Lawsuit:Texas Attorney General Sues Federal Government Over Indian Child Welfare Act UPDATED

“The Texas attorney general has sued the federal government, seeking to challenge the Indian Child Welfare Act designed to prevent Native American children from being separated from their families.

Ken Paxton filed his lawsuit last week in federal court, arguing the ICWA passed in 1978 is unconstitutional and should be struck down. The attorney general filed the lawsuit on behalf of a Caucasian couple seeking to adopt a Native American boy.

“I’m suing the federal government today to protect the best interest of Texas children,” Paxton said in a prepared statement. “The Constitution makes clear that people are more than just their racial background. But ICWA elevates a child’s race over their best interest in a way that could endanger Texas children. Such an unconstitutional and dangerous law cannot stand.”

Paxton is suing on behalf of Chad and Jennifer Brackeen, foster parents with two biological children of their own who’ve been blocked from adopting a two-year-old Native American boy they’ve fostered for more than a year given ICWA’s provisions. In the Brackeens case, the law dictates that the boy live with an “…unknown Indian family from New Mexico,” according to Paxton’s lawsuit.

The attorney general claims the boy’s biological parents and grandmother support the would-be adoption. The suit filed in the U.S. District Court for the Northern District of Texas has among the defendants Ryan Zinke, the U.S. interior secretary whose department is tasked with implementing the adoption law.

“The Indian Child Welfare Act is unconstitutional, discriminatory and invades every aspect of Texas family law as applied to Native American children,” Paxton told the court. “It coerces state agencies and courts to carry out unconstitutional and illegal federal policy, and make child custody decisions based on racial preferences.”

Paxton’s challenge to the Native American adoption law isn’t the first time it’s been contested. A 2013 Oklahoma case made it all the way to the U.S. Supreme Court, which ruled a biological father had not parental rights to his three-year-old daughter because he abandoned her before birth, thus negating his custody.”

Paxton Sues Feds Over Native American Adoption Law

[Patch-Downtown Austin 10/29/17 by Tony Cantu]

REFORM Puzzle Piece

Update:“A federal appeals court has upheld the constitutionality of a 1978 law giving preference to Native American families in foster care and adoption proceedings involving American Indian children.

Friday’s decision by a panel of the 5th U.S. Circuit Court of Appeal upholds the Indian Child Welfare Act and reverses a Texas-based federal judge.

It comes in a case involving non-Indian families in multiple states who adopted or sought to adopt Native American children.

Opponents of the law called it an unconstitutional race-based intrusion on states’ powers to govern adoptions.

In October 2018, U.S. District Judge Reed O’Connor found that the Indian Child Welfare Act of 1978 illegally gives Native American families preferential treatment in adoption proceedings for Native American children based on race. He says that is a violation of the Fifth Amendment’s equal protection guarantee.

But the 5th Circuit majority disagreed, saying the law’s definition of an “Indian child” is a political classification.

The decision was a victory for supporters of the law who say it’s needed to protect and preserve Native American culture and families.

It is a law that has created headlines across Oklahoma following a very public adoption battle.

In 2013, all eyes were turned to the courts as judges decided the fate of a little girl nicknamed “Baby Veronica.”

Baby Veronica was put up for adoption by her mother after she says Veronica’s father signed away his parental rights.

“He let me know that he wanted to sign his rights away and that he had spoken to his family and they all agreed that that’s what would be best for him if that’s what he did,” Christy Maldonado said in 2013.

Maldonado said she chose a South Carolina couple to adopt her daughter.

After the Capobiancos legally adopted Veronica, her biological father, Dusten Brown, challenged the adoption.

Even though she lived with the couple for more than two years, the matter had to be decided by the court.

Veronica’s biological father used his status as a Cherokee Indian to challenge the adoption to try to get his daughter back two years after her adoption to the non-Native American couple from South Carolina.

The Cherokee Nation argued that she was protected under the Indian Child Welfare Act of 1978. According to the Indian Child Welfare Act, as long as the tribe considers you a member they have a voice in your adoption.

Ultimately, the U.S. Supreme Court ruled that Veronica should be sent to live with the Capobiancos in South Carolina.”

Law governing adoptions of Native American children upheld

[KFOR 8/10/19 by AP and Kaylee Douglas]