By Taylor Jones
Associate Editor, Vol. 24
On October 4, 2018, the Northern Federal District Court of Texas held the Indian Child Welfare Act (ICWA) to be unconstitutional. Since that decision, Cherokee Nation, Navajo Nation, and other tribes are seeking to have the Fifth Circuit Court of Appeals overturn the decision. Enacted as a response to abhorrent mistreatment and racism against Native children and families in the foster care and child welfare system, ICWA is a critical act that protects the best interests of Native children. In the absence of ICWA Native people are left vulnerable to the previous maltreatment and abuses at the hands of state governments.
Throughout American history Native American people have been abused and mistreated by the federal and state governments. ICWA was enacted in 1978 as a response to a crisis that Native people have endured for centuries: Native children being separated from their families and tribes by state child welfare and private adoption agencies. Around the time of enactment it was estimated that 25-35% of Native children were being removed from their families, and of those children removed approximately 85% were placed outside of their communities regardless of whether there were fit and willing relatives within the community available for placement. This process has been recognized as the result of racist and culturally insensitive beliefs that Native children would live better, more productive lives in the homes of white, middle-class families.
In an effort to prevent this repulsive practice of breaking up Native families, Congress enacted ICWA, which “protects the best interest of Indian children and… promote[s] the stability and security of Indian tribes and families” by governing jurisdiction over the removal of Native children from their families. Even with ICWA in place, however, Native children are still being removed from their homes and sent to live with non-Native families, in part because of a misunderstanding of traditional cultural practices of Native people.  Through the ICWA, child welfare caseworkers are required to make several considerations when handling a case involving a Native family.
With certain protections in place, caseworkers are to prioritize placement within the child’s family, in the tribe, or with other Native people. Opponents of ICWA argue that these preferences run counter to the actual best interests of the child. Those in opposition are troubled by “racial” classifications that guide ICWA and take issue with the removal of ICWA cases from state courts to tribal courts.
In the most recent challenge to ICWA, the Brackeens, a non-Native Texas couple, made significant efforts to adopt a Native baby whose biological parents are from the Cherokee and Navajo tribes. The couple’s efforts to adopt were thwarted by a Texas family court because the baby’s placement fell under ICWA. Although ICWA does not bar non-Native families from adopting or fostering Native children, it does require a showing of good cause that the child should not or cannot be placed with a Native family. The Brackeens brought suit challenging the constitutionality of ICWA in October 2017 and were joined in their suit by six other families and the states of Texas, Louisiana, and Indiana. Quickly after the case was filed, the Cherokee Nation, Oneida Nation, Quinault Indian Nation, and Morongo Band of Mission Indians successfully intervened as defendants.
On October 4, 2018, granting the plaintiffs’ motion for summary judgment, U.S. District Judge Reed O’Connor found ICWA to be unconstitutional. Specifically, Judge O’Connor ruled that ICWA’s mandatory placement preferences violated equal protection under the Fifth Amendment. This rested mostly on the finding that ICWA’s preferential treatment was race based rather than the child’s political affiliation with the tribe. As a racial classification ICWA had to survive strict scrutiny. Through this, Judge O’Connor found that the federal defendants did not offer a “compelling governmental interest that ICWA’s racial classification serves” nor did it successfully argue that the classification was “narrowly tailored to that end”
The Federal Government, along with the intervening tribes, filed an appeal to the Fifth Circuit. After filing an appeal the defendants argued in a motion to the Fifth Circuit that without a stay during the appeal they “will lose their statutory rights in state-court proceedings involving Indian children in Texas…” and “Indian children will be denied the protections Congress thought essential to prevent the unjustified breakup of Indian families.” On December 3, 2018 the court ordered a stay of the District Court’s order striking down ICWA. With this ICWA will remain in effect pending a decision in the Fifth Circuit.
Since appeal the Navajo Nation sought to intervene in the action as a defendant. The Navajo Nation was met with resistance by the plaintiffs in the suit, arguing that defendant tribes already in the action are adequately representing the interests of the Navajo Nation. Navajo Nation, on the other hand, argues that the district court “misconstrued the Nation’s tribal membership laws and misconstrued the nature of tribal membership more broadly.”  On appeal the defendants will argue that the District Court erred in its finding that ICWA’s preferences were race-based and warranted strict scrutiny, as opposed to a political preference receiving only rational basis. Most recently amicus briefs have been submitted on behalf of all parties, demonstrating the overall impact that this decision can have as well as many of the interests involved. Without ICWA, Native children and families will be vulnerable once again to racist and culturally misguided adoption proceedings. The fate of Native children in the child welfare system rests on the upcoming decision of the Fifth Circuit.
