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Federal appeals court upholds landmark Native adoption law, reversing Texas court’s decision

A federal appeals court on Friday upheld the longstanding adoption law that seeks to keep Native children with Native families, reversing the decision of a lower court judge in Texas who last year struck down the law as unconstitutional.

The 46-page decision protecting the Indian Child Welfare Act, issued by the U.S. Fifth Circuit of Appeals, is a victory for hundreds of tribes — including in Alaska — that had argued in support of the law, said Erin Dougherty Lynch, an attorney with the Native American Rights Fund in Alaska.

“It’s a big decision for federal Indian law," Lynch said Friday.

The appeals court ruled that ICWA is in fact constitutional because it is “based on a political classification that is rationally related to the fulfillment of Congress’s unique obligation toward Indians," the decision says. The law also “preempts conflicting state laws."

The decision overturns the October ruling by U.S. District Judge Reed O’Connor of Texas that ICWA was unconstitutional on multiple grounds and discriminated against non-Natives hoping to adopt a Native American child.

A key holding by the appeals court is that ICWA is not based on race, said Dougherty Lynch. If the court had found otherwise, its decision could potentially affect all laws that Congress has passed relating to tribes and Native people, she said.

ICWA prioritizes placement of Native American children in their family, tribe or in another Native home. The case grew out of the court challenges faced by a Texas couple, Chad and Jennifer Brackeen, as they sought to adopt a Native American child they had been fostering.

They sued the federal government. Four Indian groups from the Lower 48 joined the federal government as intervenors.

The 1978 law was passed after Native American children were being removed from homes at high rates by public and private agencies. It sets federal requirements for state child custody cases involving children in tribes or eligible for tribal membership.

In January, the state, Alaska’s congressional delegation and tribal organizations filed “friends of the court” briefs in support of the law, though they were not parties in the case.

Lynch helped write an amicus brief signed by 325 tribes nationwide, including more than 90 in Alaska. Dozens of Alaska Native organizations also signed on, including the Alaska Federation of Natives and the Alaska Native Tribal Health Consortium.

U.S. Sens. Lisa Murkowski and Dan Sullivan, as well as Rep. Don Young, signed onto an amicus brief in support of the law with five other members of Congress. The state of Alaska also joined several other states filing an amicus brief supporting the law, with Attorney General Kevin Clarkson signing onto that.

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