A three-judge panel on Wednesday considered whether to reverse a ruling that struck down a decades-old law designed to protect the interests of Native American children in custody proceedings.
The lower court ruling, a summary judgment issued last October by U.S. District Judge Reed O’Connor of Fort Worth, declared the Indian Child Welfare Act unconstitutional. The law, passed by Congress in the late 1970s, gives Native American families preference for foster care and adoption proceedings that involve Native American children. If upheld on appeal, according to some legal experts, the ruling will drastically change the course of the adoption process for Native American children.
Judge O’Connor sided with a group of individual plaintiffs and state governments that argued the law violated the Fifth Amendment’s guarantee of equal protection – essentially, they argue, it’s racial segregation.
The case pits a group of non-Native families who have fostered or adopted Indian children – as well as the States of Texas, Louisiana and Indiana – against the federal government and a group of five Indian tribes.
It’s a case that has attracted national interest in which much is at stake for both sides. According to lawyers familiar with the litigation, it will almost certainly be appealed to the U.S. Supreme Court by the losing side.
On Wednesday, lawyers for the tribes and the federal government argued that undoing the ICWA would also undo decades of improvement in the lives of Indian children who have been able to maintain relationships with their families, tribes and communities.
“The district court invalidated a 40-year-old federal law that Congress enacted pursuant to its centuries-old trust obligations to American Indians to remedy the tragedy of state and private social workers removing upwards of one-third of all Indian children from their families, their communities and their tribes,” argued Dallas appellate lawyer Adam Charnes, who represents four of the Indian tribes.
“Indeed, the expansive holding that [the plaintiffs] request would rewrite federal Indian law, overturning doctrines accepted in some circumstances for nearly two centuries,” added Charnes, a partner at Kilpatrick Townsend. “This court should reject those arguments and should reverse the judgment below.”
But Gibson Dunn partner Matthew McGill, who represents the individual plaintiffs, told the panel that the federal statute, however well-intentioned, does more harm than good, therefore the panel should affirm Judge O’Connor’s ruling.
“My clients opened their hearts and their homes to a child in need and embraced that child as a part of their family,” said McGill, a partner in Gibson Dunn’s Washington, D.C. office. “They are here today because the ICWA turned their lives and their families upside down, solely because the children they took in were Indian children.”
Two of McGill’s clients are Texas residents Chad and Jessica Brackeen, the original plaintiffs in the litigation. The Brackeens filed the lawsuit in December 2017 after a Fort Worth family court struck down their petition to adopt a Native American child that they had been fostering. The couple has since successfully adopted the child, only identified in court documents as A.L.M., but they are now trying to adopt A.L.M.’s half-sister. Families from Nevada and Minnesota later joined the lawsuit.
He said the family of another pair of his clients, Jason and Danielle Clifford, “was literally torn apart” as their Native American foster child “was pried away from them, crying uncontrollably.”
He said the Brackeens “narrowly avoided a similar fate.”
“Only an emergency stay prevented A.LM. from being transferred to strangers in Mexico,” McGill added.
Charnes said that the Brackeens’ “continuing injury” claim for A.L.M. is moot because he was adopted in January 2018 – two months before they filed their amended complaint. He also pointed out that one of the tribes that A.L.M. is a member of, Navajo Nation, has said in its own briefs that “they will not attack that adoption. And there’s no indication in the record that anyone else will either.”
But McGill countered that certain clauses in the ICWA don’t make A.L.M.’s adoption final.
“It is true that there is no pending collateral attack, but it is also true that the birth father of A.L.M. could show up any day and mount a collateral attack within the two-year window,” McGill argued.
The heart of the appeal centers around whether the foundation of ICWA is racial or political. The plaintiffs argue it’s racial, while the tribes and federal government argue it is political.
