OVERTURNED: Fifth Circuit: #ICWA is Constitutional on All Counts

Here.

The Fifth Circuit overturned the Northern District of Texas today with strong language supporting ICWA. The Court found that the plaintiffs did have standing, but found against them on all other counts. There is a dissent forthcoming from Judge Owens.

Equal Protection:

We begin by determining whether ICWA’s definition of “Indian child” is a race-based or political classification and, consequently, which level of scrutiny applies. The district court concluded that ICWA’s “Indian Child” definition was a race-based classification. We conclude that this was error.

We disagree with the district court’s reasoning and conclude that Mancari controls here. As to the district court’s first distinction, Mancari’s holding does not rise or fall with the geographical location of the Indians receiving “special treatment.”

Anti-Commandeering:

We examine the constitutionality of the challenged provisions of ICWA below and conclude that they preempt conflicting state law and do not violate the anticommandeering doctrine.

Non-Delegation:

We find this argument unpersuasive. It is well established that tribes have “sovereignty over both their members and their territory.” See Mazurie, 419 U.S. at 557 (emphasis added)"

For a tribe to exercise its authority to determine tribal membership and to regulate domestic relations among its members, it must necessarily be able to regulate all Indian children, irrespective of their location.

Authority to Issue Regulations

Here, section 1952’s text is substantially similar to the language in Mourning, and the Final Rule’s binding standards for Indian child custody proceedings are reasonably related to ICWA’s purpose of establishing minimum federal standards in child custody proceedings involving Indian children. See 25 U.S.C. § 1902. Thus, the Final Rule is a reasonable exercise of the broad authority granted to the BIA by Congress in ICWA section 1952.

Conclusion:

For these reasons, we conclude that Plaintiffs had standing to bring all claims and that ICWA and the Final Rule are constitutional because they are based on a political classification that is rationally related to the fulfillment of Congress’s unique obligation toward Indians; ICWA preempts conflicting state laws and does not violate the Tenth Amendment anticommandeering doctrine; and ICWA and the Final Rule do not violate the nondelegation doctrine. We also conclude that the Final Rule implementing the ICWA is valid because the ICWA is constitutional, the BIA did not exceed its authority when it issued the Final Rule, and the agency’s interpretation of ICWA section 1915 is reasonable.

Fifth Circuit: ICWA is Constitutional on All Counts by ilpc MORE: https://www.narf.org/cases/brackeen-v-bernhardt/

NAJA Calls Out LA Times for Anti-Indian Child Welfare Act Op-ed Full of “Anti-Indian Propaganda”

Naomi Schaefer Riley

Published October 20, 2018

NORMAN, Okla.  —  The Native American Journalist Association, based in Norman, Oklahoma sent a letter critical of the Los Angeles Times publishing an op-ed that allowed a writer to call for the elimination of the landmark 1978 Indian Child Welfare Act.

Here is the letter sent to the Los Angeles Times:

The Native American Journalists Association is disappointed in the lack of due diligence demonstrated by the Los Angeles Times in publishing the op-ed “Does the Indian Child Welfare Act protect tribal interests at the expense of children?” We call on the organization and the opinion section to review their policies and practices in light of its unchecked dissemination of anti-Indian propaganda.

The Times published an Oct. 12 op-ed by Naomi Schaefer Riley in which Schaefer Riley advocates for the elimination of the Indian Child Welfare Act (ICWA) by deliberately misrepresenting the law to readers – a tactic organizations labeled hate groups have used in an attempt to undermine the law.

NAJA is dismayed that the Times would publish opinions that align so closely with views held by established anti-Indian hate groups and calls on the paper to review their op-ed policies and journalistic standards. It is chilling that a revered organization like the Times would lack the ability to identify the difference between informed opinion on important and consequential Indigenous issues, and talking points advocated by anti-Indian hate groups based on stereotypes and misinformation.

For this reason, NAJA has published a guide on best practices when reporting on ICWA cases to provide newsrooms with the tools to provide readers with accurate and contextual coverage on the topic. NAJA consistently advocates for consultation with tribal leaders and authorities. Had the Times’ editors consulted any tribal leaders, they would have learned that tribal nations within the United States do NOT support the elimination of ICWA.

NAJA also recommends that reporters never refer to blood quantum when covering ICWA cases. The law applies to citizens of tribal nations as determined by that nation, not federally imposed standards like degree of Indian blood. Measuring the amount of Indian blood a child has is an inherent act of racism. However, Schaefer Riley's op-ed hinges on this idea then leans on stereotypes such as poverty, domestic abuse and drug use to paint a disparaging picture of Indigenous families to suggest that those communities lack the ability to provide children a good life.

We encourage the Times to follow the journalistic practices established by Indigenous journalists and endorsed by NAJA to provide ethical and culturally sensitive coverage to readers, instead of providing a platform for hate groups and their sympathizers to promulgate anti-Indian propaganda.

NAJA Calls Out LA Times for Anti-Indian Child Welfare Act Op-ed Full of “Anti-Indian Propaganda” by Levi Rickert

Reporting on #ICWA Factsheet

see link below

By Trace Hentz (blog editor and adoptee)

We are at a crossroad again. We've had various recent attacks on the Indian Child Welfare Act, as if the history didn't exist as to why there is a federal law in place to protect Native children.

Do journalists not understand the history of the ICWA and the governments who attempted to destroy Indian culture by taking away future generations?

In 2016, trafficking in children is a $14 billion dollar industry. Children-in-the-system do produce an income for some people (lawyers, judges, social workers, foster parents.)

Indian children are protected from trafficking/adoption today with the federal law ICWA.

Why the attacks on ICWA?  Do they honestly think that the Native adoptee will settle in with their white parents and never question what actually happened?

Children are young a short period of time. We are not robots. We do think for ourselves.

I cannot think of one Native adoptee who has not done a search for their first family after a closed adoption.  Our identity may have been taken from us but we will go looking for it as adults.

Being placed in a non-Indian home will not prevent any adult adoptee from searching for their families and tribe.

Veronica Brown, Lexi and others have put ICWA back in the news. That is the good news with the bad news...

Here is what the Native American Journalists Assoc. did to help mainstream reporters write a better balanced story:

NORMAN, Okla. – Earlier this year, the Native American Journalists Association (NAJA) was disheartened by mainstream reporting on several cases involving the welfare of Native American children.
In response to the arbitrary reporting on this issue, the NAJA Board of Directors has collaborated with the National Indian Child Welfare Association to release a media guide to aid reporters and editors when covering cases that fall under the Indian Child Welfare Act (ICWA).
NAJA is hopeful this guide will be a useful resource for any media outlet covering ICWA and will help improve coverage of a complex and significant issue for American Indians / Alaskan Natives.
Ethical journalism should always inform coverage of intricate laws such as ICWA, which directly involve children and families in the Native American community.
According to the guide, some ICWA cases may be newsworthy, however, the way journalists report these stories can encourage anti-Indian sentiments and influence negative behavior toward tribes and tribal citizens.
There is no cost to access the resource guide, which is available for download on the NAJA website at: http://www.naja.com/resources/covering-icwa/.

What happened to #DustenBrown and #VeronicaBrown still lingers. This is why we need a stronger #ICWA. #ajstreamhttps://t.co/nyy1FFJSh2

— Cutcha Risling Baldy (@cutchabaldy) April 6, 2016