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(SD)-Appeals Court To Rehear Indian Child Welfare Act Challenge

By: John Axtell Posted at: 11/08/2019 10:17 AM
NEW ORLEANS, La. (AP) - A federal appeals court announced Thursday that it will take a second look at an emotionally fraught lawsuit governing the adoption of Native American children.

      In August, a 3-judge panel of the New Orleans-based 5th U.S. Circuit Court of Appeals upheld the Indian Child Welfare Act of 1978, but now a majority of the active judges in the circuit has voted to re-hear the case as a whole. A hearing date has not been set.

      The vote by the judges means Native American tribes and the federal government will again have to defend the law, which they say is critical to protect and preserve Native American culture and families.

     The August ruling was seen as a defeat for non-Indian families in multiple states who had adopted or tried to adopt American Indian children.

      The lead plaintiffs in the lawsuit challenging the law are Chad and Jennifer Brackeen, a Texas couple who fostered a baby eligible for membership in both the Navajo and Cherokee tribes. The boy's parents voluntarily terminated their parental rights and the Brackeens petitioned to adopt him.

      After legal battles, they were able to keep him when a placement with a Navajo family fell through. They now hope to adopt his younger half-sister.Texas, Indiana and Louisiana have also joined the lawsuit, siding with the Brackeens and other would-be adoptive families.

      Defendants include the federal government and numerous intervening Native American organizations and tribes who back the law. They say that without it, many Native American children will be lost to their families and tribes.

       Opponents of the law called it an unconstitutional race-based intrusion on states' powers to govern adoptions, but 2 members of the 3-judge panel disagreed in August.

       The opinion said the law's definition of an "Indian child" is a political classification and a broad definition "extending 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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