Speaking at an event in Oklahoma City on Oct 8, Stephanie Hudson held a piece of paper that read “#DefendICWA.” ICWA is the Indian Child Welfare Act, and Hudson, who runs Oklahoma Indian Legal Services, warned about a recent court decision in Texas calling the law “race-based” and therefore unconstitutional.
“The reason why this case is so important is because it’s the first case that has chipped away at the Indian Child Welfare Act,” said Hudson. “The courts have pretty much always upheld the Indian Child Welfare Act.”
The 1978 law aims to keep Native American foster children within tribal communities. Nearly one fourth of the state’s foster children are Native American according to the Oklahoma Department of Human Services. And nationally Native American children are disproportionately removed from their families through the child welfare system, according to the National Indian Child Welfare Association.
The Texas case, Brackeen v. Zinke, began with a non-Native couple whose petition to adopt a toddler of Navajo and Cherokee descent they had fostered for sixteen months was denied by a state court in July of 2017. The couple argued ICWA’s placement preferences should not apply because no other party sought to adopt the child, and the child's relatives supported the adoption. After the adoption was approved in January 2018, Texas Attorney General Ken Paxton continued to pursue the lawsuit filed against the federal government in October 2017. According to the Texas Tribune, Paxton argued ICWA “unconstitutionally discriminated on the basis of race and infringed on states’ rights to oversee their own child welfare proceedings.”
But the consequences of the Texas ruling could go well beyond ICWA.
“If they can start chipping away at the Indian Child Welfare Act and say that it’s a race-based law, then you can move into other types of law,” Hudson said.
Cherokee Nation, one of the defendants in the Texas case along with three other tribes, plans to appeal the ruling in the Fifth Circuit Court of Appeals.
“If this case is reversed, then that decision would be in line with all of the other ICWA cases,” explained Chrissi Ross Nimmo, Cherokee Nation’s Deputy Attorney General. “However, if we were to lose on appeal it does create a circuit split, and it also becomes a much more widely applicable decision.”
A loss could send the case to the U.S. Supreme Court, which defined tribal sovereignty in the 1800s through a series of cases known as the Marshall Trilogy. But, even if the case doesn’t rise to that level, Nimmo says losing the appeal could strengthen race-based arguments against ICWA and other Indian law in lower courts and threaten tribal sovereignty in general.
“There's a long line of federal court decisions that say when you have a law that applies specifically to Indian people or Indian tribes that it's not because they're racially Indian, it's because they are members of a sovereign government,” said Nimmo.
The Texas ruling also comes at a time of apprehension about tribal sovereignty under the Trump administration. The administration wants to classify tribes as a race, rather than political entities, under new Medicaid work rules being introduced in several states.
Others are also rallying against the acceptance of race-based arguments. Following the Texas decision, the Native American Rights Fund, the National Indian Child Welfare Association, the National Congress of American Indians, and the Association on American Indian Affairs released a joint statement. It reads, “This egregious decision ignores the direct federal government-to-government relationship and decades upon decades of precedent that have upheld tribal sovereignty.”
Cherokee Nation plans to file a motion to stay the Brackeen v. Zinke decision, which suspends the judgement's effect through the appeals process. They have 60 days to file their appeal.