by Timothy Sandefur

A federal judge in Texas has ruled that a lawsuit brought by three states and several families challenging the constitutionality of the Indian Child Welfare Act (ICWA) can proceed to trial. In a 40-page decision, Judge Reed O’Connor concluded that families whose efforts to adopt needy Native American foster kids were barred by ICWA’s race-based adoption restrictions could make their case. They had “attempted to adopt Indian children and, because they themselves were not Indian, faced heightened burdens” under ICWA, and in some cases, they had had foster children “removed from their home because of the ICWA placement preferences.”

Judge O’Connor ruled that the states of Texas, Indiana, and Louisiana could also sue, because ICWA essentially forces states “to change their domestic relations laws as they relate to adoptions of Indian children.” In other words, because adoption and foster care law are matters of state concern, states are free to argue that federal laws that interfere with such matters are unconstitutional.

That’s a welcome development, because although state attorneys general have the ultimate obligation to protect the best interests of needy children in their states, they’ve often been reluctant to challenge ICWA, a law that makes it harder to protect Native American kids from abuse and neglect and creates a barrier against adoption that leaves many children without the stable, permanent homes they need. Recently, attorneys general in Texas, Indiana, Louisiana, and Ohio have stood up for the rights of these children against ICWA—which, though well-intended, has resulted in deleterious consequences not just for Indian children, but for Indian parents as well.

Being only a procedural ruling on whether the case can go forward, the decision doesn’t take a stand on the constitutionality of ICWA, but it does directly conflict with the decision of the Arizona federal district court last year, which ruled that families in a similar situation as the families in the Texas case could not sue. The court found that the families who had been subjected to ICWA’s race-based restrictions against adoption had not been legally “injured” because in the end they’d been allowed to adopt. The Texas decision rejects that reasoning. The families, said Judge O’Connor, have faced “additional barriers, due to the ICWA” which “have delayed” adoptions from proceeding. That’s also true in the Arizona case, which is now on appeal to the Ninth Circuit.

Today’s decision is only a first step—but Judge O’Connor has set a hearing for the summary judgment motions for August 2. That’s when lawyers from the state and parent plaintiffs and the tribes will make their final arguments over ICWA’s constitutionality.

To learn more about the Goldwater Institute’s Equal Protection for Indian Children project, click here.

Timothy Sandefur is the Vice President for Litigation at the Goldwater Institute’s Scharf-Norton Center for Constitutional Litigation.