Federal judge in Texas strikes down substantial portions of the Indian Child Welfare Act

First link is to the news article, the second link is the the Opinion of the Court.

Case name is CHAD BRACKEEN, et al., Plaintiffs, v RYAN ZINKE, et al., Defendants, CHEROKEE NATION, et al., Intervenors-Defendants.

United States District Judge Reed Charles O’Connor of the Northern District of Texas, sitting at Fort Worth, issued a final summary judgement striking down substantial portions of the Indian Child Welfare Act.

The statutes in question required that Indian families, the Indian Tribe and then Indians in general be given preference in the adoption of Indian children. The Judge struck that down as an unconstitutional racial and ethnic preference. Indian children are now available for adoption, same as any other American child.

It will be very interesting going forward in this case on appeal and this one is a likely candidate for the Supreme Court docket in the October 2019 term.

Good, the government should be race neutral, they shouldn’t consider race period, for anything, its a meaningless distinction that isn’t even supported by science. People, are people.

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While I support the judgement of the court, I should note that the Indian Child Welfare Act was passed in a time period, 1978, when States, with the tacit encouragement (and funding) of the Bureau of Indian Affairs, were aggressively removing children from Indian families at a rate that could literally have driven some of the smaller tribes to extinction.

However, since that time, these abusive practices have stopped and are unlikely to start up again.

The Indian Child Welfare Act was needed at the time it was enacted, but I think that dispensing with it now will not cause harm to Indian Tribes.

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BTW, Adoptive Couple v Baby Girl was a major case regarding the Indian Child Welfare Act in 2013.

Interestingly, Scalia joined the liberal side in dissent, while Breyer joined the conservative side in the majority.

Weren’t the Mormons in on this? I seem to recall something about the Mormons specifically adopting as many native American kids as they could due to their religious beliefs.

If no biological relatives or members of an indigenous tribe express interest in adoption of such a child, why shouldn’t other American families be able to adopt indigenous children?

Perhaps it’s time for the Indian Child Welfare Act to be rescinded.

Interesting case, especially the Texas involvement.


The Residential Boarding Schools were an attempt to (forcibly) integrate Native American children into European culture and eliminate the transmission of native culture.

Well, that ended.

Then the Indian Child Welfare Act was enacted to give the tribes control over who raised their children.

So now, the fate of children, whose parents and relatives are from the poorest communities with least resources, is being decided by the courts seeped in European culture.

It reminds me of the old African American story that Lead Belly used to tell.
Mrs. Goose was walking down the road and Mr. Fox grabbed her and said “I’m gonna eat you for dinner”
“You can’t do that. It’s not legal” said Mrs. Goose
“You’re right. So, we will have a trial.” said Mr. Fox
And the judge was a fox and the jury and the lawyers were all foxes.

So, once again, assurances, in the form of treaties and laws, given to Native American tribes to protect their sovereignty and their survival as a tribe, a nation and a people, once again those assurances turn out not be be what what was promised. All perfectly correct and legal, according to the foxes’ courts.

Meanwhile, the US is opening camps to house children forcibly removed from their immigrant parents.

“Let me tell you Mr. Teacher, when you say you’ll make me right.
In 500 years of fighting, not one Indian has turned white” Floyd Red Crow Westerman

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Not surprisingly, tribal governments are not taking this decision very well and are already organizing for appellate litigation.


The link is to a news/opinion piece from the tribe’s point of view.

A breakdown as to how the Judge ruled on the individual claims against the Act:

  1. Fifth Amendment Equal Protection Claims - These claims were advanced solely by the individual plaintiffs, stating that the law instituted racial preferences requiring strict scrutiny. The Judge agreed and GRANTED these claims.

  2. Article I Non Delegation Claim - This claim was advanced solely by the State plaintiffs, stating that the law illegally delegated Congress’s Article I law making power to the Indian Tribes. The Judge agreed and GRANTED this claim.

  3. Tenth Amendment Anti-Commandeering Claim - This claim was advanced solely by the State plaintiffs, stating that the law illegally commandeered State agencies to carry out Federal Policy. The Judge agreed and GRANTED this claim.

  4. Administrative Procedure Act Claims - These claims were advanced both by the individual and State plaintiffs, stating that the rules advanced under the statute are unconstitutional because the law itself is unconstitutional. The Judge agreed and GRANTED these claims.

  5. Fifth Amendment Due Process Claims - These claims were advanced solely by the individual plaintiffs, stating that the Act’s racial preference disrupt family relationships solely on tribal membership. The Judge, stating that the Supreme Court has never applied this doctrine to foster families, disagreed and DENIED these claims.

  6. Indian Commerce Clause Claim - This claim was advanced solely by the State plaintiffs and is predicated on the Anti-Commandeering claim above. Since that claim was granted, this claim logically follows and the Judge GRANTED this claim.

For all intents and purposes, the denial of claim #5 is meaningless, this was a complete victory by the Plaintiffs, both the individual plaintiffs and the State plaintiffs led by the State of Texas.

Which I predict will be overturned based on the laws of white guilt and the Myth of the Noble Red Man.

This would be a good thing.

We have a small native American population in our area so when there is a child abuse case there are major headaches. The law mandates, probably because of the Indian Child Welfare Act, that Native American children who are removed from their parents for abuse reasons must be placed in a foster home that is Native American. But what do you do when you don’t have any Native American foster parents in the area? You can’t leave the kids with the parents due to the abuse or neglect but you also can’t legally place them anywhere that is available?