In the 40 years since Congress enacted the Indian Child Welfare Act, the law has been criticized in legal challenges that have climbed all the way to the U.S. Supreme Court. But the ICWA, as the act is known, has always prevailed.

Now its constitutionality is being questioned again. On Thursday, the U.S. Court of Appeals for the 5th Circuit agreed to rehear a lawsuit filed by a non-Native American couple in Texas claiming the ICWA discriminates on the basis of race and infringes on states’ rights.

The federal law, passed in 1978, mandates that states prioritize placing Native American children up for adoption with members of their family, their tribe or other Native American families — a remedy to policies that had previously empowered the government to take native children from their parents without cause and eradicate their tribal identity.

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The Texas couple, Chad and Jennifer Brackeen, sued the U.S. Interior Department in 2017 after their petition to adopt a Native American toddler they had fostered for more than a year was challenged in state court. Texas Child Protective Services had removed the boy, called A.L.M. by the court, from the custody of his paternal grandparents and placed him in foster care with the Brackeens.

He lived with them for 16 months, according to court documents. They sought to adopt him with the support of his biological parents — members of the Navajo Nation and Cherokee Nation — and his paternal grandparents. The ICWA requires, however, that a child’s tribe be notified before an adoption placement is approved.

The Navajo Nation located a nonrelative Native American family in New Mexico willing to adopt the boy, though that placement ultimately fell through. The Brackeens eventually successfully petitioned to adopt A.L.M. and are trying to adopt his younger sister.

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Their suit was joined by state attorneys general from Texas, Louisiana and Indiana.

Texas Attorney General Ken Paxton (R) said last year that the ICWA unlawfully “elevates a child’s race over their best interest,” reported the Texas Tribune.

In October 2018, a federal judge in the Northern District of Texas agreed with their challenge, ruling that much of the ICWA is unconstitutional. Defendants in the case, including the federal government and the Morongo, Quinault, Oneida and Cherokee tribes, appealed the decision.

In March of this year, a panel of three judges on the 5th Circuit heard oral arguments in the case, and in August they ruled 2 to 1 to overturn the federal judge’s ruling. In their decision, Circuit Judge James L. Dennis wrote that the ICWA aimed to classify children not by race, but by politics. The definition of “Indian child” under the law is broad, he wrote, and extends “to children without Indian blood, such as the descendants of former slaves of tribes who became members after they were freed, or the descendants of adopted white persons.”

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The plaintiffs in the case chose to appeal the panel’s ruling, initiating a process that can kick the case back to a court of appeals and force the entire bench to hear it — rather than just three judges.

On Thursday, the 5th Circuit ruled to rehear the case “en banc,” writing that oral arguments will be scheduled at a later date.

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 Fawn Sharp issued a statement affirming their support of the ICWA:

“We never want to go back to the days when Indian children were ripped away from their families and stripped of their heritage. We continue to believe that the Fifth Circuit decision affirming the constitutionality of ICWA was the right decision. While it is unfortunate that the attacks on this critical law continue, we are confident that the court will once again uphold the constitutionality of ICWA, as courts have repeatedly done over the past 40 years. ICWA provides a process for determining the best interests of Indian children in the adoption and foster care systems, which is why it is overwhelmingly supported across the political spectrum. We remain devoted in our efforts to defend ICWA because our number one priority remains fighting for the well-being, health and safety of children and families.”

The day before the court’s decision, Paxton posted a video interview to his Twitter page with the Brackeens.

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The law, he wrote, “continues to be unconstitutional and has real, painful consequences for children and families.”

After the ruling, Marc Rylander, director of communications in the Texas attorney general’s office, wrote in a statement that “a child’s best interest should supersede politics and race.”

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“The Constitution makes clear that the law must never single anyone out for disparate treatment on the basis of their race,” Rylander said in the statement. “However, ICWA clearly coerces state agencies and courts to carry out an illegal federal policy based around a child’s race. This unconstitutional and dangerous law should not stand.”

Kathryn Fort, a Michigan State law professor and one of the nation’s foremost ICWA experts, told The Washington Post she thinks there are more important battles to wage on behalf of children.

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“Given that a federal judge this week fined Texas $50,000 a day until they fix their broken child welfare system,” Fort said, “it seems beyond the pale for them to try to continue to strike down a law that is designed to help children and families in that very system heal and reunify.”

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Fort said the court’s decision is disappointing, but it’s not the end. “State courts continue to apply the law in the hundreds of ICWA cases filed each year to protect Indian children and families,” she told The Washington Post.

The ICWA was passed in 1978 in response to what was viewed as a family separation crisis for American Indian and Alaska Native communities. Studies showed that 25 to 35 percent of all native children were being removed, and of them, 85 percent were placed in homes outside their families or tribes, according to the National Indian Child Welfare Association. This happened even when suitable family members were willing to foster or adopt.

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Those trends followed decades of mistreatment of Native American communities by the U.S. government, as The Post has previously reported.

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In 1869, as a way to end the violence inflicted by white settlers upon Native American land in the West, President Ulysses S. Grant implemented a “Peace Policy.”

“Let us have peace” had been his campaign slogan the previous year, and after his election, Native people were forcefully confined to reservations where they would become “civilized.” To sidestep the abuse and corruption within the government’s Indian Bureau, Grant awarded contracts to religious groups to run reservation boarding schools. Those would eventually be dominated by Catholic missionaries, who took Native children from their parents and placed them in classrooms where they were taught to dress, speak and pray like white people.

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Native people’s autonomy was further diminished in 1871, when the Indian Appropriations Act declared Native Americans wards of the state.

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The ICWA has faced challenges in court before, and one such case in 2013 was reviewed by the U.S. Supreme Court. The high court ruled 5 to 4 that Dusten Brown, a member of the Cherokee nation, did not have a right to his child because he had signed away his rights, though he claims he did so under misleading circumstances.

The justices instead granted custody to a white couple from South Carolina who had adopted the child while he was serving in the Army.

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