The federal government is actually doing something worthwhile in Indian Country.
On Monday, it was reported that the Department of Justice had joined four tribes to fight a Texas court’s decision in Bracken v. Zinke, which found crucial portions of the Indian Child Welfare Act unconstitutional. Adding to the good news as the day came to a close, the Court of Appeals for the Fifth Circuit issued a stay over the controversial decision at the heart of Bracken, meaning its final ruling cannot be implemented by any states within the court’s jurisdiction.
It was in Bracken that Judge Reed O’Connor—a white George W. Bush appointee sitting on the bench in the Northern District of Texas—ruled that portions of the Indian Child Welfare Act were unconstitutional on the grounds that the legislation discriminates on the basis of race. The case concerned three Native children who had been placed with a pair of non-Native parents; the larger issue is one the right-wing Goldwater Institute has been plugging away at for years.
Much like how the United States separates children from immigrant parents attempting to cross the U.S.-Mexico border, the American government has a long, long history of stripping Native children from their tribes and families and attempting to assimilate them, either under the guise of educational efforts or simply by ruling parents unfit to raise a child and giving them to white parents. This has gone on as long as colonizers have set foot on Native soil—as Tracy Rector wrote for the Washington Post, most every Native has the infamous words,“kill the Indian … save the man,” branded in their minds. Forty years ago, the United States federal government attempted to put a stop to this by passing the ICWA, which granted tribes the legal right to determine matters of child protection and guardianship as sovereign nations.
O’Connor’s ruling was deeply troubling to anybody that pays attention to Native legal cases, as it set the precedent that Native peoples would be judged as a race and not as the sovereign nations they are. Unsurprisingly, just three weeks after the decision was set down, the Lonestar State’s First Assistant Attorney General Jeffrey Mateer said in a letter to the Department of Family and Protective Services that “ICWA and the Final Rule are no longer good law and should not be applied to any pending or future child custody proceeding in Texas.”
On Friday, the Department of Justice teamed with the four tribes appealing the Bracken ruling, which came 11 days after Cherokee Nation, Morongo Band of Mission Indians, Oneida Nation, and Quinault Indian Nation filed an appeal. The same day the federal government joined the fight, the Navajo Nation also filed to join the appeal.
The stay granted Monday came on the grounds that the implementation of the new policy—the Texas state government seizing Native kids by claiming ICWA was null and void—was a violation of the sovereignty granted to the tribes and that no such policy should occur before the appeals process comes to a full conclusion.