The Navajo and Brackeens have appealed. A state appeals court ordered a new trial.
Meanwhile, the federal case made its tortuous way through two levels of the United States Court of Appeals for the Fifth Circuit, which issued a fragmented opinion that found that the law was largely, but not entirely, constitutional.
As the case was litigated, support for the law grew. A brief filed by the Native American Rights Fund has been endorsed by 497 tribes. Other briefs were signed by 87 members of Congress and 23 states and the District of Columbia. The American Academy of Pediatrics, the American Medical Association and the American Psychological Association submitted briefs saying the law helped repair physical and psychological trauma.
The ICWA challengers also garnered support. Ohio and Oklahoma weighed in, saying the law violated state autonomy. Lawyers working in the area of adoption and reproductive rights filed briefs. The same was true for the Christian Alliance for Indian Child Welfare, based in North Dakota, and the Goldwater Institute, a conservative political center in Arizona, where reservations cover almost 30% of the territory; they argued that the law was racially discriminatory.
The tribes note that, like any political entity, they each have their own criteria for citizenship. To be a Navajo citizen, for example, one must be at least 25% blood related. Some tribes specify matrilineal descent, others patrilineal. Others, like the Cherokee, say what matters is evidence of lineage traceable to an original source list such as the Dawes lists, compiled late 19th century tribal membership lists, in fact , by the federal government.
Beyond the racial argument, the Brackeens and Texas made a second, narrower assertion, which some legal experts say the Supreme Court could take as a compromise approach. The ICWA imposes federal law on state family courts, whose role is to apply state law to child protection cases. Texas says the ICWA therefore violates the 10th Amendment, which protects states from federal government excesses.
But the welfare of Native children has always been a federal responsibility, said Maggie Blackhawk, a New York University Law School professor and lead author of a pro-ICWA brief for the American Historical Association. In the 1930s, for example, when the federal government tried to shut down its boarding schools and shift child care to the states, “the states resisted saying, ‘No, those aren’t our children,'” she said. adding that the states did not want to bear the financial burden because they lacked the power to tax the tribes and recover their expenses.
If the Supreme Court strikes down ICWA for excess of power, states can adopt their own versions, as at least 10 have already done so. But if judges hit him for racial discrimination, states would struggle to write similar legislation.
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