A legal team from Attorney General Ken Paxton’s office today presented oral arguments before the U.S. Court of Appeals for the 5th Circuit demonstrating that the Indian Child Welfare Act (ICWA) is unconstitutional. The law requires that a child’s ‘best interest’ – normally the governing inquiry in child welfare proceedings – be subordinated to racial considerations.

“State law requires courts to focus on placing children in the most loving and stable families possible, but ICWA requires that they disregard state law and compromise the well-being of Native-American children based on nothing more than their race,” Attorney General Paxton said. “Knowing the difficulties that await them if they attempt to adopt a Native child, many couples simply turn elsewhere at the outset. The tragic result is that Native children are deprived of loving families committed to their well-being. The federal government has no right to impose its illegal and discriminatory requirements on states. This separate and unequal system must go.”

The case centers on the Brackeen family, which attempted to adopt a young Native American boy after fostering him for nearly a year. Although virtually everybody interested in the boy’s welfare supported his adoption by the Brackeens, ICWA required that he be transferred hundreds of miles away to a Native American couple who he had never met and with whom he had no family ties. While the Native American couple ultimately withdrew its claim, the Brackeens challenged ICWA in federal court – in part because their son can still be stripped from them up to two years after the date the adoption went through.

The appeal before the 5th Circuit follows an earlier ruling from a federal district court that ICWA violates the 10th Amendment by commandeering state governments for federal purposes. It also agreed that the law discriminates based on race in violation of equal protection.

On March 1, 2019, a state court in Tarrant County found that the state statute requiring ICWA to be applied in Native American child custody proceedings violates the Texas Constitution. That case arose in the context of the Brackeens’ effort to adopt their son’s younger sister.