Thread by @indianz

OUCH: The partial dissent in the Indian Child Welfare Act case is finally out and it's not the greatest for the #DefendICWA campaign. Judge Priscilla Owen thinks certain parts of ICWA are unconstitutional "because they direct state officers or agents to administer federal law."

In the 9-page partial dissent, Judge Priscilla Owen identifies these provisions of the Indian Child Welfare Act as illegal:
* 25 U.S.C. § 1912(d)-requiring a state seeking to effect foster care placement of an Indian child to satisfy the court that active efforts have been made.

* 25 U.S.C. § 1912(e)-prohibiting foster care placement unless a State presents evidence from “qualified expert witnesses .. that the continued custody of the child by the parent or Indian custodian is likely to result in serious emotional or physical damage to the child”

* 25 U.S.C. § 1915(e)-requiring a “record of each such placement, under State law, of an Indian child shall be maintained by the State in which the placement was made, evidencing the efforts to comply with the order of preference"

And: "Regulations requiring States to maintain related records also violate the Constitution," Judge Priscilla Owen of the 5th Circuit Court of Appeals writes in her partial dissent in the Indian Child Welfare Act case. #DefendICWA

The 9-page partial dissent in Brackeen v. Bernhardt is here: indianz.com/News/2019/08/1… #DefendICWA

Judge Priscilla Owen famously told the state of Texas during oral argument that Indian children are not "your children." But she lives up to her conservative reputation by applying the so-called "anticommandeering doctrine" to the Indian Child Welfare Act. #DefendICWA

Judge Priscilla Owen's partial dissent in the Indian Child Welfare Act case: "The Supreme Court has made clear that Congress cannot commandeer a State or its officers or agencies." She then quotes from a recent case that opened the door to sports betting for states and tribes.

The "anticommandeering doctrine" has become a cause in conservative circles, as a way to limit federal government powers in favor of states. Texas relied on the doctrine in the Indian Child Welfare Act case and it looks like it paid off with a judge who happens to be from Texas.

Texas Attorney General Ken Paxton, a Republican, is already planning further appeals in the Indian Child Welfare Act case and the partial dissent gives him ammunition to strike down portions of the law designed to keep Indian children connected to their communities. #DefendICWA