Indian Country is waiting for a ruling in a case that could abolish the law giving Native families priority for placing Native children in foster care.
A Texas couple along with attorneys general from Texas, Louisiana and Indiana challenged the Indian Child Welfare Act in the 2017 case Brackeen v. Bernhardt. A Texas federal district court ruled the law unconstitutional in 2018, but that decision was overturned by a three-judge panel of the Fifth Circuit Court of Appeals in New Orleans. Now, the entire court is reviewing that ruling.
Texas Solicitor General Kyle Hawkins argued before the court the law violates precedent set in New York v. United States that Congress can’t bypass state legislatures.
"ICWA § 1915 (a) says in an adoption proceeding, 'under state law, a preference shall be given.' That phrase, 'under state law,' is the dead giveaway that ICWA is rewriting substantive state law in contravention of New York," Hawkins said.
Arguing for the United States, attorney Eric Grant said the Indian Child Welfare Act does not leapfrog or hamstring state courts as plaintiffs also alleged.
"In its proper sphere, Congress can confer jurisdiction on the lower federal courts. But, again, took a middle ground here, left these proceedings — most of these proceedings — in state courts and merely prescribed federal rules of decision," Grant said.
Attorney Adam Charnes argued for the Cherokee Nation and three other tribes named in the lawsuit.
"The key point is whether Congress had authority in this area, and they did have as much authority as they did in the Adoption and Safe Families Act of 1997 and the extensive regulation of state foster care and adoption procedures in Title IV of the Social Security Act," Charnes said.
The Indian Child Welfare Act was enacted in 1978 in response to a crisis of Native children being removed from their communities.
There’s no word on when a ruling is expected from the court in New Orleans.
