The state of Alaska, scores of Alaska tribes, and Sen. Lisa Murkowski and Rep. Don Young have joined many of their counterparts nationwide, filing briefs opposing a federal judge’s ruling that struck down the law governing adoptions of Native American children.
U.S. District Judge Reed O’Connor of Texas erred when he found in October that the Indian Child Welfare Act was unconstitutional, Murkowski and Young argued in a “friends of the court" brief filed on Wednesday with the Fifth Circuit Court of Appeals.
Four Lower 48 tribes appealed O’Connor’s decision. They were joined in November by the U.S. Department of Justice.
They’re facing off against parents of Native American foster children who oppose the law, arguing that it halted or delayed their plans to adopt the child. The parents are joined by the states of Texas, Louisiana and Indiana.
The ruling threatens a “wide swath” of other federal legislation designed to benefit Alaska Natives and American Indians, the Alaska lawmakers argued in their brief. They joined five Congressional colleagues in the filing, including Rep. Tom Cole, R-Oklahoma, and Sen. Tom Udall, D-New Mexico.
ICWA prioritizes placement of Native American children in their family, tribe or in another Native home. The case grew out of the court challenges faced by a Texas couple, Chad and Jennifer Brackeen, as they sought to adopt a Native American child they had been fostering.
Adi Dynar, staff attorney at the Goldwater Institute, said he will be filing a “friend of the court” brief, or amicus brief, opposing the law.
He said the conservative and libertarian think tank, based in Arizona, believes the judge “correctly decided that ICWA creates a race, color or national-origin-based classification for Indian children."
The law “subjects the children to separate and substandard rules based on that classification,” Dynar said, setting requirements that can overlook the best interest of a particular child in a unique situation.
At times it unfairly removes children from foster homes and the only family they’ve known, he said.
Young called the law critical for protecting Native children and preventing the loss of Native communities, according to a written statement from Murkowski’s office.
Young, noting he helped pass the law in 1978, said O’Connor’s ruling was based on a “flawed assessment of ICWA and a lack of understanding of the federal government’s trust relationship with Alaska Natives and American Indians."
Erin Dougherty Lynch, an attorney with the Native American Rights Fund, helped write an amicus brief that was signed by 325 tribes nationwide, including more than 90 in Alaska. Dozens of Native organizations also signed on, including the Alaska Federation of Natives and the Alaska Native Tribal Health Consortium.
ICWA has never been based on race, Lynch said. Instead, it’s founded in the longstanding political relationship between tribes and the government. Indian Country is united in support of the law, she said.
“The district court’s interpretation of ICWA has never been adopted by any other court (and) makes no practical sense," she said.
It “finds no support in centuries of established federal Indian law," Lynch said.
ICWA was passed after Native American children were being removed from homes at high rates by public and private agencies. It sets federal requirements for state child custody cases involving children in tribes or eligible for tribal membership.
Sen. Dan Sullivan fully supports the brief filed by Young and Murkowski, his office said Thursday. He was not part of the congressional group filing it.
“Our office was given a very limited time to review, and Sen. Sullivan was not able to sign on before the brief was filed,” said a statement from Mike Anderson, a spokesman for Sullivan.
Murkowski said the act is among the “most significant pieces of Indian legislation Congress has ever enacted,” and is critical to maintaining Native cultures and families, according to the statement from her office.
The “friends of the court" filings are provided for the court’s consideration by groups that are not party to the case.
The filing deadline for groups supporting the law was Wednesday. Opponents of the law, such as the Goldwater Institute, must file by Feb. 6.
The state of Alaska joined 20 other states filing an amicus brief supporting ICWA on Monday.
“ICWA provides a productive framework to further the best interests of Indian children, preserve the Indian family unit, and promote productive government-to-government relationships between states and tribes,” said the states' brief, submitted by Alaska’s Kevin Clarkson and other attorneys general.