ICWA Struck Down by Texas Federal Judge

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.

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