Photo By: Johnny Saldivar

August 10, 2019; Indian Country Today and Texas Tribune

Last Friday, “The 5th Circuit Court of Appeals unanimously voted to uphold the constitutionality of the Indian Child Welfare Act [ICWA]; overturning a lower district court’s decision,” writes Kolby KickingWoman in Indian Country Today.

The decision, made by a three-judge panel of Jacques Loeb Wiener Jr, James Dennis, and Priscilla Richman Owen, reverses a lower court ruling by Judge Reed O’Connor. (Owen and Wiener were both Republican appointees, while Dennis was named to the Court by President Bill Clinton.) O’Connor in his ruling had claimed that giving American Indian parents preference in adoption cases of American Indian children violated the equal protection clause of the US constitution. As Rebecca Nagle of Indian Country Today noted at the time, prior to the law’s passage in 1978, “25 to 35 percent of Native children had been taken away from their families and were being raised in non-Native homes. Native American tribes lost a third of one generation.” Today’s ruling helps keep such practices from being revived.

As NPQ noted last October, the case in question, Brackeen v. Zinke, originated in the adoption of a two-year old Cherokee and Navajo boy by a white couple, the Brackeens, in Northern Texas. The Brackeens won their case, and the child still resides with them. But subsequently, the states of Texas, Louisiana, and Indiana, along with two other adoptive couples, joined with the Brackeens to seek to have the entire ICWA declared unconstitutional.

In the appeals court ruling authored by Judge Dennis, however, Emma Platoff of the Texas Tribune indicates that Dennis found both the law and associated rules to be constitutional “because they are based on a political classification that is rationally related to the fulfillment of Congress’s unique obligation toward [American] Indians.” Dennis adds, “If these laws, derived from historical relationships and explicitly designed to help only [American] Indians, were deemed invidious racial discrimination, an entire Title of the United States Code (25 U.S.C.) would be effectively erased and the solemn commitment of the Government toward the [American] Indians would be jeopardized.”

Dan Lewerenz, an attorney at the Native American Rights Fund, told Indian Country Today, “The 5th Circuit recognized the constitutionality of ICWA.” Lewerenz added, “We hope this is the end of this litigation.”

Sarah Kastelic, executive director of the National Indian Child Welfare Association, calls the ruling “a strong affirmation of the constitutionality of ICWA and the inherent tribal authority to make decisions about the well-being of member children, whether they live on or off of tribal lands.”

Kevin Allis, CEO of the National Congress of American Indians, praised “the efforts of the intervening tribes—the Cherokee Nation, Morongo Band of Mission Indians, the Navajo Nation, the Oneida Nation, and the Quinault Indian Nation”—for taking the lead in defending the ICWA.

The case has attracted widespread attention throughout Indian Country. Platoff reports that a total of 325 American Indian nations and 57 tribal organizations submitted friend-of-the-court briefs backing the law.

Although the Court of Appeal decision is a big step that boosts the position of American Indian nations, the Texas attorney general’s office has pledged to appeal. So, as KickingWoman acknowledges, “It is not yet known if this will be the last word in this long legal battle.”—Steve Dubb