U.S. Deputy Assistant Attorney General Eric Grant argued that in the plaintiffs’ briefs, they misinterpret Morton v. Mancari, a 1974 U.S. Supreme Court decision holding that the Bureau of Indian Affairs’ preference to hire Indian employees over non-Indians did not violate the due process clause of the Fifth Amendment. The BIA considered a member of a federally-recognized tribe as someone with one-fourth or more degree Indian blood.
Under Mancari, a case involving employment preferences in the Bureau of Indian Affairs, all tribal classifications are political – not racial – and the “rational standard” applies, the government argues, because the preference for members of federally-recognized tribes dates back to their affiliation with quasi-sovereign tribal entities that have a long history of treaties with Congress.
The plaintiffs disagree, arguing that Mancari’s application of ICWA became moot after a 2013 Supreme Court decision, Adoptive Couple v. Baby Girl narrowed its application.
But during Wednesday’s oral arguments, Grant didn’t see it that way. He said the plaintiffs were overinterpreting The Adoptive Couple case, which prohibited a Cherokee non-custodial father from blocking a legal adoption through the ICWA. To imply that the case overturned Mancari, Grant said was “untenable to the extreme.”
Wednesday’s oral arguments featured a nod to the centuries-old constitutional tug-of-war between states’ rights and the federal government.
“The federal government may not command state officials to carry out a federal regulatory program, yet that is exactly what ICWA does,” Texas Solicitor General Kyle Hawkins argued for the state.”
“It is not commandeering for Congress to prescribe that the state judges must apply federal statutes… its’ preemption,” Grant argued for the federal government. “It’s authorized by the supremacy clause by which we’re all familiar.”
Hawkins also argued that Congress can’t delegate the Indian tribes to have authority over non-tribal members outside of the reservations.
“If Congress passed a law giving the Mexican government power to regulate divorce proceedings in Orleans Parish, it would be laughed out of court,” he said. “It would be struck down in an instant as unconstitutional. ICWA is the same in every way that matters. Congress cannot give tribes the power to bind state courts outside reservations dealing with non-tribal members.”
The Fifth Circuit panel, which included Judges Priscilla Owen, James Dennis and Jacques Wiener, only interrupted the lawyers occasionally with questions, but did appear to intervene more during the plaintiffs’ arguments.
When Hawkins brought up a previous U.S. Supreme Court decision that established “the protection of our children is among the highest orders of a state’s interest,” Judge Owen interrupted.
“You use the word, ‘your’ children… They’re not your children necessarily. If they’re members of the tribe, they’re the tribe’s children before they’re your children.”
Enacted in 1978, ICWA laid out minimum federal standards, applicable in state courts, for the removal of Indian children from their families. It was introduced to the floor in 1977 by then-Sen. James Abourezk (D-S.D.) to make amends for the decades-old court-authorized policy of forcing Native American children into assimilation with white families, a practice perceived at the time in the children’s best interest.
Before the law passed in 1978, roughly one-third of all Native American children were being removed from their families – sometimes forcibly – for placement in foster homes that had no Indian culture whatsoever. Tribal advocates say this led to Native American children making up the majority demographic of kids in states’ broken foster care systems.
The tribes involved in the litigation are Cherokee Nation, Oneida Nation, Quinault Indian Nation, Morongo Band of Mission Indians and Navajo Nation. Charnes argued on behalf of all but the Navajo Nation.
The Fifth Circuit authorized Navajo Nation to take part in the appeal, but it did not participate in Wednesday’s oral arguments. At the trial level, the Navajo tribe intervened later in the litigation, but Judge O’Connor denied admission of Navajo Nation as a party, ruling that its interests were already represented by the other tribal parties. Navajo Nation asked again and Judge O’Connor put off making a decision until there is an outcome in the Fifth Circuit.
Maria Wyckoff Boyce of Hogan Lovells is the lead lawyer for Navajo Nation at the trial level.
The case number in the trial court is 4:17-cv-00868-O in the U.S. District Court for the Northern District of Texas, Fort Worth Division.
The case number in the U.S. Court of Appeals for the Fifth Circuit is 18-11479.