Both the Navajo and Brackens appealed. A state appeals court ordered a new trial.
Meanwhile, the federal case made its tortuous way through two levels of the United States Court of Appeals for the Fifth Circuit, which issued a split opinion that found the law largely, but not entirely, constitutional.
As Problem prosecuted, Support the law A wide short The filing by the Native American Rights Fund was supported by 497 tribes. Other briefs were signed by 87 members of Congress and 23 states and the District of Columbia. The American Academy of Pediatrics, the American Medical Association and the American Psychological Association submitted briefs that the law helped address physical and psychological trauma.
ICWA’s challengers also gathered support. Ohio and Oklahoma said the law violated state sovereignty. Attorneys working in adoption and reproductive rights filed briefs. So did the Christian Alliance for Indian Child Welfare, based in North Dakota. Goldwater InstituteA conservative policy center in Arizona, where reservations cover about 30 percent of the land. He argued that the law was Racial discrimination.
Tribes note that, like any political entity, they each have their own criteria for citizenship. To be a Navajo citizensFor example, at least 25 percent should be related to blood. Some tribes specify matrilineal descent, others patrilineal. Others, e.g CherokeeThey say that what matters is evidence. Ancestry List of original sources eg Dawes RuleIn the late 19th century tribal membership lists were, in fact, compiled by the federal government.
Beyond the racial argument, Brackens and Texas make a second, narrower claim, which some legal experts say the Supreme Court could adopt a compromise approach. ICWA imposes federal law on state family courts, whose role is to apply state law to child welfare cases. Texas argues that ICWA therefore violates it. 10th Amendmentwhich protects states from federal overreach.
But the welfare of Indigenous children has always been a federal responsibility. Maggie Blackhawka professor at New York University School of Law and the primary author of a ICWA Pro-Brief For the American Historical Association. In the 1930s, for example, when the federal government tried to close its boarding schools and transfer child care to the states, “the states resisted, saying, ‘No, they’re not our children. ,'” he said, adding that the states did not want to bear the financial burden because they did not have the authority to tax the tribes and pay their own expenses.
If the Supreme Court strikes down ICWA as overreaching, states can pass their own versions, such as at least 10 have already done so.. But if judges strike it down as racially discriminatory, states will be hard pressed to enact similar legislation.