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South Dakota Supreme Court upholds constitutionality of Indian Child Welfare Act, contrary to October federal ruling

PIERRE, S.D. — The South Dakota Supreme Court upheld the constitutionality of the Indian Child Welfare Act in a ruling last week despite a recent ruling by a Texas federal judge to the contrary.

In his Oct. 4 decision, Judge Reed O'Connor, a federal judge for the Northern District of Texas, said the ICWA "coerces state agencies and courts to carry out unconstitutional and illegal federal policy, and decide custody based on race."

The ICWA was established in 1978 in response to findings that American Indian children were being disproportionately relocated from their tribes, and thus disconnected their cultures and extended families, as a result of adoption. For American Indian children who need to be rehomed, the ICWA establishes priorities for where those children should go: First, to family members in the tribe; second, a family within their tribes; third, another American Indian family; fourth, the public at large.

According to the National Indian Child Welfare Association, O'Connor's ruling "relied heavily on viewing ICWA as a race-based law that violates the Equal Protection Clause of the United States Constitution and exceeds Congresses authority under the Indian Commerce Clause" despite previous United State Supreme Court rulings which upheld the constitutionality of the ICWA.

In their Nov. 20 decision on a parental rights case, the South Dakota Supreme Court directly contradicted the Texas court's ruling, writing, "[W]e are not bound by the decision of the District Court in Texas and must presume that ICWA is constitutional."

The opinion, written by Chief Justice David Gilbertson, also noted the Texas ruling still may be appealed, and previous United States Supreme Court cases have established and upheld the ICWA as constitutional.

Minnesota tribal leaders decried O'Connor's ruling last month, calling for action to reverse the Texas court's ruling. The Texas decision could still be appealed to a higher court.

"We refuse to go back to the dark days before the enactment of the Indian Child Welfare Act, when our children were forcibly removed from their families and their communities by state courts and state agencies without recourse," said Darrell Seki Sr., chairman of Red Lake Nation, in an October news release.

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