NEW ORLEANS — A 1978 law giving preference to Native American families in foster care and adoption proceedings involving American Indian children was getting a second look Wednesday from a federal appeals court in New Orleans.
A three-judge panel of the 5th Circuit Court of Appeals in New Orleans upheld the Indian Child Welfare Act in August in a 2-1 ruling.
Opponents of the law — including non-Indian families who have sought to adopt American Indian children — sought and got a rehearing. On Wednesday, the court’s 16 active judges were expected to hear arguments.
Emotions run high in the case. Tribal officials say a loss in court could lead to Native American children being lost to families and tribes, contributing to the erosion of tribal cultures. The other side includes non-Indian families who say their lives have been upended as they fought to adopt children. Among them are a Minnesota couple, plaintiffs in the case, who wanted to adopt a girl who had lived with them.
The legal arguments focus on questions of race and constitutional limits on the federal government.
Opponents of the law say it is an unconstitutional race-based intrusion on states’ powers to govern adoptions.
The August 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 not based solely on race because “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 on behalf of himself and Judge Jacques Wiener.
Opponents of the law cite a dissent by Judge Priscilla Owen as part of their argument that the law and regulations implementing it are an unconstitutional overreach by the federal government into state matters.