Federal judge in Texas strikes down Indian Child Welfare Act
S E E D E D C O N T E N T
A federal judge in Texas has struck down the Indian Child Welfare Act, a decades-old federal law aimed at keeping Native American families together.
Backed by the state of Texas, Chad and Jennifer Brackeen — a non-Native American couple with two biological children — sued last October for the right to adopt a Native American toddler they had fostered for more than a year. A state court had denied their adoption petition; the federal law gives adoption placement preference to biological family members of Native American children, other members of the child’s tribe, or other Native American families.
Texas Attorney General Ken Paxton sided with the Brackeens, arguing that the law unlawfully “elevates a child’s race over their best interest.”
The Brackeens have since adopted the child and settled their case, but the challenge to the law itself pressed on. Texas, along with Louisiana and Indiana, argued that the law unconstitutionally discriminated on the basis of race and infringed on states’ rights to oversee their own child welfare proceedings.
U.S. District Judge Reed O’Connor on Thursday sided with Texas, ruling that the law is unconstitutional.
Passed in 1978, the law aims to preserve the integrity of Native American tribes. It came at a time when as many as one-third of tribal children were forcibly removed from their biological families in state welfare proceedings, a group of tribal leaders said Friday. Many of those removals were “wholly unjustified,” said representatives from the Cherokee Nation, Morongo Band of Mission Indians, Oneida Nation and Quinault Indian Nation in a statement condemning O’Connor’s decision.
“These policies devastated tribal communities and we refuse to go back to those darker days,” the group leaders said. “If ICWA is struck down in whole or in part, the victims will be our children and our families, Native children and Native families.”
The leaders, who had intervened in the case, said they are “exploring all available options,” including a stay to maintain the status quo temporarily, as well as an appeal to a higher court.
The Indian Child Welfare Act has long been a controversial law, seeking to balance tribal integrity and thorny child welfare decisions. In 2013, an Oklahoma case involving the law made it to the Supreme Court; the case left the law intact.
Paxton cheered O’Connor’s decision, arguing it protects state sovereignty as well as “the best interest of Texas children.”
“ICWA coerces state agencies and courts to carry out unconstitutional and illegal federal policy, and decide custody based on race,” Paxton said in a statement Friday.
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Guess AG Ken Paxton really doesn't understand the law as well as he thinks he does.
ICWA is a political based law - not a race-based law. Native American/Indian tribes/nations are not races - they are political bodies as stated within the Constitution.
"The political status of tribes arises from hundreds of years of treaties and engagements among governments. In the case of the Cherokee Nation, treaties date back at least to 1721, revealing almost 300 years during which the tribe has been legally acknowledged as a sovereign with the right and responsibility to take care of its citizens. This is the very same right that Congress recognized in ICWA and that the Cherokee Nation, along with 567 other tribes, is enforcing today.
It is the prerogative of a government to determine its citizenship requirements. The Cherokee Nation Constitution provides, in relevant part, “All citizens of the Cherokee Nation must be original enrollees or descendants of original enrollees listed on the Dawes Commission Rolls.” The Dawes Rolls were compiled in 1907 to determine eligibility for individual allotments of Cherokee lands.
Tribes vary with respect to the census, roll, or other list they use, and whether or not they have a “blood quantum” requirement. To find out what the rule is for enrollment in a particular tribal nation, you look up the constitution or legal code of the tribal government, usually available on its website. The tribe administers enrollment proceedings that require the production of documents, not totally unlike U.S. citizenship or state residency processes, and if successful, the tribal member receives an identification card conferring eligibility for various benefits. This process is not a mystery. It is not a baby elephant. It is federal Indian law.
This history and its ongoing expression in federal Indian policy underscores the distinctly political nature of Indian status today . It also explains why, as the Supreme Court held in Morton v. Mancari , the traditional notions of “race” that inform equal protection law do not and should not invalidate statutes enacted for the benefit of Indian tribes and tribal members. The Multi Ethnic Placement Act has exceptions for ICWA cases because being a member of a federally recognized tribe is not an ethnicity or race."
I am not well versed on this but it sounds like taking away Indian nation sovereignty and putting their welfare into the hands of the state.
Unfortunately there are many in Congress who still haven't grasped the fact that Indian Tribes/Nations are sovereign and have been since the beginning of time.
Paxton also took the side of a Texas School District that mandated students had to stand and participate during the Pledge of Allegiance.
Being wrong is nothing new to him.
Previously a PITA to the Obama Admin,
On October 5, 2018, O'Connor overturned 250 years of Indian sovereignty law and ruled that the Indian Child Welfare Act was unconstitutional. The ICWA was a 40-year-old landmark piece of legislation protecting tribal children from exploitation, designed to keep Native families together, and inspired by an attempt to reverse decades of state courts stripping Native children away from Native families. O'Connor's ruling ignored decades of direct federal government-to-government relationship and precedent that have upheld tribal sovereignty and the rights of Indian children and families.
O'Connor is also in the position to end the ACA , Obamacare as we know it.
federal-judge-sympathetic-to-lawsuit-to-end-obamacare
Who is O'Connor? Sandra Day??? She retired in 2006 and has no authority to overturn any Federal/SCOTUS cases.
Your link to the Examiner has nothing regarding her overturning ACA either.
U.S. District Judge Reed O’Connor, your ICWA killer.
Not killed - will be appealed and overturned. Federal District judges don't have the power/authority or override/overrule Federal law regardless of what they think of themselves.
I couldn't agree more! Good article.
Yet as the article states, the plaintiffs 'won' and were allowed to adopt the child. The longer this goes on, the more detrimental effect it will have on the child...
We/'re going to be seeing a lot more of this sort of tghing in the future...in fact, for many years!
There's been a lot of focus on Trump's Supreme Court nominees, but since he's taken office, Trump has appointed lots of justices to lower courts-- all meeting his racist right-wing standards!
I agree. We are going to see a lot more of this.
O'Connor is a Bush appointee.