Cherokee Nation to be present at rehearing of Brackeen case
TAHLEQUAH – Though it has been litigated before, the Indian Child Welfare Act is again under legal challenge, and Cherokee Nation officials plan to show support for the federal law requiring preference for placing American Indian children with Native families in adoption and foster cases.
On Jan. 22, Principal Chief Hoskin Jr. and a CN delegation will join Morongo Chair Robert Martin, Oneida Chairman Tehassi Hill and Quinalt President Fawn Sharp inside the Fifth Circuit U.S. Court of Appeals in New Orleans to demonstrate unity on the constitutionality of the ICWA.
“The law has been very effective,” Hoskin said. “It doesn’t absolutely mandate that children subject to adoption that are citizens or could be citizens of an Indian Nation must be adopted by an Indian family, but it does create that preference. It creates a system in which the courts of this country have to respect the sovereignty of an Indian tribe by affording the tribe notice.”
After hearing Brackeen v. Bernhardt in the Fifth Circuit, a three-judge panel ruled the ICWA constitutional in mid-2019. However, the court agreed to an en banc hearing with the full panel beginning Jan. 22. Plaintiffs in Texas, Minnesota, Indiana and Louisiana have jointly challenged the constitutionality of the ICWA, naming the U.S. Department of the Interior, Bureau of Indian Affairs and Department of Health and Human Services as defendants.
An amicus brief in support of the ICWA was filed by hundreds of tribes, 26 states, the District of Columbia, 77 members of Congress and more than 30 organizations.
Lead plaintiffs are Chad and Jennifer Brackeen of Texas. They provided foster care for a baby eligible for citizenship in the Cherokee and Navajo nations, and petitioned to adopt after the boy’s parents voluntarily terminated their parental rights. When placement with a Navajo family failed, the couple was able to allowed to keep the baby after fights in court. Briefs suggest the couple also wants to adopt the boy’s half-sister. The other states acting as plaintiffs are also siding with non-Native families wanting to adopt Native children.
States have argued that the ICWA interferes with their ability to place at-risk children in stable homes, but the tribes say their sovereignty over Native children supersedes that of any state, and that the federal government – which passed the ICWA – has the constitutional authority to deal with the Native tribes.
“We believe (the ICWA) respects our sovereignty and the sovereignty of all Indian nations,” Hoskin said. “We believe it is in the best interests of Indian children not to return to a time in which the adoption industry and mainstream society takes them away from their families.”
American Indian tribes lobbied for the ICWA as one way to re-establish Native cultural upbringings for Native American children. Hoskin said the practice of placing Native children in non-Native environments does not have a happy history in the United States.
“The ICWA was enacted by Congress in the 1970s to address a terrible problem in Indian Country that was generations in the making,” he said. “History is replete with examples of Indian babies even being sold to non-Natives. It reflected a time, even into the 20th century, of the prevailing U.S. policy of civilizing American Indians, and one means of doing that was removing children from what was seen as a way of life outside the mainstream.”
Hoskin said Natives were removed from the traditions, customs and extended family typical of American Indian tribes, with serious consequences, including a higher suicide rate.
“It broke families apart and decimated tribal communities,” Hoskin said. “When you rob any community of its new generation, you are robbing it of its future. It had a predictable effect of damaging tribal communities and damaging children. It was also a policy at odds with the idea that Indian nations in this country are sovereign governments. One of the attributes of sovereignty is the ability to regulate and exercise control over the welfare of children in the community.”
With the ICWA, two significant mechanisms were put in place. Indian nations are given notice when a custody proceeding involves a child belonging to the tribe, and every effort is made to place Native children with someone in the family, extended family, the respective tribal community, or even with another tribe where, Hoskin said, “they are at least more likely to be exposed to customs, culture and norms that are more in line.”
So, the CN will be in New Orleans to support the defendants in Brackeen v. Bernhardt.
“The case will be resolved by the lawyers and the circuit court judges, and this could end up in the Supreme Court,” Hoskin said. “For now, we at the Cherokee Nation think we ought to be there in person to demonstrate this is an important issue to Indian Country, to the Cherokee Nation, and it is worth the effort to bear witness to one of the most significant legal cases of our time.”