Indian Child Welfare Act currently at the en banc 5th Circuit

Link to the Opinion of the three Judge panel filed on August 9, 2019, overturning the Judgement of the District Court.

For the proceedings of the District Court that overturned the Indian Child Welfare Act, please refer to my previous thread from 2018.

On August 9, 2019, a three Judge panel of the Fifth Circuit overturned the judgement of the District Court. United States Circuit Judge James L. Dennis wrote for the majority, joined by Senior United States Circuit Judge Jacques L. Weiner Jr. United States Circuit Judge Priscilla Owen wrote an opinion concurring in part and dissenting in part from the majority decision, her dissent relating primarily to the anti-commandeering claims.

However, on November 7, 2019, the 5th Circuit granted en banc reconsideration, as per the link above. This action immediately vacated the judgement of the three Judge panel and for the moment restores the judgement of the District Court. We do not know what the vote was or how the Judges voted, other than a majority voted to grant en banc reconsideration. All we do know is that Judge Ho is recused.

Oral arguments have been held and the case has been briefed, so now we await the decision.

Below is the list of Judges, (excepting Ho) who are participating in the en banc reconsideration.

77 Chief Judge Priscilla Owen Austin, TX 1954 2005–present 2019–present G.W. Bush
63 Circuit Judge Edith Jones Houston, TX 1949 1985–present 2006–2012 Reagan
64 Circuit Judge Jerry Edwin Smith Houston, TX 1946 1987–present Reagan
71 Circuit Judge Carl E. Stewart Shreveport, LA 1950 1994–present 2012–2019 Clinton
73 Circuit Judge James L. Dennis New Orleans, LA 1936 1995–present Clinton
78 Circuit Judge Jennifer Walker Elrod Houston, TX 1966 2007–present G.W. Bush
79 Circuit Judge Leslie H. Southwick Jackson, MS 1950 2007–present G.W. Bush
80 Circuit Judge Catharina Haynes Dallas, TX 1963 2008–present G.W. Bush
81 Circuit Judge James E. Graves Jr. Jackson, MS 1953 2011–present Obama
82 Circuit Judge Stephen A. Higginson New Orleans, LA 1961 2011–present Obama
83 Circuit Judge Gregg Costa Houston, TX 1972 2014–present Obama
84 Circuit Judge Don Willett Austin, TX 1966 2018–present Trump
85 Circuit Judge James C. Ho Dallas, TX 1973 2018–present Trump
86 Circuit Judge Kyle Duncan Baton Rouge, LA 1972 2018–present Trump
87 Circuit Judge Kurt D. Engelhardt New Orleans, LA 1960 2018–present Trump
88 Circuit Judge Andy Oldham Austin, TX 1978 2018–present Trump
67 Senior Circuit Judge Jacques L. Wiener Jr. New Orleans, LA 1934 1990–2010 2010–present G.H.W. Bush

I have no idea how the en banc 5th Circuit will rule.

I do expect that the Supreme Court will weigh in on this regardless of how it finally turns out at the 5th Circuit. And if the en banc 5th Circuit strikes the law down, the chance of Supreme Court review rises to just about 100%.

Court ruled on Indian Child Welfare recently in Canada too, giving more power to the reservation and tribes to deal with it government is working to fix the system.

Don’t know about Canada, but in the U S, fetal alcohol syndrome (FAS) is a reason many indigenous are taken from their homes of origin.

Now to place them with stable family members should be the first response. But if alcoholism is affecting generations of family, shouldn’t placing children with fit potential parents who want and can raise children—white or whomever if not other indigenous—be prioritized over maintaining culture of origin?