After initially upholding the Indian Child Welfare Act (ICWA) in August, the 5th Circuit Court of Appeals has announced that it will re-hear legal challenges against the federal law.
Since 1978, ICWA has required that tribal nations have a seat at the table in custody, adoption and foster care proceedings involving Native children, and that a Native child's family and tribal members be given adoption preference over non-Native people.
Brackeen v. Bernhardt takes aim at ICWA's constitutionality, arguing that it discriminates based on race. But more than 300 tribes across the country, including 16 in the Mountain West, have signed on to a legal brief rejecting that argument.
"Membership in a tribe is a political classification. It's not a race-based classification," said Jonathon Sanchez, Attorney General for the Eastern Shoshone Tribe.
ICWA only applies to children who are citizens of a federally recognized tribe, or who are deemed eligible for citizenship. Since tribes have the authority to determine their own enrollment requirements, Sanchez said tribal citizenship isn't intrinsically tied to race.
"All of the tribes understand that. To make the argument that [ICWA] is race-based, you have to have a willfully blind view of history," Sanchez said.
Shelley Mbonu, ICWA director for the Northern Arapaho Tribe, said the lawsuit ignores a decades-long pattern of Native children being removed from their families and tribal communities.
"We don't need any more lost children," Mbonu said, referring to Northern Arapaho children who were forced to attend assimilationist boarding schools or adopted out of the tribe throughout the 20th century. In 1978, when ICWA was passed, studies showed that up to 35 percent of Native children were being placed in foster homes.
"This is about children who have a right to be raised in their culture. We don't need a repeat of that history," Mbonu said.
The states of Texas, Louisiana and Indiana are plaintiffs in Brackeen v. Bernhardt, as well as a white Texas couple fighting to adopt a Navajo child. The 5th Circuit Court of Appeals has tentatively set oral arguments in the case to begin the week of January 20th in New Orleans, Louisiana.
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