Okay. So, this doesn’t create legal precedent in California. Further, I have no doubt that if given the opportunity, the 9th Circuit and/or the California Courts of Appeal would disagree with the Texan Federal Judge in this case. However, this is a concept that I have struggled with for some time. Essentially, when a law “discriminates” (not in a discriminatory sense–I know that is confusing), on the basis of a protected class (including race, i.e. Native American Ancestry), then the Courts must apply something called Strict Scrutiny. To pass strict scrutiny, the legislature must have passed the law to further a “compelling governmental interest,” and must have narrowly tailored the law to achieve that interest. (Any law student reading this is having a PTSD moment right now)
So, this Judge says no dice. He doesn’t think the Indian Child Welfare Act (“ICWA”) which forces the courts to place a removed child with a fellow Native American family member or the tribe passes that test. I tend to agree.
An article regarding the decision is here.