Judges find preferences violate constitutional equal protection requirements
By Kevin McGill
Associated Press
NEW ORLEANS (AP) — Parts of a federal law giving Native American families preference in the adoption of Native American children were effectively struck down Tuesday by a sharply divided federal appeals court, a defeat for tribal leaders who said the 1978 law was important to protecting their families and culture.
The complex ruling from 16 judges of the 5th U.S. Circuit Court of Appeals upholds a lower court’s finding that the Indian Child Welfare Act’s preferences for Native American families or licensed “Indian foster homes” violate constitutional equal protection requirements.
It also said some of the provisions of the law “unconstitutionally commandeer” state officials’ duties in adoption matters.
However, the full implications of the decision on adoptive children in this and future cases were not immediately clear. Some of the key points were the result of 8-8 votes. The lack of a majority meant the lower court’s ruling prevailed on those points, but that no binding precedent was set by the appeals court.
Attorneys for both sides were reviewing the 325 pages late Tuesday. The case could wind up at the Supreme Court.
The 1978 law has long been championed by Native American leaders as a means of preserving Native American families and culture. In arguments last year, an Interior Department lawyer said Congress passed the law after finding that adoption standards at the state level were resulting in the breakup of American Indian families.
Opponents of the law include non-Native families who have tried to adopt American Indian children in emotional legal cases.
“Our clients brought this case to protect their families from being torn apart by a discriminatory federal law,” Matthew D. McGill, lead attorney for the plaintiff families, said in an email. “We are very pleased that today’s ruling has confirmed that ICWA’s discriminatory placement preferences are unconstitutional.”
Multiple couples seeking to adopt Native American children, a woman who wishes for her Native American biological child to be adopted by non-Natives, and the states of Texas, Louisiana, and Indiana were among the plaintiffs challenging the law.
The Tuesday evening ruling marked a reversal for the appeals court. A three-judge panel voted 2-1 to reverse the district court and uphold the law in 2019. But a majority of the 17-member court agreed to rehear the case. With one member recused, 16 judges heard arguments in the case last year.
The resulting decision included multiple partial dissents and partially concurring opinions. On some issues, a majority of the court agreed. On others, the court tied, meaning the original district court decision on the issue prevailed, although the appeals court ruling on the issues won’t be considered precedential in future cases.
