Federal court in Texas declares Indian Child Welfare Act unconstitutional

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A Northern Texas federal district court struck down portions of the Indian Child Welfare Act last Thursday, finding that the disputed sections violate the Fifth Amendment’s equal protection guarantee by mandating racial preferences.

In Brackeen v. Zinke, Judge Reed O’Connor of the court’s Fort Worth division ruled that the ICWA categorizes children in the child welfare system according to race, not membership or eligibility for membership in a tribe, making those provisions illegal racial preferences. He also struck down a portion of the ICWA that gives tribes the right to intervene in child welfare proceedings, as well as recently enacted regulatory rules implementing the ICWA.

“No matter how defendants characterize Indian tribes—whether as quasi-sovereigns or domestic dependent nations—the Constitution does not permit Indian tribes to exercise federal legislative or executive regulatory power over nontribal persons on nontribal land,” the judge wrote in his opinion.

Brackeen was filed not only by three foster families seeking to hold on to children and a birth mother of one of the children but also the states of Texas, Louisiana and Indiana, which say the ICWA usurps the authority of state child welfare agencies and courts. As the ABA Journal reported in October 2016, the ICWA is unpopular among some foster and adoptive families, as well as politically conservative interest groups. One such group, the Goldwater Institute, tried unsuccessfully to overturn the ICWA in a prior lawsuit, Carter v. Washburn.

Brackeen makes some of the same arguments (and was supported by an amicus brief from the Goldwater Institute). The plaintiffs argue that the ICWA violates equal protection rights by imposing a race-based test for where a child with a Native background should be placed: first with extended family, then other members of the child’s own tribe, then other Native people, and, if none of those options are available, to any other fit placement. Courts may depart from these preferences if they find good cause. This, the plaintiffs argued, is an impermissible race-based preference.

O’Connor agreed, rejecting arguments based on case law saying Indian status is a matter of political affiliation with a tribal government rather than race. Rather, the judge said, the ICWA uses ancestry as a proxy for race, which was forbidden in a 2000 Supreme Court decision, Rice v. Cayetano, on Native Hawaiian rights. The judge noted that the ICWA applies to children who are merely eligible for membership in a tribe and have a biological parent who is Native. That’s a racial requirement requiring strict scrutiny, the judge said, and the government didn’t show the ICWA was narrowly tailored enough to withstand that scrutiny.

The judge also found that the ICWA is an unconstitutional delegation of Congressional power to tribes, an argument made by the three states. The ICWA permits Indian tribes to intervene in state child welfare cases and dictate their preferred placements; the states argued that it therefore violates the Constitution’s mandate that all legislative powers are vested in Congress. O’Connor agreed, adding that the ICWA regulates states, not individuals, which is beyond Congress’s constitutional powers.

The federal Bureau of Indian Affairs released a brief statement Oct. 8 reiterating its support for the ICWA and opposing “any diminishment of ICWA’s protections for Indian children, families and tribes.” A joint statement from four Native American groups, including the National Indian Child Welfare Association, said the ruling ignores decades of precedent and the direct government-to-government relationships between tribes and states or the federal government.

The Goldwater Institute and Indian law professor Matthew L.M. Fletcher of the Michigan State University College of Law are expecting an appeal.




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