Fortunately, the full Fifth Circuit decided to hear the case en banc.
(We likewise did so before the Fifth Circuit panel and on the plaintiffs’ motion to rehear the case en banc.)
We argue that under ICWA, “Indian child” is a genetics‐based racial category and that ICWA does not constitutionally promote tribal sovereignty.
The government may not treat American citizens differently, as it does here, based on whether their genetic ancestry would qualify them for tribal membership.
For Congress to impose a racialized and non‐neutral regime on parents and children is not only unwise and unfair, but unconstitutional.