In the recent case of Brackeen v. Zinke, Case 4:17-cv-00868-O, A Texas Federal Court in Forth Worth declared that the Indian Child Welfare Act categorizes children in the State's Welfare system by race, not membership or eligibility for membership in a tribe, and that these classifications based on a child's race gives illegal racial preferences. The Federal Court also struck down provisions of the Federal Law known as ICWA that allow Native American Indian Tribes the ability to intervene as a matter of right in CPS cases. Judge Reed O’Connor stated in his opinion “No matter how defendants characterize Indian tribes—whether as quasi-sovereigns or domestic dependent nations—the Constitution does not permit Indian tribes to exercise federal legislative or executive regulatory power over nontribal persons on nontribal land.” The basis of this opinion comes from a non Indian family that wished to adopt a minor child that was placed in their care after being removed by Texas CPS. The couple seeking adoption, along with the Texas Attorney General, brought this action in the Federal Court alleging that ICWA violates equal protection rights by imposing a race-based test for where a child with a Native background should be placed: first with extended family, then other members of the child’s own tribe, then other Native people, and, if none of those options are available, to any other fit placement. The Couple argued that the this standard violates the primary function of the Family Court which is to determine the best interest of the child of every child on a case by case basis.
