The 5th U.S. Circuit Court of Appeals overturned the most recent federal district court case, Brackeen v. Bernhardt. (decision) The lower decision by Federal District Court of Texas held that the Indian Child Welfare Act was unconstitutional because it is a "race-based" law and it violated the equal protection clause. (The Indian Child Welfare Act is a federal law that tries to address past statistics where 25%–35% of all Native children were being removed, and of these, 85% were placed outside of their families and communities. ICWA imposes federal standards for removal and allows tribes to adjudicate these cases involving their own tribal members so the children are placed in their own tribes) The case was appealed to the 5th Circuit where the three-judge panel held that the federal district court's reasoning was flawed:
"The district court concluded that ICWA’s “Indian Child” definition was a race-based classification. We conclude that this was error."
The appeals court upheld the federal law that tribes are not raced based, but political entities with their own sovereignty. The Navajo Nation intervened through its Department of Justice. In conjunction with the Indian law firm Hogan and Lovells, the court of appeals agreed with the Navajo Nation. This is a win for Indian Country. However, this decision may be appealed to the United States Supreme Court. It's not entirely clear whether the SCOTUS are supportive of Indian Country or not. Over the past decades, they have had a bad record in terms of Indian Country. Kudos to our Navajo attorneys, Doreen McPaul of the Navajo DOJ, and her staff.
