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A lawsuit challenging the Indian Child Welfare Act received a split decision in federal appeals court
on April 6, 2021. The law, the lawsuit and the split resulted in a
300-plus-page decision that confounded experts and lay people alike. The
decision won’t impact Alaska directly. But legal experts say Alaska
should still keep an eye on the case.
The Indian Child Welfare
Act, or ICWA, basically provides Tribes with an opportunity to intervene
when state child welfare and adoption agencies consider whether or not
to remove a Native child from a home. The children can be enrolled
citizens of the Tribe or be eligible for membership status.
Alaska
Native Justice Center policy director Alex Cleghorn says ICWA was
passed in 1978 in response to the disproportionate removal of Native
children from their homes, families and communities.
“They were
primarily being placed in the homes of non-Native people and growing up
without a connection to their culture or to the communities,” said
Cleghorn, who worked as a Tribal attorney for much of his career, is a
citizen of Tangirnaq Native Village and serves on the board of directors
for Koniag Incorporated regional Native corporation. “I believe the
Alaska Native culture is something that is a strength."
The
Alaska Native Justice Center is an advocacy organization that provides
Alaska Native people with direct services in education, victim advocacy,
Tribal court assistance and more.
(Disclosure: The Alaska Native Justice Center, KNBA and Koahnic Broadcast Corporation are tenants of Cook Inlet Tribal Council.)
What is now Brackeen v. Haaland began in 2018 as a lawsuit in Texas that challenges ICWA. The lawsuit says the federal law discriminates against non-Native families looking to adopt.
“They
seem to believe that being a Native person is solely a racial
classification, which ignores many years of precedent and legal rulings
that as a Native person, our relationship with our Tribe is that of a
citizen who works in government.”
Erin Dougherty Lynch is a staff
attorney at Native American Rights Fund, a nonprofit legal organization
that holds the U.S. governement to its treaty obligations with Tribes
as well as laws that affect Native people. Lynch works on a variety of
federal Native issues including Tribal jurisdiction, sovereignty – and
child welfare.
She says the plaintiffs in the Brackeen case argue
that ICWA is a law based on race: “That it's a race-based law that
provides preference to extra services to Native children, to provide
preferences to Native families, which should be struck down by the
Supreme Court on an equal protection ground.”
But Lynch says
ICWA, along with the bulk of federal Indian policy, is grounded in a
political relationship between governments – between federal and Tribal
governments, and between Tribes and their citizens.
ICWA is a
federal law that establishes a floor-level basis for reviewing Native
child adoption cases. Some states passed their own ICWA laws, but those
laws must offer additional benefits – not change or remove the
application of federal law: “States can never do less than what's in the
federal law, but they can always do more,” Lynch says.
For example, Washington state has its own ICWA law.
Alaska does not have a state ICWA law. In 2017, then-Governor
Bill Walker’s administration championed and signed a child welfare
compact between the state and many Alaska Tribes.
“(Compacts
are) another kind of tool that we've had in Alaska where Tribes are
working, have compacted on a government-to-government relationship with
the state government and with the goal of providing more culturally
appropriate services to children in the state's child welfare system.”
Tribal
leaders often testify at Alaska Legislature hearings that Alaska Native
children are over-represented in the foster care system.
According
to the Alaska Tribal Child Welfare Compact (2017), even though Alaska
Natives represent less than 20 percent of children in the state, they
make up more than half the children placed in foster care.
Cleghorn says the Brackeen case illustrates that more states should be looking at state-based ICWA protections.
“If
the federal law is going to continue to be under attack, it may be time
to look at a state equivalent to ensure that we continue to recognize
Tribes recognized as the gold standard in child welfare and protection,
and that those protective factors of having children connected to their
culture, the Tribes and their families are important and should be
enshrined in law.”
The Brackeen lawsuit worked its way to the
United States Court of Appeals for the Fifth Circuit, which covers the
federal judicial district in Louisiana, Mississippi, and Texas.
A
three-member judges panel heard the case and upheld the
constitutionality of ICWA, but with partial dissent. That allowed the
plaintiffs to request and receive a full bench – or en banc – decision.
Sixteen
judges split down the middle and wrote a 325-page decision. Because of
the split, Lynch says the decision largely impacts cases in that
district’s region – and wouldn’t affect Alaska directly.
Alaska
Native Justice Center policy director Cleghorn is also confident the
split decision should not impact ICWA cases in Alaska or in states that
are outside of the Fifth Circuit.
“I also think it's important to
keep our eyes open for those of us who do work in this area and
represent Tribes in this area, because sometimes there are misguided
attempts to import reasoning or to import reasoning or decisions that
may not apply,” Cleghorn said.
For now, legal experts and Tribes will keep an eye on the Brackeen case, and will be on the lookout for others, Lynch said.
"Certainly,
if the case ends up going up before the United States Supreme Court,
what the Supreme Court determines will have an effect in Alaska. But
right now, you know, state and Tribal child welfare workers who are
involved in state child welfare cases don't have to worry about this
opinion."
But Lynch says it is possible that Alaska Native children living in the Fifth Circuit could be affected.
“When
you start talking about places that are in states that are in the Fifth
Circuit, like Texas and Louisiana and Mississippi, then the whether the
case applies is a maybe,” Lynch said. “Which I know might be sort of
unsatisfying, but there are sort of these general principles that
federal courts don't necessarily tell state courts what to do. And so it
sort of depends state-to- state as to whether or not this is going to
have precedential effect in the Fifth Circuit. But for our purposes in
Alaska, we we can ignore this decision for now.”
The legal
experts and attorneys following the case worked to unravel its many
threads and how each one would impact ICWA or their understanding of the
case and law.
“It definitely took us a few days to sit down and,
like, sort it all out,” Lynch said. “We literally had to map out every
issue that had been brought up in the case and then sit down and go
through all of the opinions and see how folks had come down. I know the
court in those first few pages did issue like a per curiam opinion where
they tried to give a synopsis of where the whole thing had come down.
But you still really have to sit down and go through it all. And it's
complicated for the lawyers.”
The Native American Rights Fund helped publish a one-sheet flow chart to help people determine whether the decision impacts their case.
"I
guess my takeaway is that the worst did not happen, which is good,"
Lynch said. "But there are still pieces of this opinion that are not
great."
Source: Federal ICWA lawsuit remains a case to watch despite split decision in 5th Circuit Court of Appeals
READ MORE:
The ICWA Law Center provides legal services and advocacy to Indian families impacted by the child protection system. ICWA Law Center Suite 104 1730 Clifton Place Minneapolis, MN 55403. Telephone: 612-879-9165 Fax: 612-879-0323 E-mail: info@icwlc.org.
Six states
(Iowa, Michigan, Minnesota, Nebraska, Oklahoma and Washington) have
enacted their own Indian Child Welfare Act, adopting provisions from the
federal ICWA in whole or in part. Other states have adopted some provisions, most commonly, the definition of "Indian child" and the notification requirements.
The Indian Child Welfare Act passed into law in 1978. The law protects American Indian and Alaska Native (AI/AN) children in state child welfare systems and helps them remain connected to their families, cultures, and communities.
