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Law governing adoptions of Native American children upheld

Navajo children at Canyon de Chelly. (Photo by Horst Goertz, cc-by-sa-3.0, https://bit.ly/2ZYwpdY)

Navajo children at Canyon de Chelly. (Photo by Horst Goertz, cc-by-sa-3.0, https://bit.ly/2ZYwpdY)

NEW ORLEANS – A 1978 law giving preference to Native American families in foster care and adoption proceedings involving American Indian children is constitutional, a federal appeals court ruled Friday, reversing a lower court judge in a case fraught with emotional arguments over adoptive families being "torn apart" and the urgency of protecting tribal families and cultures.

The decision from a three-judge panel the 5th U.S. Circuit Court of Appeal in New Orleans upholds the Indian Child Welfare Act in a lawsuit 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. But the 5th Circuit majority disagreed, saying the law's definition of an "Indian child" is a political classification.

The opinion by Judge James L. Dennis said the U.S. Supreme Court has long recognized that Congress has broad power to regulate Native American tribes. And it said the act's definition of Indian child is broad.

"As Defendants explain, under some tribal membership laws, eligibility extends to children without Indian blood, such as the descendants of former slaves of tribes who became members after they were freed, or the descendants of adopted white persons," Dennis wrote. "Accordingly, a child may fall under ICWA's membership eligibility standard because his or her biological parent became a member of a tribe, despite not being racially Indian."

The decision was a victory for the U.S. Justice Department, which defended the law, and supporters who say the law is needed to protect and preserve Native American culture and families.

"We are pleased that the court followed decades of legal precedent in its ruling," leaders of the Cherokee, the Morongo Band of Mission Indians, the Oneida Nation and the Quinault Nation said in a joint press release.

Tyson Johnston, vice president of the tribal council of the Quinault Indian Nation in Tahola, Washington, was one of numerous tribal representatives who attended arguments in New Orleans in March. "This serves the best interest of our native children and families," he said in a telephone interview.

The ruling's immediate effect on adoptive families was unclear. Matthew McGill, an attorney who represented four families was not immediately available for comment Friday evening.

The lead plaintiffs in the lawsuit challenging the law are Chad and Jennifer Brackeen, a Texas couple who fostered a baby eligible for membership in both the Navajo and Cherokee tribes. The boy's parents voluntarily terminated their parental rights and the Brackeens petitioned to adopt him. After legal battles, they were able to keep him when a placement with a Navajo family fell through. They hope to adopt his younger half-sister, according to briefs.

McGill represents the Brackeens and a Minnesota couple, the Jason and Danielle Clifford, who were unable to adopt a child who lived with them after having been shuttled among foster homes. "The Cliffords' family was literally torn apart," he told the appeals court judges during arguments in March.

Dennis wrote for a panel that also included judges Jacques Wiener and Priscilla Owen. A footnote in the opinion said Owen dissented in part and would soon file a separate opinion.

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