Native children are far more likely to end up in state custody, and the Indian Child Welfare Act aims to keep them within Indigenous communities. Last fall, a federal district judge in Texas ruled ICWA was unconstitutional, calling it a “race-based law.” But on Friday the Fifth Circuit Court of Appeals reversed that decision.
Like most other federal court decisions dealing with ICWA, the Fifth Circuit stated that ICWA is based on a political classification, because tribes are sovereign governments within the United States.
“The district court concluded that ICWA’s ‘Indian Child’ definition was a race-based classification. We conclude that this was an error,” wrote Judge James Dennis. “We conclude, contrary to the district court’s determination, that ICWA’s definition of ‘Indian child’ is a political classification.”
Congress enacted ICWA in 1978 in response to widespread separation of Indian families through adoption or foster care placement. Today there are still a disproportionate number of Native kids in child welfare systems across the country. In Oklahoma, for example, the Dept. of Human Services says about 25 percent of foster children are Native American and Alaska Native, though they make up just 12 percent of the population under 18 years old.
Chrissi Ross Nimmo, Deputy Attorney General of Cherokee Nation, called the Fifth Circuit ruling “broad,” and she says its implications go beyond ICWA.
“Any law that applies to tribes or tribal citizens applies because of their status as unique sovereign entities and not because they're members of a racial group,” said Ross Nimmo.
Cherokee Nation was one of five tribes that appealed the Texas ruling. The federal government also stepped in to defend the law. And hundreds of tribes signed a brief in support of ICWA.
Ross Nimmo says there is a slim chance the case could go to the Supreme Court. The last time the Supreme Court took up a case involving ICWA was in 2013. The court’s ruling narrowed the circumstances in which ICWA can be applied, but it did not challenge the law’s constitutionality.