In August, the 9th Circuit Court of Appeals threw out an Arizona case for procedural reasons. Attorneys representing children and families in Arizona and Texas argued the Indian Child Welfare Act is unconstitutional, as it puts the rights of tribes over the best interests of children.  

The Texas judgement is not legally binding because it was not a court order. It’s up to state officials how to respond to the decision.

The Goldwater Institute’s Timothy Sandefur is now asking the 9th Circuit to reconsider its decision.

“This shows that plaintiffs similar to the ones we’re representing have the right to bring these lawsuits and that the arguments we’re making are valid,” Sandefur said. “In fact the court agreed with them.”

The decades-old federal law gives adoption preference to biological family members, other members of the child’s tribe, and other Native American families. It was enacted at a time when children had been taken from their tribes and families at staggering rates.

The Texas court’s decision stunned Native American rights advocates, who say it could have a destructive impact on tribal sovereignty.