The U.S. Court of Appeals for the 5th Circuit agreed to rehear a lawsuit filed by a couple in Texas who say the Indian Child Welfare Act discriminates on the basis of race and infringes on states' rights.
The federal law, passed in 1978, mandates that states prioritize placing American Indian children up for adoption with members of their family, their tribe or other American Indian families -- a remedy to policies that had previously empowered the government to take native children from their parents without cause and eradicate their tribal identity.
The Texas couple, Chad and Jennifer Brackeen, sued the U.S. Interior Department in 2017 after their petition to adopt an American Indian toddler they had fostered for more than a year was challenged in state court. Texas Child Protective Services had removed the boy, called A.L.M. by the court, from the custody of his paternal grandparents and placed him in foster care with the Brackeens, who aren't American Indian.
The boy lived with them for 16 months, according to court documents. They sought to adopt him with the support of his biological parents -- members of the Navajo Nation and Cherokee Nation -- and his paternal grandparents. The Indian Child Welfare Act, however, requires that a child's tribe be notified before an adoption placement is approved.
The Navajo Nation located a nonrelative American Indian family in New Mexico willing to adopt the boy, though that placement ultimately fell through. Eventually, the Brackeens successfully petitioned to adopt A.L.M., and they are trying to adopt his younger sister.
Their suit was joined by state attorneys general from Texas, Louisiana and Indiana.
Texas Attorney General Ken Paxton said last year that the Indian Child Welfare Act unlawfully "elevates a child's race over their best interest," the Texas Tribune reported.
In October 2018, a federal judge in the Northern District of Texas agreed with their challenge, ruling that much of the act is unconstitutional. Defendants in the case, including the federal government and the Morongo, Quinault, Oneida and Cherokee tribes, appealed the decision.
In March, a panel of three judges on the 5th Circuit heard oral arguments in the case, and in August they ruled 2-1 to overturn the district judge's ruling. In the panel's decision, Circuit Judge James Dennis wrote that the Indian Child Welfare Act aimed to classify children not by race, but by politics. The definition of "Indian child" under the law is broad, he wrote, and extends "to children without Indian blood, such as the descendants of former slaves of tribes who became members after they were freed, or the descendants of adopted white persons."
The plaintiffs in the case appealed the panel's ruling, initiating a process that can kick the case back to a court of appeals and force the entire bench to hear it -- rather than just three judges.
On Thursday, the 5th Circuit ruled that it will rehear the case "en banc," writing that oral arguments will be scheduled at a later date.
Cherokee Nation Principal Chief Chuck Hoskin Jr., Morongo Band of Mission Indians Chairman Robert Martin, Oneida Nation Chairman Tehassi Hill and Quinault Indian Nation President Fawn Sharp issued a statement affirming their support for the Indian Child Welfare Act:
"We never want to go back to the days when Indian children were ripped away from their families and stripped of their heritage. We continue to believe that the Fifth Circuit decision affirming the constitutionality of ICWA was the right decision. While it is unfortunate that the attacks on this critical law continue, we are confident that the court will once again uphold the constitutionality of ICWA, as courts have repeatedly done over the past 40 years. ICWA provides a process for determining the best interests of Indian children in the adoption and foster care systems, which is why it is overwhelmingly supported across the political spectrum. We remain devoted in our efforts to defend ICWA because our number one priority remains fighting for the well-being, health and safety of children and families."
The day before the court's decision, Paxton posted a video interview with the Brackeens to his Twitter page.
The law, he wrote, "continues to be unconstitutional and has real, painful consequences for children and families."
A Section on 11/10/2019