Family Law

In 325-page opinion, en banc 5th Circuit splits on preference for tribes in Native American adoptions

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A case challenging a federal law giving Indian tribes preference in Native American adoptions could wind up before the U.S. Supreme Court, after a federal appeals court issued a fractured, 325-page en banc opinion Tuesday.

The full 5th U.S. Circuit Court of Appeals at New Orleans ruled in an opinion that split 8-8 on several key aspects of the law, the Indian Child Welfare Act, report the Associated Press, Law360 and Indian Country Today.

One split: The appeals court was not able to agree on the constitutionality of the law’s preference for placing children with “other Indian families” or with a licensed “Indian foster home,” according to the court’s per curiam summary.

The even split on that point leaves in place a federal judge’s decision that the preferences violate equal protection guarantees—but creates no binding precedent.

The per curiam summary also reported:

• An en banc majority ruled that Congress had the authority to enact the law.

• An en banc majority ruled that some of provisions unconstitutionally commandeer the states, including a provision that “active efforts” be made to prevent the breakup of Indian families and another provision requiring expert witness testimony in cases seeking to remove children from allegedly abusive homes.

• The court split on whether placement preferences unconstitutionally commandeer the states in some circumstances, leaving in place a federal judge’s ruling that the preferences are unconstitutional under the commandeering doctrine.

• A majority ruled that several federal provisions validly preempt state law, including provisions granting a right to appointed counsel and a right to intervene in state child custody proceedings.

Native American leaders have praised the law as a way to preserve Native American families and culture. Opponents include families seeking to adopt Native American children who did not benefit from preferences. Plaintiffs challenging the law included several couples who wanted to adopt or foster American Indian children, as well as the states of Texas, Louisiana and Indiana.

The Associated Press and Law360 received an email statement from Matthew D. McGill of Gibson, Dunn & Crutcher, the lead lawyer for plaintiffs who challenged the law.

“Our clients brought this case to protect their families from being torn apart by a discriminatory federal law,” McGill said. “We are very pleased that today’s ruling has confirmed that ICWA’s discriminatory placement preferences are unconstitutional.”

A statement by leaders of some tribes who intervened in the case said they were “pleased to see the court upheld important aspects” of the law, according to Law360.

Writing at the Volokh Conspiracy, Josh Blackman, a professor at the South Texas College of Law, called the decision “badly, badly fractured.” Suggesting that the case could reach the Supreme Court, he wrote, “I pity the clerk who has to write this cert pool memo.”

Mary Kathryn Nagle, a lawyer who specializes in federal Indian law, told Indian Country Today that the court could have answered the legal questions in a 10- or 20-page legal decision.

“Things that are clearly within Congress’ constitutional authority when it comes to Indian affairs have been made incredibly messy and complicated,” she said.

If the case reaches the Supreme Court, “there is an opportunity here,” Nagle told Indian Country Today. “We’re in a new era where, especially with the addition of Justice Neil M. Gorsuch, there is an opportunity for other justices, who maybe haven’t approached Indian law with the intellectual rigor that it deserves, to see Indian law in its true light.”

Gorsuch has joined with majorities that favored Indian tribes in a tax case and in a hunting rights case. He also wrote the decision holding that a large part of eastern central Oklahoma is an American Indian reservation.

The 5th Circuit case is Brackeen v. Haaland. It was formerly captioned Brackeen v. Zinke.

Hat tip to How Appealing.

See also:

ABA Journal: “Lawsuits dispute whether the Indian Child Welfare Act is in the best interests of children” “State appeals court upholds girl’s placement with relatives in high-profile Indian adoption case” “SCOTUS turns down Indian Child Welfare Act challenge brought by foster parents of Choctaw girl” “Foster family vows appeal after losing custody of girl, 6, in fight over Indian child welfare law”

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