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Protecting our Wakanyeja

‘They are not your children’

Tehassi Hill is among leaders of various Native American tribes hoping the 5th U.S. Circuit Court of Appeals will reverse the ruling and uphold the law. | AP Photo

NEW ORLEANS, La. – A case that challenges Tribal rights to protect their Wakanyeja, their sacred children, was heard before 5th U.S. Circuit Court of Appeals on March 13.

Plaintiffs in case, Brackeen v. Bernhardt, argue that the 1978 Indian Child Welfare Act is unconstitutional because it’s a race-based law and violates the equal protection clause.

According to defendants in the case, “The argument goes against decades of precedent in which the government-to-government relationship between tribes and the United States is classified as political — not racial.”

Last October the same federal Judge, the Honorable Judge Reed O’Connor, who issued a ruling to invalidate the Affordable Care Act, also heard the ICWA case and issued a 55-page decision striking down the law.

Chairman Tehassi Hill of the Oneida Nation said that plaintiffs had “shopped around” to get their case heard before a federal judge with little experience in Indian law and policy.

On March 13, the three judge panel heard oral arguments by defendants in the case, a coalition of tribes, the Cherokee Nation, Oneida Nation, Quinault Indian Nation and Morongo Band of Mission Indians.

Defendants were enjoined by a total of 325 tribal nations, 57 Native organizations, including the Great Plains Tribal Chairmen’s Association, 21 states, and 31 child welfare organizations, 7 members of Congress, and dozens of scholars of federal Indian law.

The coalition issued a joint statement after the hearing, “There is broad, bipartisan support against this misguided attack on a law that is crucial for protecting the wellbeing of Indian children and Indian sovereignty. The Trump administration has also reiterated its support for ICWA, tribal sovereignty and the safety of Indian children.”

At the heart of the attack against ICWA is what is referred to as the “anti-commandeering doctrine” that has been the subject of a number of recent Supreme Court cases. It’s one that has been championed by conservative groups, including those seeking to undermine ICWA.

However according to the SCOTUS blog page; “Outside the court’s rulings in those cases, the doctrine has no basis in constitutional law.”

“First, the doctrine has no basis in the text and structure of the Constitution. If anything, the text and structure point in the other direction. For example, the supremacy clause makes the Constitution and federal laws supreme over state constitutions and state laws; it also binds state judges to the Constitution and federal law. The oath clause requires state legislators and state executive officers to swear an oath to support the federal Constitution, but doesn’t reciprocally require federal officers to swear an oath to support the states.

Other parts of the text specifically commandeer the states in various ways that cut to the heart of their independent sovereignty. For example, the Constitution requires state legislatures to provide for the election of federal representatives in Congress; it requires state executives to deliver fugitives from justice; it requires states to grant full faith and credit to the laws of other states; and it reserves to the states “the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress.” The federal Constitution also imposes important restrictions on independent state sovereignty, most notably in Article I, Section 10; the privileges and immunities clause of Article IV; and, of course, the Reconstruction Amendments and other civil-rights amendments (all of which succeeded the 10th Amendment).”

Eric Grant, a deputy assistant attorney general at the Department of Justice, told the panel of three judges, “If this court were to adopt plaintiffs’ theory for affirming that unprecedented ruling, an entire title of the U.S. Code would be effectively erased. But that theory, and that ruling, are wrong.”

According to Acee Agoyo journalist for judges, “who had largely been silent for most of the hearing, began to speak up, seemingly raising doubts about the positions being taken by the non-Indian couples and the states.”

Agoyo writes that Judge James L. Dennis said, “ICWA has been around for a long time. It definitely is to protect the culture of Indians. I don’t see how you can call that commandeering.”

Congress, he added, has the “authority to pass such laws and to finance them, also.”

According to Agoyo several minutes later, a second member of the panel spoke up when Kyle Hawkins, the Solicitor General of Texas, raised a state sovereignty argument against ICWA, which led to “one of the most dramatic moments in the hearing.”

“You used the words, ‘your children,’” Judge Priscilla Owen told Hawkins. “They are not ‘your children.’ They are members of the tribe before they are ‘your children.’”

Although defendants in the case don’t know when to expect a decision from the 5th Circuit, they are hopeful that the appellate court will rule in favor of the law that has protected Tribes from further diminishment through the taking of their most sacred resource, the Wakanyeja.

(Contact Ernestine Chasing Hawk at

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