Texas case revives ‘Baby Veronica’ issues

TAHLEQUAH — The Cherokee Nation will be taking a calculated risk when it appeals a recent decision by a federal judge in Texas declaring the Indian Child Welfare Act unconstitutional, limiting the tribe’s right to intervene in adoption cases.

For now, the decision doesn’t set a binding precedent outside the Northern District of Texas where it was decided. But if the tribe loses an appeal at the Fifth U.S. Circuit Court of Appeals in New Orleans, it would set a much wider precedent. And the appeal itself, whether the tribe wins initially or not, could push the case to the U.S. Supreme Court, giving the justices a chance to strike down Indian Child Welfare Act nationwide.

A risk. But a risk worth taking, says Chrissi Nimmo, an assistant attorney general for Cherokee Nation.

Besides, the Oct. 4 ruling in Fort Worth, Texas, will inspire similar arguments in adoption cases across the country, putting tribes on the defensive, Nimmo says. Sooner or later, the issue will have to go to a higher court.

“We’re pretty confident,” she says, “that on appeal it will be overturned.”

Deciding a case reminiscent of Oklahoma’s epic Baby Veronica legal battle, U.S. District Judge Reed O’Connor declared that the Indian Child Welfare Act gave Native American families preferential treatment in adoption proceedings based on race, violating the Fifth Amendment’s equal protection guarantee. He also ruled that the Indian Child Welfare Act violated state sovereignty by forcing Texas to implement adoption policies “unequivocally dictated” by the federal government.

The case, Brackeen v. Zinke, involves a Texas couple who fostered a baby boy from the time he was 10 months old until he was 2, when they sought to adopt the child permanently with permission from the biological parents, who were from the Cherokee and Navajo tribes. A family court initially blocked the adoption, citing Indian Child Welfare Act provisions that encourage Native American children to be placed in Native American homes.

The adoptive parents argued that the Indian Child Welfare Act discriminated against them on the basis of race.

Baby Veronica’s case raised similar arguments when it reached the U.S. Supreme Court in 2013, after a Cherokee father from Oklahoma used the Indian Child Welfare Act to take custody of his 2-year-old daughter even after she had already been adopted by a white couple in South Carolina. The Supreme Court ruled in favor of the adoptive parents and the Cherokee father eventually lost custody, albeit only after a protracted court battle in Oklahoma.

In that case, however, the Supreme Court simply ruled that ICWA didn’t apply under the specific circumstances of Baby Veronica’s adoption, leaving aside arguments that the law was unconstitutional. And without a clear ruling on the Indian Child Welfare Act itself, adoption attorneys have continued to attack the law, Nimmo says.

“The court didn’t address that issue,” Nimmo says. “But sooner or later, I think it might have to.”

Congress passed the Indian Child Welfare Act in 1978 after a congressional investigation found that 1 out of 3 or 4 Native American children was being taken away from their parents, a rate six times higher than other children. The law doesn’t ban non-Native parents from adopting Native children but gives a tribe the right to intervene in such adoptions.

Cherokee officials argue that the Indian Child Welfare Act doesn’t create racial or ethnic preferences, it merely protects tribal sovereignty by preserving the right to pass on culture and heritage to the next generation.