It comes with the territory. Along with her new title, Deb Haaland, secretary of the Interior inherited top billing as the lead defendant in the latest decision in an ongoing case challenging the constitutionality of the Indian Child Welfare Act.
Previously the case in the U.S. Court of Appeals for the 5th Circuit was entitled Brackeen v. Bernhardt naming Haaland’s predecessor David Bernhardt as lead defendant. The baton has passed; the case is now entitled Brackeen v. Haaland.
The lead plaintiffs in the case are Chad and Jennifer Brackeen, a couple who filed a lawsuit in 2017 in Texas seeking to adopt a 2-year-old Navajo boy over a Navajo family who were available to take the boy. Although the Brackeens won their case in Texas district court in 2018 and finalized their adoption, the couple joined several other plaintiffs including the states of Texas, Louisiana and Indiana in challenging the constitutionality of the Indian Child Welfare Act in the 5th District Court of Appeals.
On April 6, the 5th Circuit issued a decision in this unusually long and complicated case in a rarely used legal procedure called en banc in which all judges from a U.S. Court of Appeals rehear a case that was decided by a three-judge panel.
The court’s ruling is long, 352 pages, and enormously complicated. Experts in Indian child welfare law are still busy today trying to fully unwind the implications for the act, American Indian law and the U.S. Constitution.
Here is what we know.
First the good news:
The good news for tribes and Native American children’s advocates and adoptive families is that the court upheld important aspects of the act.
The en banc court holds that Congress was authorized to enact the Indian Child Welfare Act and concludes that this authority derives from Congress’s enduring obligations to Indian tribes and its plenary authority to discharge this duty. In other words, the act is constitutional.
Intervenor defendants in the case — Cherokee Nation Principal Chief Chuck Hoskin Jr., Morongo Band of Mission Indians Chairman Robert Martin, Oneida Nation Chairman Tehassi Hill and Quinault Indian Nation President Guy Capoeman — issued the following statement, “As we review the latest decision from the Fifth Circuit, our tribes remain committed to fighting for the Indian Child Welfare Act and ensuring that all of its provisions are upheld. While the decision is long, we are pleased to see the Court upheld important aspects of ICWA. We appreciate the law’s overwhelming support across the political spectrum and will consider all of our options to ensure we never go back to the days when Indian children were ripped away from their families and stripped of their heritage. It is deeply troubling that the attacks on this critical law continue, but we are prepared to continue our work to defend ICWA.”
The court also found that the act’s “Indian Child” designation and portions of the final rule are based on a political classification and are not race based.
The act’s regulations created by the Bureau of Indian Affairs do not violate the Administrative Procedure Act in its final rule. The Administrative Procedure Act is a federal statute governing which agencies can propose and establish regulations.
According to the published decision, however, the hearing did not garner any majority decisions, therefore the court published the 352-page issue-by-issue summary. Legal experts did not offer any opinions regarding the unusual length of the decision.
As Indian Country Today reported in 2019, legal experts expressed concern that the original suit in the 5th District Court presented a direct challenge to the whole of Indian law. If ICWA was found unconstitutional, such a decision would undermine the sovereignty of tribal governments.
According to many experts in Indian law, the original opinion finding the act unconstitutional, underscored the rise of Federalist philosophies in conservative politics supporting states’ rights over federal authority, questioning the constitutionality of requiring state governments to carry out federal policies.
Now, it seems, the scope of dissent against the act has narrowed, significantly focusing rather on anti-commandeering claims, some of which the court found to be unconstitutional.
For instance, the court found that the federal government can’t commandeer states when it comes to states’ rights. This means that the federal government can’t require state agencies to give notice to tribes or require qualified witnesses in adoption cases or require states to keep records on Indian child welfare cases.
According to Matthew Fletcher, professor of Law and Director of the Indigenous Law and Policy Center at Michigan State University, questions surrounding Texas’s anti-commandeering claims as well as portions of the Act’s statutes that were found by the 5th Circuit to be unconstitutional might be a basis for taking the Act to the Supreme Court.
Fletcher is a citizen of the Grand Traverse Band of Ottawa and Chippewa Indians.
The Supreme Court created the anti-commandeering doctrine in 1992 out of the 10th amendment to the Constitution.
The 5th District court also split on finding that giving preference to Native adoptive families represented a violation of the equal protection clause in the constitution.
Adding confusion and a bit of droll commentary is Judge Gregg Costa’s opinion, the final opinion in the decision.
He writes, “The most astonishing irony results from this being a federal court challenge to laws that apply in state adoption proceedings. It will no doubt shock the reader who has slogged through today’s lengthy opinions that, at least when it comes to the far-reaching claims challenging the Indian Child Welfare Act’s preferences for tribe members, this case will not have binding effect in a single adoption. That’s right, whether our court upholds the law in its entirety or says that the whole thing exceeds congressional power, no state family court is required to follow what we say.”
“There is a term for a judicial decision that does nothing more than opine on what the law should be: an advisory opinion. That is what the roughly 300 pages you just read amount to,” Costa added.
Mary Kathryn Nagle, Cherokee, is a partner with the law firm Pipestem and Nagle.
After reviewing the decision she said, “It’s clear that the court couldn’t quite make up its mind.”
Ultimately, most experts agree that as a result of the 5th circuit’s decision, the Indian Child Welfare Act is destined for another test in the U.S. Supreme Court.
Elizabeth Reese of the University of Chicago Law School told Indian Country Today, “This case is about something that couldn’t be closer to our hearts — Indian children — but it was decided by the 5th Circuit and could ultimately be decided by the Supreme Court on complex legal issues about the limits of federal power.”
“That disconnect feels very jarring but it’s not necessarily a bad thing,” the Nambe Pueblo citizen said. “This case was brought as a clean attack on ICWA’s Indian status categories as unconstitutional and race-based preferences. It could have been the first step toward dismantling a lot of Indian law as unconstitutional.”
“The fact that the attack has gotten this messy is a sign that it’s not going according to plan,” she said.