Attorney General Ken Paxton today commended the 323rd Family District Court in Tarrant County after it held a Texas law requiring family law judges to apply the federal Indian Child Welfare Act (ICWA) in child custody proceedings involving Indian children is unconstitutional. The case involves a non-Native American Texas married couple – Chad and Jennifer Brackeen – seeking to adopt their second Native American child.
Specifically, District Judge Alex Kim wrote that a Texas statute that requires application of ICWA instead of the Texas Family Code in Indian child custody proceedings violates the Texas Constitution. The Texas Family Code provides that all cases of custody and adoption must focus on the best interest of the child, and prohibits racial discrimination in child custody cases. However, ICWA – which Congress enacted – mandates differential treatment of children based on their race when those children are from federally recognized Native American tribes, regardless of whether the placement is in the best interest of the child.
“Today’s ruling further illustrates that ICWA unlawfully attempts to coerce state agencies and courts to carry out unconstitutional and illegal federal policy of deciding custody based on race – a convincing argument we’re eager to make before the U.S. Court of Appeals for the 5th Circuit on March 13,” Attorney General Paxton said. “I’m confident the 5th Circuit will ultimately uphold last year’s federal court decision that declared ICWA unconstitutional and discriminatory.”
In October 2017, Attorney General Paxton, acting on behalf of Texas, Indiana, and Louisiana, filed a federal lawsuit alongside the Brackeens challenging the constitutionality of ICWA. In January 2019, Attorney General Paxton filed a friend-of-the-court brief in support of the Brackeens in Tarrant County District Court, arguing that ICWA is unconstitutional.