US Court of Appeals for Fifth Circuit to Rehear Indian Child Welfare Challenge

by Native News Online Staff

Breaking News 

Published November 7, 2019

NEW ORLEANS — Today, the United States Court of Appeals for the Fifth Circuit issued an order directing a challenge to the Indian Child Welfare Act (ICWA) to be reheard en banc -- before the entire Fifth Circuit.  As previously reported, a three-judge panel of the Fifth Circuit had held ICWA Constitutional in August, finding it was not a race-based statute that would violate the Equal Protection Clause.  The States of Texas, Louisiana, and Indiana, and several adoptive parents had urged the Court to set aside the August 9, 2019 decision and rehear the case, asserting similar arguments to the original briefing and that tribal membership is determined on an “overwhelmingly racial nature.”

The federal government filed a brief in response earlier this week, arguing that the plaintiffs “miss the fundamental point . . . [namely,] tribes have authority to set their own membership criteria, which may be based in part on biology or descent[.]”  The Cherokee Nation, Oneida Nation, Quinault Indian Nation, Morongo Band of Mission Indians, and Navajo Nation (Intervenor) filed an opposition to the petitions for rehearing en banc last month, as did the federal government.

Today’s order does not necessarily mean that the Fifth Circuit will find ICWA unconstitutional, but does vacate its earlier decision and add another round of briefing to the case – which is scheduled for December and January.  The Court seeks to hear oral argument during the week of January 20.

Related

Fifth Circuit Court of Appeals Reaffirms the Constitutionality of ICWA August 9, 2019

Fifth Circuit Court of Appeals Rules in Favor of the Navajo Nation in ICWA Case August 10, 2019

From an earlier post on this blog:

Stephen Pevar, senior counsel for the American Civil Liberties Union, says the whole point of enacting ICWA was to end decades of unnecessary removals of Indian children from their homes and communities.

“Congress held years of hearings [before enacting ICWA] and many Indians who were victims of state foster care cases testified,” said Pevar. “Based on that testimony and other research, Congress found that it is in the best interests of Indian children to be raised in an Indian home except in extraordinary circumstances. Therefore, the Goldwater Institute is wrong in saying that Congress overlooked the ‘best interest’ standard. Instead, Congress accepted that standard and concluded that there’s a presumption that it’s in the best interest of Indian children to be raised in an Indian home. In addition, the Supreme Court has already rejected the notion that ICWA creates racial discrimination when it imposes minimum federal standards on state courts in their handling of Indian child custody cases.”

But ICWA has come under assault in courts all over the country in the last several months, say legal experts, in states unwilling to deviate from the “business-as-usual” approach, in which an average adoption can bring anywhere from $40,000 to $100,000 in fees and costs for private adoptions, depending on various factors, including living expenses for the birth mother. here