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Mary Annette Pember
Indian Country Today

New Orleans was already setting up bleachers in preparation for next month’s Mardi Gras, the great bacchanal that has come to define the city.

The atmosphere in the inner recesses of the U.S. Court of Appeals for the Fifth Circuit building located near the French Quarter, Mardi Gras party central, however, could not have been more incongruous.

The battle over the constitutionality of the 1978 Indian Child Welfare Act played out in a small, austere court room in the heart of the Big Easy. But there was nothing easy about the case.

The outcome of the hearing has far reaching implications for Indian Country beyond child welfare; if the Indian Child Welfare Act is found to be unconstitutional, it could undermine the entirety of American Indian law.

Today’s proceedings took place in a special courtroom, reserved solely for en banc hearings.

The court made the unusual decision to vacate its August 9 decision in Brackeen v. Bernhardt in which judges found that claims that the Indian Child Welfare Act was a race-based law and therefore unconstitutional were wrong. The court later announced it would rehear the case en banc, a proceeding in which all judges from a U.S. Court of Appeals rehear a case that was previously decided by a three judge panel. An en banc review is a rare legal procedure reserved for the purposes of maintaining uniformity of the court’s decisions or to show that the proceeding involves a question of exceptional importance. Some legal scholars claim that circuit courts use of en banc is driven by ideological motivations and has been weaponized by courts.

The players in the battle over the child welfare law filled the small courtroom to its approximately 150-person capacity. In addition to the five attorneys and their teams arguing the case, there were attorneys from the Native American Rights Fund, representatives and attorneys from the National Congress of American Indians, the National Indian Child Welfare Association, representatives of the five tribal intervenor defendants, the Cherokee, Oneida, Quinault and Morongo Nations, individual plaintiffs Chad and Jennifer Brackeen, for whom the case is named, their supporters, as well as representatives from various advocacy groups on both sides of the issue. The court provided a room for overflow seating in which spectators could hear the proceedings via electronic speakers.

Crowd waits to enter US 5th circuit court of appeals building in New Orleans for en banc hearing on Indian Child Welfare Act. (Photo by Mary Annette Pember, Indian Country Today)

Crowd waits to enter US 5th circuit court of appeals building in New Orleans for en banc hearing on Indian Child Welfare Act. (Photo by Mary Annette Pember, Indian Country Today)

Indian Country Today was provided a small office chair with a handwritten sign marked “media” in the main en banc courtroom; placed at the end of a row of spectator benches, it provided a good view of the proceedings. The minutes ticked by. Anxious attorneys and spectators fell silent as they waited for the judges to emerge from narrow doorways on either side of the enormous dark wood bench that occupied nearly one third of the courtroom.

The gavel struck three times and sixteen of the seventeen judges entered the room. Judge James Ho recused himself from the proceedings.

During questioning of attorneys, several judges focused on concerns that Indian Child Welfare Act presented a violation of the Constitution’s anti-commandeering doctrine, allowing Congress to usurp states’ authority over child welfare proceedings and requiring states to bear the cost and burden of administrating federal law. When asked if act disempowered states from overseeing their own domestic affairs relating to adoptions and regulations of family affairs, Eric Grant, attorney for the Department of Interior, noted that Congress established minimum federal standards because it was a response to states’ standards that resulted in the breakup of Native families.

Judges also questioned if Indian Child Welfare Act was a raced based law, asking several times if blood quantum is the determinant in tribal citizenship. Paul Spruhan, attorney representing the Navajo Nation responded that blood may be one of the factors but that tribal citizenship is not a racial reference.

The hearing lasted about two hours; judges are not expected to issue a decision for one to three months.

Fawn Sharp, president of the Quinault Nation and president of the National Congress of American Indians said of the proceedings, “We still have a lot of work to do in terms of educating people about Native Americans. The questions posed by the judges and statements made by the plaintiffs’ attorneys showed a huge misunderstanding about tribal sovereignty and tribes relationship with the federal government. They seemed to struggle to discover a legal standing and source of law to provide the foundational piece for tribal sovereignty.”

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“Nobody gifted our sovereignty to us. We didn’t gain it from the federal government. It’s who we are,” she said. “That’s why sovereignty is called an inherent right.”

Chuck Hoskins Jr, principal chief of the Cherokee Nation said: “I’m confident that the original three judge decision (finding ICWA constitutional) will be upheld. Congress knew what it was doing in the 1970’s when they enacted ICWA as a means to right the wrongs wrought against Indian children and their families.”

Dan Lewerenz, Iowa Tribe of Kansas and Nebraska, an attorney with the Native American Rights Fund who working on the case, said legal efforts to undermine the Indian Child Welfare Act are politically motivated and seldom rooted in concern for child welfare.

However Matthew McGill, the attorney for individual plaintiffs in Brackeen v. Bernhardt, said he and his clients have no ulterior motive in challenging law.

McGill emailed Indian Country Today: “Some journalists have suggested that we (the lawyers) or our clients are anti-Native or anti-Tribe, or that our case is “bankrolled” by outside interests. None of that is true. My firm and I are handling this case pro bono. And far from being “anti-Native,” both the Brackeens and the Librettis are ensuring that the children they have adopted (who are tribal members) maintain strong connections with their Tribes. We all believe both that Native and tribal families need and deserve support, but that ICWA should not and cannot be used to break up loving families like the Brackeens, Librettis, and Cliffords. (individual plaintiffs named in the case) That does not make us anti-Native.”

U.S. Interior Department Attorney Eric Grant said Congress passed the law after finding that adoption standards at the state level were resulting in the breakup of American Indian families. Paul Spruhan, arguing for the Navajo Nation, said the Indian Child Welfare Act “fulfills the federal government's treaty obligations with tribal nations."

Both were closely questioned by various judges about how an act of Congress can overcome state laws regarding domestic matters, especially those that touch on the lives of non-Native Americans, such as the plaintiffs.

Grant cited the Constitution's “supremacy clause,” which gives certain federal laws priority over state laws. Several judges were unconvinced that the clause applied, one telling Grant, “You're dis-empowering states from conducting their own domestic affairs, in terms of adoption, child custody and regulation of family affairs.”

The earlier court opinion by Judge James Dennis upheld the law's supporters who said the U.S. Supreme Court has long recognized that Congress has broad power to regulate Native American tribes. That opinion said the act's definition of Indian child is not based solely on race because “under some tribal membership laws, eligibility extends to children without Indian blood, such as the descendants of former slaves of tribes who became members after they were freed, or the descendants of adopted white persons.”

It was unclear when the full court would issue an opinion.

Three states — Louisiana, Indiana and Texas — are also plaintiffs in the case challenging the law. Twenty-six states and the District of Columbia have filed a brief supporting the law, although they do not have a direct role in the case.

What will happen in the end?

“It’s a fool’s game to predict what a court is going to do, especially when half of the judges during this hearing didn’t speak. That’s not uncommon but it makes it hard to read,” Lewerenz said.

Regardless of the courts’ decision, however, ICWA supporters agreed that the law is likely to go before the Supreme Court at some time in the near future. 

Mary Annette Pember, Red Cliff Band of Wisconsin Ojibwe, is a national correspondent for Indian Country Today. 

The Associated Press contributed to this report.