, Steven Miskinis, Christine Ennis, Ragu-Jara “Juge” Gregg, Amber Blaha and John Turner of the U.S. Department of Justice‘s Environment and Natural Resources Division and Sam Ennis of the U.S. Department of the Interior.
The Cherokee Nation, Oneida Nation, Quinault Indian Nation and Morongo Band of Mission Indians are represented by Adam H. Charnes, Christin J. Jones, 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 case is Brackeen et al. v. Zinke et al., case number 4:17-cv-00868, in the U.S. District Court for the Northern District of Texas.
–Additional reporting by Adam Lidgett. Editing by Bruce Goldman.