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5th Circuit upholds Indian Child Welfare Act as constitutional, reversing lower court

The appeals court overturned a 2018 decision from a federal district judge who ruled that the law, which gives adoption placement preference to Native American tribes, was unconstitutional. Texas Attorney General Ken Paxton challenged the law in 2017.

The Fifth Circuit Court of Appeal in New Orleans.

In a blow to the Texas Attorney General’s Office, a federal appeals court on Friday reversed a lower court’s October 2018 ruling that struck down as unconstitutional the Indian Child Welfare Act, a decades-old federal law that aims to keep Native American families together.

Arguing that the law “elevates a child's race over their best interest,” Texas sued in October 2017 on behalf of a non-Native couple from Fort Worth that wanted to adopt a Native American toddler they had fostered for more than a year, but were rebuffed during state adoption proceedings. ICWA gives placement preference in adoption cases to biological family members, other members of the child’s tribe and other Native American families. Passed in 1978, the law was Congress’ attempt to keep native families together at a time when as many as one-third of tribal children were being forcibly removed from their biological families through state welfare proceedings.

The couple, Chad and Jennifer Brackeen, have since successfully adopted the child, but their challenge to the law persisted. Last fall, a federal judge in North Texas ruled that the law violates constitutional principles of equal protection because it “uses ancestry as a proxy for race” and does not meet the high, “strict scrutiny” burden required for laws that rely on racial classifications.

But the New Orleans-based U.S. 5th Circuit Court of Appeals this week overturned that assessment, citing the federal government’s historical obligations to Native tribes in ruling that the law’s definition of “Indian child” should be interpreted as a “political classification” as opposed to a racial one.

The law and associated rules are “constitutional because they are based on a political classification that is rationally related to the fulfillment of Congress’s unique obligation toward Indians,” U.S. Circuit Judge James Dennis wrote for the three-judge panel. Dennis pointed to a large body of laws intended to protect Native American communities: “If these laws, derived from historical relationships and explicitly designed to help only 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 Indians would be jeopardized,” Dennis wrote, quoting an older case.

A coalition of tribal leaders, who have watched the case carefully, cheered the appeals court’s ruling, which they said “reaffirmed what we already knew: the Indian Child Welfare Act is constitutional and serves the best interests of children and families.”

“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,” Cherokee Nation Principal Chief Bill John Baker, Morongo Band of Mission Indians Chairman Robert Martin, Oneida Nation Chairman Tehassi Hill and Quinault Indian Nation President Fawn Sharp said in a joint statement. The four tribes had intervened in the case to defend the law. The law, they said, “ensures that we have a process in place focusing first and foremost on the welfare and safety of children.”

An additional 325 tribes and 57 tribal organizations submitted friend-of-the-court briefs backing the law.

A spokesman for the Texas Attorney General’s Office said Aug. 12 he anticipates the agency will appeal.

"We are disappointed in the panel’s decision which fails to provide justification for the federal government preventing Texas law from putting the interests of children first," said Marc Rylander, communications director for the attorney general's office. "While we are still reviewing the opinion, we anticipate seeking further appellate review of the important issues raised by this case."

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