Tribal leaders are reacting after a split panel of 16 judges of the Fifth U.S. Circuit Court of Appeals struck down and upheld provisions of the Indian Child Welfare Act Tuesday, with a 325-page opinion that could push the case to the Supreme Court.

While the court held that Congress had the authority to adopt ICWA – a law that gives Native American families and tribes preference in the adoption of Native children – it also upheld a trial court’s finding that ICWA’s rules requiring Native children to be adopted by “other Indian families” or be placed in “Indian” foster homes is unconstitutional. Because the judges could not come to an agreement on the preference provisions of ICWA, the lower court’s original ruling that they violate equal protection requirements prevailed, but no precedent was set for consideration in future cases.

The ruling also held that some of ICWA’s provisions unconstitutionally commander state adoption proceedings.

In response to the rehearing, Cherokee Nation Principal Chief Chuck Hoskin Jr., Morongo Band of Mission Indians Chairman Robert Martin, Oneida Nation Chairman Tehassi Hill, and Quinault Indian Nation President Guy Capoeman issued a joint statement.

“As we review the latest decision from the Fifth Circuit, our tribes remain committed to fighting for the Indian Child Welfare Act and ensuring that all of its provisions are upheld,” the tribal leaders said. “While the decision is long, we are pleased to see the Court upheld important aspects of ICWA. We appreciate the law’s overwhelming support across the political spectrum and will consider all of our options to ensure we never go back to the days when Indian children were ripped away from their families and stripped of their heritage. It is deeply troubling that the attacks on this critical law continue, but we are prepared to continue our work to defend ICWA.”

The Indian Child Welfare Act, established in 1978, was enacted by Congress after finding that an alarmingly high percentage of Indian families are broken up by the removal, often unwarranted, of their children from them by non-tribal public and private agencies. For years, tribal leaders have lauded it as a tool for preserving Native culture and preventing unwarranted removals.

The ruling stems from a 2017 case in which a couple from Texas, along with the state attorney generals in Texas, Louisiana, and Indiana, sued the U.S. Department of Interior to challenge ICWA. In 2019, the Fifth Circuit reaffirmed that the law is constitutional. The plaintiffs then requested an en banc rehearing before the Fifth Circuit.

In Circuit Judge James L. Dennis’s opinion, he called the case an ironic situation, citing that 26 states and the District of Columbia do not view ICWA as any sort of burden on their child welfare systems.

“They strongly contend that ICWA is constitutional and have no problem applying it in their state court systems; indeed, they view ICWA as the ‘gold standard’ for child welfare practices and a ‘critical tool’ in managing their relationships with the Indian tribes within their borders,” Dennis wrote. “Conversely, only four states with relatively few tribes and Indians regard ICWA as offensive to their sovereignty and seek to have the law struck down completely because it intrudes upon their otherwise unimpeded discretion to manage child custody proceedings involving Indian children.”

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