The Partnership for Native Children supports the decision by the Fifth Circuit Court of Appeals to stay the decision of Judge Reed O’Connor of the Northern District of Texas in Texas v Zinke. In erroneously declaring the Indian Child Welfare Act of 1978 (ICWA) unconstitutional, O’Connor’s decision remains a legal anomaly that disregards legal precedent. Multiple decisions have repeatedly affirmed the political relationship between Indian tribes and the U.S. government and rejected race-based arguments like the one erroneously embraced by O’Connor in this case.
To meet the factors to be granted a stay pending appeal, the tribal appellants addressed: (1) whether the stay applicant has made a strong showing that he is likely to succeed on the merits; (2) whether the applicant will be irreparably injured absent a stay; (3) whether issuance of the stay will substantively injure the other parties interested in the proceeding; and (4) [whether] public interest [favors a stay].
From our respective years of experience serving Native children and families in child welfare proceedings, we ardently agree with the appellants’ assertion that, without this stay, “the district court’s ruling will cause significant inconsistency throughout the country. As this Court noted in Bryant, when issuing a stay, ‘[t]he inevitable disruption that would arise from a lack of continuity and stability in this important area of the law’ will harm the parties and ‘the public interest at large.’”