A federal appeals court has reversed a Fort Worth federal judge’s ruling that found parts of the Indian Child Welfare Act unconstitutional.
The lower court ruling had sparked public outcry from hundreds of tribal groups, Congress, child welfare organizations and attorneys general fearing it would undo a decades-old law, which was designed to protect the interests of Native American children in custody proceedings.
But in an opinion issued Friday, the U.S. Court of Appeals for the Fifth Circuit determined that while families and state governments had standing to challenge the federal legislation, U.S. District Judge Reed O’Connor should not have granted a summary judgment in their favor.
The opinion was written by Circuit Judge James Dennis and joined by Judge Jacques Weiner. The opinion notes that Circuit Judge Priscilla Owen is expected to file a partial dissenting opinion “shortly.”
Passed by Congress in the late 1970s, ICWA gives Native Americans preference for foster care and adoption proceedings that involve Native American children. When the law passed, roughly one-third of Native American children were being removed from their families — sometimes forcibly — for placement in foster homes that had no Indian culture whatsoever. Tribal advocates say this led to Native American children making up the majority demographic of broken state foster care systems while losing their cultural roots in the process.
The plaintiffs in the case — three families and three states, including Texas — challenged the constitutionality of ICWA because, among other things, it fostered racial segregation by violating the Constitution’s guarantee of equal protection.
In the 46-page opinion, the Fifth Circuit ruled that the definition of “Indian children” under ICWA was a political issue, not a racial one; that the provisions of ICWA the adoptive families challenged do not violate constitutional rights under the Tenth and Fifth Amendments; and that ICWA preempts conflicting state laws — an issue the court considered de novo.
“ICWA specifies that Congress’s authority to regulate the adoption of Indian children arises under the Indian Commerce Clause as well as ‘other constitutional authority,’” Judge Dennis wrote in the opinion. “The Supreme Court has repeatedly held that the Indian Commerce Clause grants Congress plenary power over Indian affairs… Plaintiffs do not provide authority to support a departure from that principle here.”
“Each of the challenged provisions applies within the context of state court proceedings involving Indian children and is informed by and designed to promote Congress’s goals by conferring rights upon Indian children and families.”
In all, the Fifth Circuit reviewed 14 amicus briefs as a part of making its decision.
Attorneys general from 21 states filed amicus briefs on behalf of the federal government and tribes, including the states of California, Alaska, Arizona, Colorado, Idaho, Illinois, Iowa, Maine, Massachusetts, Michigan, Minnesota, Mississippi, Montana, New Jersey, New Mexico, Oregon, Rhode Island, Utah, Virginia, Washington and Wisconsin. The State of Ohio filed a brief in support of the plaintiffs.
An additional 325 tribes, 57 tribal organizations, members of Congress, Indian law and constitutional law scholars and 30 leading child welfare organizations filed amicus briefs backing the defendants.
The case was brought by a Texas couple, Chad and Jessica Brackeen, who after lengthy and difficult court proceedings adopted A.L.M., a child who is a member of the Cherokee Nation and Navajo Nation tribes. They claimed that they would like to foster and possibly adopt more children in need, but their experience adopting A.L.M. made them reluctant to provide foster care for other Indian children in the future. They are currently trying to adopt A.L.M.’s sister, Y.R.J., an adoption that the Navajo Nation contests, Friday’s opinion noted.
The Brackeens were later joined in the lawsuit by families from Minnesota and Nevada, as well as the states of Texas, Indiana and Louisiana.
The lawsuit named the federal government and officials of various federal agencies as defendants, as well as four Native American tribes that intervened in the case: Cherokee Nation, Oneida Nation, Quinault Indian Nation and Morongo Band of Mission Indians. Navajo Nation also participated in the appeal, but is not yet a party in the trial court.
A joint statement issued by the four tribes said the Fifth Circuit’s opinion “reaffirmed” that ICWA “serves the best interests of children and families” and thanked the federal government for fighting on behalf of their children.
“We are pleased that the court followed decades of legal precedent in its ruling, preserving a law that protects Indian children and allows them to retain their identity by staying within their families and tribal communities,” the tribes said.
In a statement, a spokesman for the Texas Attorney General’s Office said Texas is “disappointed” by the Fifth Circuit’s opinion, “which fails to provide justification for the federal government preventing Texas law from putting the interests of the children first.”
“While we are still reviewing the opinion, we anticipate seeking further appellate review of the important issues raised by this case,” the statement said.
Washington, D.C. lawyer Matthew McGill of Gibson, Dunn & Crutcher, who argued the case for the families in March, did not respond to a request for comment. Neither did Dallas lawyer Adam Charnes of Kilpatrick Townsend, who represents the four tribal intervenors.
A spokesman for the Department of Justice declined to comment on the ruling.
For an in-depth analysis on the parties’ oral arguments in March, review The Texas Lawbook’s previous report.