Court appeals are being filed in response to a decision in early October by a federal judge in Texas which ruled the Indian Child Welfare Act (ICWA) was unconstitutional.

The ICWA is a 40-year-old law that was designed to prevent the separation of Native children from their parents and extended families by state child welfare and private adoption agencies.

The law was enacted in response to research at the time showing that of the approximately 35 percent of Native children who were being removed from parents, 85 percent were placed outside their families and communities, even when fit and willing relatives were available.

U.S. District Judge Reed O’Connor of the Northern District of Texas ruled Oct. 4 that the ICWA “illegally gives Native American families preferential treatment in adoption proceedings for Native American children based on race.” The ruling found that the law was in violation of the Fifth Amendment’s equal protection guarantee in the U.S. Constitution.

The Brackeen vs. Zinke case was brought by a Texas couple who sought to adopt a Native American baby – one whose biological parents were from the Cherokee and Navajo tribes. The couple fostered the baby from the time he was 10 months old to age two.

The couple initially sought to adopt the male child with the support of the baby’s biological parents.

But a family court in Texas prevented the plans, blocking the adoption on the grounds of the ICWA. The couple sued about a year ago and were joined in the suit by the states of Texas, Louisiana and Indiana.

The Cherokee Nation and several others intervened as defendants.

While the law does not bar non-Native American families from adopting or fostering Native American children outright, in order for a non-Native family to succeed, they have to show “good cause” that the child can’t or shouldn’t be adopted by other Native Americans – a main hurdle for the parents in this case, experts said.

The Cherokee Nation is planning to appeal the judge’s Oct. 4 ruling and expect the ICWA to be upheld.

Other Native American advocates, who work through the ICWA, say they are dismayed by the decision.

“For nearly forty years, child advocacy organizations across the United States have considered the Indian Child Welfare Act to be the gold standard of child welfare policy,” Tara Maclean Sweeney, assistant Interior Secretary for Indian Affairs, said in a statement.

“The Department of the Interior strongly opposes any diminishment of ICWA’s protections for Indian children, families, and tribes. The Department will continue to work with tribes and states to implement ICWA moving forward. We reiterate our support for ICWA’s goals of ensuring the safety of Indian children, maintaining Indian families, and promoting tribal sovereignty,” she continued.

Amory Zschach, strategic communications manager of the National Indian Child Welfare Association (NICWA), described the decision to the Seminole Tribune as “a blow to Indian Country.”

“[But] this is not the end of the case,” she said. “NICWA and our partners are mobilizing to challenge this egregious decision that ignores hundreds of acts by Congress and decisions by the federal courts that have upheld tribal sovereignty and rights of Indian people as expressed in laws like ICWA.”

Others, like attorney Brenda S. Golden, say the judge doesn’t have the power to strike down a federal law passed by the U.S. Congress – only Congress does.

“[The] ICWA was passed to address the proven wrongs of the state systems that would remove Indian children for bogus reasons and place them with non-Indian families,” Golden said.

“It was and is not about putting any person’s race above another’s. It is about keeping families together that deserve to be together,” she told the Seminole Tribune.

Golden is an attorney with the Muscogee Nation in Okmulgee, Oklahoma. She’s been a contractor with the Seminole Tribe’s Native Learning Center in Hollywood teaching Indian Law webinars.

Golden issued a caution about what the future might hold for the ICWA.

“Our culture and traditions can only continue if we teach our children and youth, but if they are taken away that cannot happen. ICWA has withstood attacks at the [U.S. Supreme Court] level before, however with the current makeup of the court, I fear for ICWA should it make it there again,” Golden said.