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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.”
– ABAJournal, Federal court in Texas declares Indian Child Welfare Act unconstitutional.
“The landmark law governing adoptions of Native American children, designed to keep them within Native American families, has been struck down as unconstitutional by a federal judge in Texas.
In an Oct. 4 ruling that has stunned Native American rights advocates, U.S. District Judge Reed O’Connor found that the Indian Child Welfare Act of 1978 illegally gives Native American families preferential treatment in adoption proceedings for Native American children based on race, in violation of the Fifth Amendment’s equal protection guarantee.
Additionally, O’Connor ruled that the law violated the 10th Amendment’s federalism guarantees, specifically the “anti-commandeering” principle established by the Supreme Court most recently in a 2018 sports gambling case, Murphy v. NCAA et al, which bars Congress from “commanding” states to modify their laws. In this case, O’Connor found that the ICWA “offends the structure of the Constitution” because it requires state courts to implement a policy “unequivocally dictated” by the federal government. The same doctrine has been used by at least two federal courts, in Pennsylvania and California, to block the Trump administration’s crackdown on “sanctuary cities.”
The ruling is a victory in the eyes of state attorneys general in Texas, Louisiana and Indiana, who argued the Indian Child Welfare Act imposed a “discriminatory framework” against nonnative adoptive parents. But in the eyes of Native American rights attorneys, the ruling is destructive, with an impact that may stretch far beyond the ICWA.”
– The Washington Post, Court strikes down Native American adoption law, saying it discriminates against non-Native Americans.
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Indian Country 52
Indian Country 52 is a weekly project by David Bernie that uses the medium of posters that promote issues and stories in Indian Country.
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This work by David Bernie is licensed under a Creative Commons Attribution-NonCommercial-NoDerivatives 4.0 International License. You may download, share, and post the images under the condition that the works are attributed to the artist.