 Indian Child Welfare Act of 1977: Hearing on S. 1214 Before the Senate Select Comm. on Indian Affairs, 95th Cong., 1st Sess. (1977) [hereinafter 1977 Hearing];Indian Child Welfare Program: Hearings Before the Subcomm. on Indian Affairs of the Senate Comm. on Interior and Insular Affairs, 93d Cong., 2d Sess. (1974) [hereinafter 1974 hearing].
 Jeanne Louise Carriere, Representing the Native American: Culture, Jurisdiction, and the Indian Child Welfare Act, 79 Iowa L. Rev. 585, 604 (1994)(quoting Indian Child Welfare Program: Hearings Before the Subcomm. on Indian Affairs of the Comm. on Interior and Insular Affairs, 93d Cong., 2d Sess. 1, 13 (1974)) (“The nontribal placement of Native American children amounted to an attempt at ‘detribalization and … deculturalization … efforts to make Indians white.’”)
 Top 10 ICWA Myths, National Child Welfare Association (last visited Feb. 24, 2019) (explaining that ICWA covers all Native children who are members of a federally recognized tribe/Alaska Native village, or is eligible for membership of one such tribe or village and is the biological child of a member of a federally recognized tribe or village.) https://www.nicwa.org/wp-content/uploads/2017/04/Top-10-ICWA-Myths.pdf
 About ICWA, National Indian Child Welfare Association (last visited Feb. 24, 2019), https://www.nicwa.org/about-icwa/ (“Although progress has been made as a result of ICWA, out-of-home placement still occurs more frequently for Native children than it does for the general population. In fact, recent research on systemic bias in the child welfare system yielded shocking results.”).
 Id. (Child welfare caseworkers are supposed to consider, among other things: “Notifying the child’s tribe and the child’s parents of the child custody proceedings; and  working actively to involve the child’s tribe and the child’s parents in the proceedings.”)
 Timothy Sandefur et. al., Families, Tribes, and the Indian Child Welfare Act, Cato Unbound, https://www.cato-unbound.org/print-issue/2102 (CATO institute arguing that ICWA’s definition of what “counts” as Native American and other aspects of the law run against the children’s best interest because those preferences can “end up placing children in danger, sometimes in pursuit of no particular tribal goal at all.”).
 Brackeen v. Zinke, 338 F. Supp. 3d 514, 525 (N.D. Tex. 2018). The Brackeens had the support of the child’s biological parents and grandparents, however the Navajo nation notified the state court that it had found a potential alternative placement with non-relatives.
 Under ICWA a Native child “should be placed with a member of the child’s extended family, a member of the child’s Indian tribe, or another Indian family” in that order of preference. A court can depart from this preference if there is good cause. The state court found that the Brackeens failed to show good cause. Id. at 526.
 Brackeen v. Zinke, 338 F. Supp. 3d 514, 519 (N.D. Tex. 2018)
 Id. at 518.
 Id. at 531-37 (“ICWA’s mandatory placement preferences in child placement proceedings involving Indian children were not narrowly tailored to further compelling governmental interests in fulfilling Congress’s unique obligation toward the Indians and maintaining Indian child’s relationship with tribe, and thus violated equal protection….”).
 Id. at 533-34 (“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…”)
 Id. at 534
Chad Brackeen v. David Bernhardt, No. 18-11479, WL (5th Cir. Filed Nov. 19, 2018).
 Andrew Westney, Tribes Ask 5th Circ. For Halt In Indian Child Welfare Case, Law 360, November 20, 2018, https://www.law360.com/articles/1103745/tribes-ask-5th-circ-for-halt-in-indian-child-welfare-case
John Kelly, Federal Court Puts Indian Child Welfare Act Decision on Hold; Feds Join Appeal, The Chronical of Social Change, Dec. 4 2018, https://chronicleofsocialchange.org/child-welfare-2/federal-court-puts-indian-child-welfare-act-decision-on-hold-feds-join-appeal
 Andrew Westney, States Say Navajo Can’t Step Into Child Welfare Fight, Law 360, January 23, 2019, https://www.law360.com/articles/1121232/states-say-navajo-can-t-step-into-child-welfare-fight
supra note 19.
 supra note 18.