Chero­kee Na­tion to ap­peal rul­ing

The In­dian Child Wel­fare Act was ruled un­con­sti­tu­tional by a fed­eral court

Tulsa World - - Front Page - By Michael Over­all

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 ICWA na­tion­wide.

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

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

“We're pretty con­fi­dent,” she said, “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 ICWA gave Na­tive Amer­i­can fam­i­lies pref­er­en­tial treat­ment in adop­tion pro­ceed­ings based on race, vi­o­lat­ing the Fifth Amend­ment's equal pro­tec­tion guar­an­tee. He also ruled that ICWA 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 with per­mis­sion from the bi­o­log­i­cal par­ents, who were from the Chero­kee and Navajo tribes. A fam­ily court ini­tially blocked the adop­tion, cit­ing ICWA pro­vi­sions that en­cour­age Na­tive Amer­i­can chil­dren to be placed in Na­tive Amer­i­can homes.

The adop­tive par­ents ar­gued that ICWA 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 ICWA to take cus­tody of his 2-yearold 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 Ver­noica's adop­tion, leav­ing aside ar­gu­ments that the law was un­con­sti­tu­tional. And with­out a clear rul­ing on ICWA it­self, adop­tion at­tor­neys have con­tin­ued to at­tack the law, Nimmo said.

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

Congress passed ICWA in 1978 af­ter a con­gres­sional in­ves­ti­ga­tion found that 1 out of 3 or 4 Na­tive Amer­i­can chil­dren were 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 it gives a tribe the right to in­ter­vene in such adop­tions.

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