Veronica, 3, smiles in a bathroom of the Cherokee Nation Jack Brown Center in Tahlequah, Okla., on Aug. 6, 2013. A federal law that gives preference to Native American families in child-welfare proceedings involving Native children is facing a significant legal challenge. In 2013, the U.S. Supreme Court ruled the law didn’t apply in a South Carolina case involving Veronica because her Cherokee father was absent from part of her life. (Mike Simons/Tulsa World via AP, File)

NEW ORLEANS (CN) – Attorneys representing Native American tribes told a panel of Fifth Circuit judges Wednesday that a 1978 law that gives preference to Native American families when placing Native American children in foster care or for adoption is essential to preserving tribes’ culture and is not merely based on racial identification.

But attorneys representing opponents of the law, including seven individuals and three states – Louisiana, Texas and Indiana – say the law does not take into consideration emotional bonds between children and their caregivers and seeks only to make decisions based upon race.

Under the Indian Child Welfare Act, state and federal agencies must first attempt to place Native American children taken from their homes with an extended family member or community member in their tribe.

A federal judge in Texas last year ruled the law is unconstitutional, saying it’s based on race and violates the equal protection clause.

Lawyers representing the tribes, however, said tribal affiliation is not about race but community membership and politics.

More than 20 states and hundreds of tribes, advocacy groups and the federal agency that oversees Indian Affairs have joined the appeal, seeking to overturn the lower court’s ruling.

Eric Grant, an attorney with the Department of Justice, said the Indian Child Welfare Act relates to members of 573 recognized tribal entities.

Having tribal affiliation isn’t akin to belonging to a country club, Grant told the panel judges Wednesday. Rather, it is a membership in a community, “essentially, citizenship.”

The law was first enacted in 1978 in response to that “an alarmingly high percentage of Indian families [were being] broken up by the removal, often unwarranted, of their children from them by nontribal public and private agencies,” court documents say.

Studies of the time showed that roughly one-third of Native American children were being removed from their families by state and federal agencies and being placed with mostly non-Native American, white families or in boarding schools. The common perception was that the removals were due to ignorance of tribes’ social norms and values or possibly for reasons of poverty, the documents say.

Adam Charnes, who represents five intervening tribes, told the panel Wednesday that state and federal social workers remove upwards of one-third of Native American children from their families and the act is in place to keep those kids from losing touch with their tribal affiliation altogether.

“The fear is without the statute, Indian children will once again sort of disappear into the child welfare system and be lost to their families and their tribes,” Charnes told the AP.

Plaintiffs include a Minnesota couple, Jason and Danielle Clifford, who say their family has been “literally torn apart” after they were blocked from adopting a Native American girl who came to live with them after several different foster care placements.

Another couple, Chad and Jennifer Brackeen from Texas, were denied the right to adopt a baby belonging to both the Navajo and Cherokee tribes even though the child’s parents had given up their parental rights after the state located a potential home with a Navajo family in New Mexico. The Brackeens petitioned and were later able to adopt the boy.

Court documents say the Navajo Nation tried to have the child “removed from the home in which he had spent most of his life and given to an unrelated Navajo couple – simply because he was Indian.”

The Brackeens went to court and were able to adopt the child in January 2018 after the other placement fell through. The boy is 3 now and the couple is trying to adopt his younger half-sister, the document says.

Instances of Native American children not being placed with families simply because they were not tribe affiliated also include a high-profile 2016 case in which a young Choctow girl named Lexi was removed from a foster home in California and placed with her father’s extended family in Utah. Emotional pictures circulated of Lexi being carried from her foster home.

Charnes, the attorney for five intervening tribes, said during the hearing Wednesday that some of the plaintiffs, including the Brackeens, have no actual injuries on account of the act since they were able to adopt their son anyway, and because their attempt to adopt their son’s half-sister only came about since the lawsuit was initially filed and decided.

Charnes called cases such as the Brackeens’ “far too speculative” and said plaintiffs are asking the appeals court to ignore numerous Supreme Court rulings and overwrite Indian law.

Texas Attorney General Ken Paxton’s office issued a statement after the hearing saying his legal team demonstrated before the Fifth Circuit that the law is unconstitutional because it “requires that a child’s ‘best interest’ – normally the governing inquiry in child welfare proceedings – be subordinated to racial considerations.”

Panel judges included Jacques Weiner Jr., James Dennis and Priscilla Owen. The judges did not indicate how or when they will rule.